Carlton and Larry
[2014] FCCA 94
•14 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CARLTON & LARRY | [2014] FCCA 94 |
| Catchwords: FAMILY LAW – Children – father seeks equal time – mother opposes equal time – involvement of Child Protection and police – parties blame each other – shared care not recommended by forensic psychologist – parental responsibility. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZN Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 |
| BC and TC (2005) FLC 93-224 Sigley & Evor [2011] FamCAFC 22 |
| Applicant: | MR CARLTON |
| Respondent: | MS LARRY |
| File Number: | MLC 10330 of 2012 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 14 and 15 November 2013 |
| Date of Last Submission: | 15 November 2013 |
| Delivered at: | Launceston |
| Delivered on: | 14 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Eidelson |
| Solicitors for the Applicant: | Carew Counsel Pty Ltd |
| Counsel for the Respondent: | Ms Portelli |
| Solicitors for the Respondent: | Schetzer Constantinou |
ORDERS
That MR CARLTON (“the father”) and MS LARRY (“the mother”) have equal shared parental responsibility for X, born (omitted) 2007 (“the child”).
That the child live with the mother.
That the child spend time and communicate with the father as follows:
(a)until the conclusion of the school holiday at the end of the child’s second school term in 2014 as follows:
(i)each alternate weekend from after school on Friday (or 3:00p.m. if it is not a school day) until before school on the following Monday or 9:00 a.m. if it is not a school day);
(ii)each Wednesday from after school until 7:30 p.m. (or from 3:00 p.m. until 7:30 p.m. if it is not a school day); and
(iii)for a period of five nights as agreed between the parties during the school holiday at the end of the child’s second school term in 2014 (but in default of agreement for the first five nights of that school holiday).
(b)after the conclusion of the school holiday at the end of the child’s second school term in 2014 as follows:
(i)each alternate weekend from after school on Friday (or 3:00p.m. if it is not a school day) until before school on the following Monday or 9:00 a.m. if it is not a school day);
(ii)each second Wednesday from after school (or 3:00 p.m. if it is not a school day) until before school on the following Thursday (or 9:00 a.m. if it is not a school day);
(iii)each other Wednesday from after school until 7:30 p.m. (or from 3:00 p.m. until 7:30 p.m. if it is not a school day);
(iv)for a period of one week during each school holiday period as agreed between the parties, but in default of agreement for the first week of the relevant holiday period in even numbered years and the last week of the relevant holiday period in odd numbered years.
(c)by telephone at all reasonable times;
(d)from 10:00 a.m. until 3:00 p.m. on Father’s Day if the child is not otherwise with the father pursuant to these orders;
(e)from 3:00 p.m. on Christmas day until 3:00 p.m. on Boxing Day in even numbered years and from 3:00 p.m. on Christmas Eve until 3:00 p.m. on Christmas day in odd numbered years; and
(f)on such further or other terms as may be agreed between the father and the mother from time to time.
That in the event that the child is spending time with the father pursuant to these orders on Mother’s Day, that time is to conclude at 10:00 a.m. on Mother’s Day and the child must be returned to the mother by 10:00 a.m. on that day.
That the father and the mother must attend upon a psychologist or counsellor (“the counsellor”) to be nominated by Dr M for counselling in relation to the issues raised in the Family Report prepared by Dr M dated 31 October 2013 (“the Family Report”) and for that purpose:
(a)the counsellor is to be provided with copies of the Family Report and the Reasons for Judgment of Judge Roberts in this matter;
(b)the child is to take part in the counselling process as requested by the counsellor; and
(c)all reasonable costs incurred in relation to compliance with Order No. 5 hereof are to be shared equally between the parties unless otherwise ordered.
That within three months of today the father must attend the courses referred to in Order No. 12 of the orders of Judge Hughes of 12 February 2013 and the father must provide to the mother’s solicitor documentary evidence of his completion of those courses within 14 days of his completion of each course.
That this matter be listed for mention before Judge Roberts in Launceston at 9:30 a.m. on 27 March 2014 with leave granted to the parties’ lawyers to appear at that time by telephone, provided that they inform Judge Roberts’ Associate of the telephone numbers upon which they can be contacted at least two working days in advance of that mention.
IT IS NOTED that publication of this judgment under the pseudonym Carlton & Larry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10330 of 2012
| MR CARLTON |
Applicant
And
| MS LARRY |
Respondent
REASONS FOR JUDGMENT
The parties in this matter are MR CARLTON (“the father”) and MS LARRY (“the mother”). Their dispute is about the parenting arrangements for their only child X, born (omitted) 2007 (“the child”).
Applications
Although the parties are also seeking orders for property settlement, I am only dealing with their competing applications for parenting orders in these Reasons.
By the end of the hearing the father was seeking orders to provide for the following:[1]
[1] See Exhibit “H2”
a)That the parents have equal shared parental responsibility for the child.
b)That the child live with the father as follows:
i)each alternate weekend from after school or at 3:30 pm on Friday until the following Monday at the start of school or at 9:00 am;
ii)the time is referred to in (i) above be increased by one night from the start of each month until the child is living with the father on an alternating weekly basis;
iii)in odd numbered years from 3:00 pm on Christmas Eve until 3:00 pm on Christmas day;
iv)in even numbered years from 3:00 pm on Christmas day until 3:00 pm on Boxing Day;
v)on the child’s birthday from 3:30 pm until 7:30 pm
vi)for half of each summer school holiday, being the first half when the summer school holiday starts in December of an even numbered year and the second half when the summer school holiday starts in December of an odd numbered year;
c)That the child live with the mother at all other times.
d)That the parties each be restrained from denigrating the other or from discussing these proceedings with the child or in her hearing.
e)That the father attend upon a psychologist to address issues and concerns raised in the report of Dr M dated 31 October 2013 with the parties sharing the costs of that psychologist.
The mother seeks orders that will provide for the following:[2]
[2] See Exhibit “W3”
a)That the parents have equal shared parental responsibility for the child.[3]
[3] Exhibit “W3” refers to “joint parental responsibility”, but nothing turns upon that.
b)That the child live with the mother.
c)That the child spend time and communicate with the father as follows until the conclusion of semester one in 2014:
i)each alternate weekend from Friday after school or at 3.00 pm until the start of school on Monday or at 9.00 am;
ii)each Wednesday from after school or at 3.00 pm until 7.30 pm;
iii)during the July school holidays for a period of five nights, as agreed between the parties but in default of agreement from the start of the school holiday period;
iv)by telephone at all reasonable times.
d)That the child spend time and communicate with the father from the start of semester two in 2014 and thereafter as follows:
i)each alternate week from after school or 3.00 pm on Friday until the start of school or 9.00 am on Monday;
ii)each alternate Wednesday from after school or 3.00 pm until 7.30 pm;
iii)from 10.00 am until 3.00 pm on Father’s Day “should this fall on a non-contact weekend”;
iv)from 3.00 pm on Christmas day until 3.00 pm on Boxing Day in even numbered years and from 3.00 pm on Christmas Eve until 3.00 pm on Christmas day in odd numbered years;
v)for a period of one week during each school holiday period, as agreed between the parties, but in default of agreement for the first week of the holiday in even numbered years and the last week of the holiday in odd numbered years;
vi)by telephone at all reasonable times.
e)That the father’s time with the child be suspended:
i)from 10.00 am on Mother’s Day and the child be returned to the mother if that day “falls on a contact weekend”.
ii)from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years and from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in even numbered years.
f)That the parties attend upon a psychologist for the purposes of discussing issues raised in the report prepared by Dr M, and for the purposes of such counselling that psychologist be provided with a copy of her report.
g)That the father attend a Post Separation Parenting Course as soon as practicable and provide a certificate of completion to the mother.
h)That both parties be restrained from denigrating or allowing any other person to denigrate the other in the presence or hearing of the child.
Background
Where I refer to facts in these Reasons, they should be regarded as findings of fact, unless a contrary intention is clear from the context, particularly when there is a dispute between the parties in relation to those facts.
Both parties’ parents are of (country omitted) origin. The father is almost 42 years of age and the mother is approximately 3 months older than him. They met when they were 26 years old and commenced living together upon their marriage approximately 4 years later when they were both 30 years old.
The parties moved to London in 2004 and returned to Australia in 2006.
The child was born in (omitted) 2007 and is now nearly 7 years old.
The parties separated on 6 July 2012 when officers of the Department of Human Services (“DoHS”) and police officers attended at their home. Proceedings were instituted by DoHS in the Children’s Court (“the Protection Application”) and an Interim Intervention Order was made against the father.
On 11 July 2012 the protection application was adjourned to enable DoHS to conduct further investigations. The father then spent time with the child supervised by DoHS or the paternal grandparents for a minimum of four hours twice per week.
On 17 August 2012 a team leader from DoHS prepared a report for the Melbourne Children’s Court [4] which contained the following at page 9:
During the 6 week assessment period both parents were observed to be appropriate with [the child] and that [the child] was equally happy in the care of either parent. No protective concerns were raised for [the child] during the assessment period although the initial report received by CP was highly concerning.
[4] See Annexure “DC1” to the father’s first affidavit
That report went on to note that the parties were likely to engage in proceedings in “the Family Law Court” and stated:
At this time, DoHS request that the matter be struck out and as such are not seeking for the grounds of the application to be proven.
The father commenced the proceedings in this Court by filing an Initiating Application on 12 November 2012 in which he sought both parenting and property orders. The wife filed her Response on 30 January 2013.
On 31 January 2013 interim consent orders were made. Those relating to parenting issues provided for the child to live with the mother and spend time with the father:
·on Wednesdays from 3.30pm or the conclusion of school until 6.00pm;
·on Saturdays from 10.00am until 4.00pm; and
·at such further or other times as agreed between the parties in writing.
Further consent orders were made on 12 February 2013, which included an order for the privately funded Family Report. Other relevant orders were:
10. The child … spend time with the Husband as follows:
(a) Commencing Saturday 16 February 2013 each alternate weekend from 10am Saturday to 5pm Sunday;
(b) On 19 and 26 February 2013 from after school (3:30pm) to 6pm each Tuesday;
(c) From 5 March 2013 each Tuesday night from after school (3:30pm) to before school (9am) Wednesday morning with the Husband to collect and return the child to school save as otherwise agreed.
(d) The Husband's time with the child conclude 1:00pm on Easter Sunday.
(e) On the child's birthday from 3:30pm to 5:30pm.
(f) On Mother's Day weekend the Husband's time with the child conclude at 10am on Sunday;
(g) Such further times as agreed.
10A. All non-school changeover occur at the Mother's residence.
11. The parties by themselves, their servants and / or agents, be and are hereby restrained from abusing, denigrating, insulting the other to or in the presence or hearing of the child or discussing these Court proceedings.
12. The Father attend upon an agreed organisation for the purposes of:
(a) anger management course and
(b) post-separation parenting course
and provide copies of certificates of completion of same to the other side.
13. The Mother attend for the purposes of personal counselling to assist with the implementation of these Orders with such counsellor to be provided with DHS Report dated 17 August 2012 and Ms B of (omitted) dated 16 August 2012.
There were some difficulties in relation to the time that the child spent with the father on Tuesdays and the parties agreed instead that she would spend time with the father each second weekend from 10.00 am on Sunday until the start of school on Monday.
The parties competing applications for parenting orders were heard on 14 and 15 November 2013 and I shall refer to those days as “Day 1” and “Day 2”.
Relevant law
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration.[5]
[5] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [6]
[6] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children.[7]
[7] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC of the Act. That section was amended in some respects by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, and those amendments are applicable because these proceedings were commenced on 12 November 2012.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[8] The amendments referred to in the paragraph immediately above now require courts to give greater weight to the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence than is given to the benefit to the child of having a meaningful relationship with both parents.[9]
[8] Subsection 60CC(2)
[9] Sub-section 60CC(2A)
The court must also take into account those of the “additional considerations” that are relevant.[10]
[10] Subsection 60CC(3)
There has been some debate about whether the “primary considerations” should be automatically given more weight than the “additional considerations”, simply because of the use of the word “primary” in the section, but it is my view that each consideration (whether “primary” or “additional”) should be given the weight it deserves in the light of the facts of the particular case.[11]
[11] See Mulvaney & Lane (2009) FLC 93-404 at paragraphs 76 and 77 and Champness & Hanson (2009) FLC 93-407
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence.[12] The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[13] In this regard, Murphy J said:
The statutory presumption is rebuttable in circumstances where the court has reasonable grounds to believe that a parent has engaged in abuse or violence or where it is in the best interests of the children for that presumption to be rebutted. In the latter case, then, the s 60CC findings as to best interests are again called into use. [14]
[12] Section 61DA
[13] Subsection 61DA(4)
[14] See Runcorne & Raine [2008] FamCA 837 at paragraph 24
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[15]
[15] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[16]
[16] See subsections 65DAA(2) and (3)
It is clear that the court is not restricted to considering only the proposals put forward by the parties.[17]
[17] See KB and TC (2005) FLC 93-224
The evidence
The father relied upon affidavits filed 12 November 2012, 11 February 2013 and 11 November 2013. I will refer to them as his first, second and third affidavits respectively.
The mother relied upon two affidavits filed 29 January and 13 November 2013. I will refer to them as her first and second affidavits.
The parties obtained a privately funded Family Report by Dr M, a psychologist. For convenience, I shall refer to her as “the Court Expert” and to her report as “the Family Report”.
The parties and the Court Expert were all cross-examined.
General comments
At the start of the hearing the father’s counsel referred to the attendance at the parents’ home on 6 July 2012 by DoHS and police as a “visit”. However, he clearly warmed to his task and later in the hearing the father’s counsel referred to that joint visit as a “raid”,[18] and even later he referred to the police and DoHS officers involved as “storm troopers”.[19] Having considered the evidence, it is my view that those labels are unfair to both DoHS and the police. While the unannounced visit by DoHS and police would most certainly have been upsetting and stressful for the parties and the child, one needs only to refer to Annexure “C1” to the father’s first affidavit to understand why a decision was made to attend at the parents’ home without any advance warning.[20] It reads as follows at page 4:
Given this was the third notification in relation to [the] 5 year old [child] and the current report depicted significant family violence, that the family had been evasive during previous involvement in 2010 and that it appeared at this time [the mother] was withdrawing from support services due to her fear [the father] would reprimand her for speaking to others about their private life. Significant concern was held in relation to [the child]’s safety and well-being if Child Protection visited the family and [the father] had become violent towards [the child] and [the mother] as a result. The services [the mother] had been involved with were alarmed she had begun to disengage and that [the child] had commented at pre-school that ‘daddy is mean to mummy’. With previous police attendances and an IVO, the decision had been made to conduct a joint visit with Police on the 06/07/12 whereupon Protection Application paperwork was served in the morning with the intention of attending the Melbourne Children’s Court the same day. At a court hearing on this day, an IAO was issued to the mother with conditions.
[18] Transcript: Day 1 at page 66
[19] Transcript: Day 2 at page 82
[20] See Annexure “C1” to the father’s first affidavit.
In my view it was inappropriate to refer to the DoHS officers and the police in such disparaging terms, especially when one also refers to the forensic psychological report in relation to the father obtained by DoHS.[21] That report shows that the father conceded in August 2012 that police had been involved in the parties’ disputes on many occasions,[22] so it was a little disingenuous for the father to instruct counsel to portray DoHS and the police as the villains.
[21] Annexure “C2” to the father’s first affidavit
[22] For example, see paragraph 29
I point out that those charged with the administration of the Child Protection laws of this country do not have an easy task, and when there is a possibility of risk to a child, it is sometimes wise to “act swiftly and ask questions later”. While it is true that DoHS decided not to continue with the Children’s Court action in relation to this particular child; that decision was made after a reasonably thorough assessment of risk over a period of approximately six weeks, which included psychological assessments of both parents.
It was necessary on a number of occasions for me to suggest to the father’s counsel that his questions were not being put fairly. Not only did he interrupt the mother before she had a chance to answer his questions fully, but he also phrased some of his questions in ways that were not factually based. For example, he suggested that on 12 February 2013 the mother had only wanted the father to spend six hours per week with the child until the matter came on for a hearing.[23] That was factually inaccurate because the mother’s proposal on 12 February 2013 had been that the father should have time with the child as follows:
a)each Wednesday from 3.30pm until 6.00pm: and
b)each alternate weekend from 5.00pm Saturday to 5.00pm Sunday commencing the second weekend following the conclusion of term one or the completion by him of a post-separation parenting course and an anger management course.
[23] See Transcript: day 2 at page 93
The hand-written note of the mother’s proposal of 12 February 2013 remains on the court file.
Another example of the father’s counsel putting matters unfairly was his consistent reference to the mother having suggested that the father and his sister had been in an incestuous relationship. In fact, the mother clearly denied that in her first affidavit[24] and she continued to deny it on a number of occasions during cross-examination by the husband’s counsel.[25] Notwithstanding the mother’s denials, the husband’s counsel still used the word “incestuous” in his cross-examination of the Court Expert even when he appeared to acknowledge that she had not used that word. He said:
She says she had some concern - she doesn’t rate it higher than that - that the father was, in some way, having, I call it an incestuous relationship with his sister. She says “intimate” in her affidavit.
[24] At paragraph 12(x)
[25] See Transcript: Day 1 at page 68
The mother did not use the word “intimate” in either of her affidavits. Indeed she specifically denied it in response to what the father had alleged in his first affidavit. The father had said this at paragraph 8(g):
The Wife has also made an allegation during the recent involvement of the Department of Human Services that I have had a sexual relationship with my sister. This is completely preposterous and very worrying that the wife would either be fabricating this story completely, or in her own mind have this as a legitimate thought.
The mother’s response to that particular paragraph was:
As to paragraph 8(g), I confirm I was concerned about the very close relationship between the Husband and his sister. I deny making an allegation that they undertook a sexual relationship.[26]
[26] See paragraph 12(x) of the mother’s first affidavit
The only use of the word “intimate” in relation to the father’s relationship with his own sister appears in paragraph 6 of the Mental Health Assessment of the mother dated 16 August 2012 prepared for DoHS by a consultant forensic psychologist.[27] It refers to “information provided” about the mother’s concerns and states: “She suspects [the father] has had an intimate relationship with his sister because they are close and his sister is flirtatious”. However, it is clear from the context of that whole report, that the “information provided” did not come directly from the mother, but came from DoHS. Consequently, it should not be put any higher than an interpretation by an officer of DoHS of what the mother may have said at some earlier time. However, it is also clear from Exhibit “H1” that the mother did not suggest that there had been an incestuous relationship when she was directly questioned about that by the forensic psychologist.[28]
[27] Exhibit “H1”
[28] See paragraph 22 of Exhibit “H1”
Notwithstanding all of that, in his closing submissions the father’s counsel stated that one of the mother’s “extraordinary and bizarre allegations” was that “he has had intimate relations with his sister, based on nothing”. In my view, that submission was not based upon a proper assessment of the evidence.
It is clear from the accounts of both parties that their relationship deteriorated and became quite volatile after they married. They give different explanations for that deterioration and volatility, but it is very clear that they each see the other as being almost entirely to blame.
The Court Expert stated the following about the father in the Family report :
He also presented as being very keen for more time with [the child], and very sure that it is the mother’s fault that [the child] is reluctant, but without any understanding of how his own actions and behaviours may have contributed, either previously or now, and without really understanding how important it is to manage the anxiety, no matter how it came about. He also presented as being very set and rigid and righteous in his views, and to some extent he appeared to see himself as the victim in all of this; and ultimately, he seemed unable or unwilling to understand [the child]’s emotional experiences and psychological world …[29]
[29] Family Report at paragraph 12
She said this about the mother:
She also presented as being extremely fixed on her views, and very reluctant to entertain anything different; and she too seems to be blanketly blaming the father for everything, and particularly for [the child]’s anxiety and reluctance, without realising just how much influence her views, opinions, actions, behaviours, and cues are also impacting [the child], and possibly more so than anything else.[30]
[30] Family Report at paragraph 24
Neither the father nor the mother appears to understand that they have each contributed to the difficulties that the child has experienced (and continues to experience). For example, the Court Expert said this about the father in the Family Report:[31]
Interviews and observations revealed that the father is of the opinion that the mother is needy and has psychological problems that she can’t help, and thus she does not, and cannot provide an emotionally and psychologically stable environment for [the child]; and he believes that this is why [the child] is struggling at school; whilst in contrast, he believes that he can provide a stable environment for [the child], and he believes he is more selfless and more in tune with her needs.
[31] Family Report at paragraph 57
She said this about the mother:[32]
In contrast, the mother is of the opinion that [the child]’s extreme reluctance to spend time with the father must be about something he is doing, and she is concerned that it is about his alleged anger and personality issues, his alleged negativity and tendency to not deliver on promises, and his alleged failure to communicate and show [the child] the same kind of love she does …
[32] Family Report at paragraph 60
It was put to the Court Expert during cross-examination that the rigidity of each party’s personality mirrored the other. She agreed and said that when she put different scenarios to them “they had this sort of blanket view that everything was the other person’s fault” and “neither of them would be able to even contemplate that different scenario so they were both exactly the same in that way”.[33]
[33] Transcript: Day 2 at page 126
I accept those observations by the Court Expert.
Unfortunately, both parents’ blaming of each other and their lack of insight into their own contributions to the child’s anxiety has infected the way in which they have conducted their dealings with each other since separation, and how they have conducted these proceedings.
My general assessment of the parents’ evidence was that, while they were not deliberately being dishonest, their individual perceptions tended to make them see situations in very different ways. It is illustrative to refer to emails that passed between the parties less than a month before the hearing.[34] On 27 October 2013 the mother sent the following email to the father:
I am most disappointed that you didn’t wait the extra 15 mins on Saturday 26/10/13 morning whilst I got [the child] ready for your overnight access. I went outside at 10.15am to look for you but your car was gone. I had an appointment that day and I had to take [the child] with me. Let me remind you I have had to wait for you on numerous occasions when you have been late to pick up [the child].
[34] See Exhibit “W1”
While the mother’s comments in the last sentence of that email were probably unhelpful, the father’s responding email sent that same day did him absolutely no credit. It read:
You are a vicious and conniving liar. Do you really believe that emailing false assertions will magically turn them into facts? You have at every turn, thwarted every contact with my daughter. I cannot call her and cannot see her. I will see you in court, because only in court will my rights be respected.
While his email would have been unlikely to encourage cooperative parenting, it should also be seen in the context of the events of 26 October 2013. In his third affidavit the father said this:
35. There have been occasions when the Wife has simply breached the Orders and not allowed me to spend time with [the child] at all. On the weekend of October 26th and 27th, she refused weekend access by saying [the child] had a sore leg and could not attend ballet. Neither was I warned, that Saturday morning I presented at the normal time of 10am to the family home and the Wife simply refused to allow me to collect [the child] even though I could have quite easily cared for her if she had a sore leg. I say this behaviour correlates with the fact the final court hearing was approaching and the parenting issues intensifying.[35]
36. Again, for me it was an indication that the Wife’s behaviour and attitude towards my role in [the child]’s life and her transference of her own issues onto [the child] have not improved over six months under the current arrangements. I say that increasing my time with [the child] needs to occur quickly, particularly during the upcoming summer break, which will provide a shield for [the child] from the Wife’s issues.
[35] My emphasis
When he was cross-examined about the events of 26 October 2013, the father admitted that he mother had said to him: “[The child] has a sore leg. She fell off the monkey bars. Wait 15 minutes while I get her ready to come to access”. Then, after a relatively lengthy but unhelpful explanation, the father admitted that he had not waited as asked by the mother, but he had left the mother’s home without the child.[36] In my view, that is a very different scenario from that portrayed in paragraph 35 of his third affidavit as set out above.
[36] Transcript: Day 1 at pages 26 and 27
I am also concerned that the father was very quick to see some apparent support in the Family Report for his criticisms of the mother, but clearly rejected anything in the Family Report that did not support his position. In his third affidavit he said this at paragraph 38:
I have read the contents of the Family Report prepared in this matter by Dr M. I note that Dr M confirms that the Wife’s behaviour is having a detrimental impact on [the child]’s relationship with me and that she shows little insight into how she is contributing to this. I disagree with Dr M’s recommendation that the way forward to resolve this problem for [the child] is to proceed slowly with any increase in time with me. My belief is that we need to “normalise” my relationship with [the child] sooner rather than later and that a week about arrangement would minimise changeovers and shield [the child] from the Wife’s behaviour.
The father then proceeded to “take issue with the report” over the next three pages of his third affidavit.[37] I do not propose to detail all he said, but will simply say that his “issues” with the Family Report give me cause for concern that the father lacks insight into the effects of his own actions and attitudes. He appears unable to accept his share of responsibility for the difficulties that have beset this family.
[37] See sub-paragraphs 39(a) to (j)
In our judicial system, proceedings generally follow an adversarial format. Unfortunately, that sometimes results in parties (and even their lawyers) quite wrongly falling into the trap of unnecessarily belittling the qualities and actions of the other party in order to advance their own positions. That does not accord with the principles for conducting child-related proceedings as set out in section 69ZN of the Act.
In this matter, there appeared to be a willingness on the part of the father and his legal team to criticise the mother for failings that they appeared to ignore in the father. For example, counsel for the father made much of the Mental Health Assessment of the mother dated 16 August 2012 when cross-examining the Court Expert. He quoted paragraph 61,[38] which reads:
Overall her capacity to meet [the child]’s daily needs appears to be very good, but her capacity to ensure [the child] is not involved in the conflict with [the father] is marginal.
[38] See Exhibit “H1”
The father’s counsel then put it to the Court Expert that paragraph 61 was “a serious criticism” of the mother and the Court Expert agreed.[39] However, I consider that there was a significant level of hypocrisy in the way that was put to the Court Expert, because the father’s own Mental Health Assessment of 19 August 2012[40] contains very similar “serious criticism” about him. For example, paragraph 99 reads in part:
Although [the father] expressed some awareness that the conflict between himself and [the mother] was threatening [the child]’s safety and well-being, he appeared to minimise these concerns, instead focusing on the damage to her well-being that he believes [the mother] is responsible for (i.e., he focused on her having an overly controlling, restrictive and protective parenting style, rather than the impact of their conflict and the likely impact if the conflict continues and they are unable to work together as parents). [The father] demonstrated minimal insight into how his behaviour may have contributed to the conflict between himself and [the mother].
[39] Transcript: Day 2 at page 137
[40] See Annexure “C2” to the father’s first affidavit
And paragraph 107 reads as follows:
Of concern is [the father]’s ability to moderate his attitudes and behaviours towards [the mother] to ensure that the child is not exposed to or affected by their significant conflict. Although he acknowledged that [the child] has been exposed to and likely affected by their conflict, [the father] presents as placing responsibility for this on [the mother] and as lacking in insight regarding his role in the conflict.
In my view, it is worth stating that one of the principles in section 69ZN of the Act is that “the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties”.[41] However, that principle did not appear to be very evident in the conduct of these proceedings.
[41] Subsection 69ZN(6)
Discussion
I will consider further relevant evidence in the light of the considerations under section 60CC of the Act.
Primary considerations
The benefit of having meaningful relationships with both parents
The term “meaningful relationship” in relation to section 60CC has been considered in a number of decisions. In Mazorski and Albright,[42] Brown J said this at paragraph 26:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one
[42] Mazorski and Albright (2007) 37 Fam LR 518
The Oxford Dictionary of English[43] defines “meaningful” as “serious, important or worthwhile”, and I consider that “worthwhile relationship” is synonymous with “meaningful relationship” for the purposes of section 60CC.
[43] iPad 2nd Edition revised
In Godfrey & Sanders,[44] Kay J (sitting as the Full Court) said:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child's parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case. [45]
[44] Godfrey & Sanders [2007] FamCA 102 (23 February 2007)
[45] At paragraph 33
He went on to say that “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.[46]
[46] At paragraph 36
Although there has been some criticism of that last comment by Kay J in Godfrey & Sanders by a well-respected former judge of the Family Court of Australia,[47] I note that the Full Court of the Family Court of Australia has referred to those comments by Kay J on at least three occasions without apparent criticism.[48]
[47] See the article by Prof. Richard Chisholm: “The meaning of ‘meaningful’: Exploring a key term in the Family Law Act amendments of 2006” in (2008) 22 Australian Journal of Family Law, commencing at page 193.
[48] See Moose & Moose (2008) FLC 93-375 at paragraph 70 (May, Boland and O'Reilly JJ), McCall & Clark (2009) FLC 93-405 at paragraph 116 (Bryant CJ, Faulks DCJ and Boland J) and Sigley & Evor [2011] FamCAFC 22 at paragraph 135 (O’Ryan, Strickland and Benjamin JJ)
Clearly, the benefit to a child of having a meaningful relationship with both parents is one of a number of factors to be considered under section 60CC, but nowhere in the Act does it state or imply that having a meaningful relationship with both parents “trumps” all the other considerations under section 60CC. It is a matter of the weight to be attributed to each relevant factor in the specific circumstances of the particular case. I repeat that Kay J said in Godfrey & Sanders that section 60CC “does not seek to mandate that any one or other matter becomes determinative in any particular case”.
Although both parties in this matter appear keen to blame the other for their problems, neither is suggesting that the child should not have a meaningful relationship with the other parent.
Protecting the child from harm from abuse neglect or family violence
Sub-section (2A) of section 60CC now requires that, in applying the considerations set out in subsection (2), I am to give greater weight to the consideration set out in paragraph (2)(b).
There is no suggestion that the child has been harmed by either abuse or neglect. However, the parties are in dispute about the extent of family violence within their relationship. To a large degree their dispute centres upon whether there was actual physical violence or not; the mother says there was and the father denies that.
In my view, it is not necessary for me to determine which version is correct, because both parties accept that their relationship was marred by a lot of shouting at each other and that the child was adversely affected by that. I am satisfied that both parties now want her to be shielded from that in the future.
It would appear from the Mental Health Assessment of the father,[49] that if there was actual physical violence by him, it was situational and related to the volatile relationship between the parents. That relationship is now over and it is unlikely that either party would like it to resume. In this regard, it is worth quoting from paragraph 33 of the father’s Mental Health Assessment:
[The father] indicated that [the child] has witnessed conflict between himself and [the mother] and acknowledged that this has distressed her. He reported that in the past when [the mother] has become angry that [the child] has said “daddy stop it” and has put her hand over his mouth. [The father] acknowledged that this is not appropriate (and) is the reason that he believes that it is positive that the relationship has ended.
[49] Annexure “C2” to his first affidavit
In paragraph 35 of that Mental Health Assessment the author said this:
[The father] reported that despite his current separation from and concerns for [the child] he is “relieved” that his relationship with [the mother] is over as there were “lots of issues”. He expressed the belief that during the relationship he “wasn’t seeing it clearly” but that the relationship “was not good”. [The father] stated that he believes that it is in his and [the child]’s best interests for the relationship to have ended.
Counsel for the father erroneously stated to the Court Expert that both parties had said in evidence that, if the visit by DoHS and the police had not occurred, “they most likely would still be married and not separated”.[50] However, I am of the view that reconciliation between them is extremely unlikely.
[50] See Transcript: Day 2 at page 126
I am satisfied that the father threatened the mother during one of their many arguments by saying that he would cut her into pieces, but that he said that in response to her saying that she would get her uncle to talk to him. However, I am also satisfied that:
·the mother’s uncle is an intimidating person so her reference to him was intended to cause the father to be fearful for his safety; and
·in retaliation the father intended his threat to cause the mother to be fearful.
It is therefore clear to me that both parties have engaged in “family violence” as defined in subsection 4AB(1) of the Act. It provides that “family violence” includes “threatening or other behaviour by a person that … causes the family member to be fearful”. However, those threats were also “situational” and I am of the view that such threats are unlikely to be repeated because the parties are no longer in a relationship.
Relevant additional considerations
I do not propose to consider the relevant “additional considerations” in the order set out in subsection (3) of section 60CC. However, I will consider those that are relevant.
The capacity to provide for the child’s needs
I have no concerns in relation to either party’s capacity to provide for the child’s physical or intellectual needs. However, this consideration also relates to the child’s emotional needs.[51]
[51] Subsection 60CC(3)(f)
When they were together, both parties failed to meet the child’s clear need to be shielded from their conflict. I reiterate that their Mental Health Assessments in August 2012 stated that they both failed to appreciate their own roles in exposing the child to their conflict. The father’s Assessment said that although “he acknowledged that [the child] has been exposed to and likely affected by their conflict, [the father] presents as placing responsibility for this on [the mother] and as lacking in insight regarding his role in the conflict”[52] and the mother said that she was “lacking intuition about her circumstances and her role in exposing [the child] to the conflict with [the father]”.[53]
[52] See paragraph 107 of Annexure “C2” to the father’s first affidavit
[53] See paragraph 62 of Exhibit “H1”
It is encouraging to see that the parents now acknowledge that it was wrong to expose the child to their conflict, and as I surmise above, the likelihood of such conflict in the future is very much reduced by them no longer being in a relationship.
The attitudes of the parents to the child and parental responsibilities
In some respects there is some overlapping between this consideration and the considerations referred to immediately above and below.
It should be clear from things set out above in these Reasons that I have some concerns about each party’s consistent willingness to blame the other for difficulties that occurred, particularly in relation to those involving the child. That must be seen as failures by both to understand their parental responsibilities.
I also consider it to be a failure of parental responsibility if a parent denigrates or is critical of the other parent in the presence of their child. In relation to that, the Court Expert reported:
[The child] reported that her mother doesn’t say nasty things about her father, but sometimes she says she (the child) can’t go there, “because she knows I’m scared to go”. However, she stated that her father does say nasty things about her mother, such as that he is better than her mum, and that it’s not fair that her mummy takes her for lots of nights and that she cares for her.[54]
[54] At paragraph 45 of the Family Report
The father’s response to that was: [55]
I deny that I have ever said this to [the child] and do not expose [the child] to adult issues and the issues/conflict that may have arisen from separation. However I have concerns that the Wife is instructing [the child] on what to say and how to behave.
[55] At paragraph 39(f) of his third affidavit
I do not accept the father’s evidence about that and say that, if he genuinely believes that he does not expose the child “to adult issues and the issues/conflict that may have arisen”, then he still does not appreciate how perceptive children can be and he still lacks insight into his involvement of the child in the parent’s disputes.
I venture to suggest that the father could well have learnt more about those issues if he had attended a Post Separation Parenting Course. Consequently, my concerns about the father were exacerbated by his failure to comply with the order by Judge Hughes of 12 February 2013 which read:
12. The Father attend upon an agreed organisation for the purposes of:
(a) anger management course and
(b) post-separation parenting course
and provide copies of certificates of completion of same to the other side.
When he was asked by his own counsel to explain why he had not done that, the father said:
I - I’ve - in the last - all year I’ve been on a very busy project which has kept me very busy, particularly at the times that required by these anger management courses and separation courses, which is after work in the evening. I have work that is mostly based in (country omitted) and I’ve done a lot of travel to (country omitted) as - I’ve done several trips to (country omitted) as well, which has prevented me from doing these courses as well as the most critical times I’ve - I’ve been on calls to (country omitted) at the times those - those courses are - are being held. I - I intend to comply with that order and unfortunately, I’ve just been unable to till now. [56]
[56] Transcript: Day 1 at page 18
Coming from a parent who is seeking to move quickly to weekly shared care, I found that to be quite unconvincing. His subsequent answers to questions in cross-examination did little to improve the veracity of his “excuse” - his “several trips to (country omitted)” became only two trips, and although he intended to enrol in a course “early next year”, he could not recall the dates of that course.[57]
[57] See Transcript: Day 1 at page 18
On the other hand, the mother had completed a Post Separation Parenting Course on 28 August 2012[58] and she has also complied with Judge Hughes’ order of 12 February 2013 to attend counselling. Indeed, she has attended counselling on a weekly basis. Although the father’s counsel appeared to be critical of the mother for not providing a report about her counselling, I accept that no request was made for such a report.[59] Further, I consider it to be somewhat hypocritical to appear to criticise the mother for not providing a report in relation to her compliance with an order of this Court to attend counselling when the father failed to comply with an order made on the same day for him to attend both an anger management course and a post-separation parenting course.
[58] See Annexure “L-1” to her second affidavit
[59] See Transcript: Day 2 at pages 102 and 103
It is also of some encouragement that the mother appeared more accepting of the Court Expert’s views and recommendations. The mother said this in her second affidavit:
12. I agree with Dr M's recommendations as to [the child]’s living arrangements and the graduated regime. Dr M has reported on the concerns I have previously raised as to [the child]’s behaviours and her requirements.
13. I understand the references made by Dr M to my needing to attend to my anxiety and stress. I am aware that I present with anxiety and note that I was very concerned about the report process as it was an unfamiliar environment and I was aware that Dr M would be making recommendations as to [the child]'s future as a result of her observations that day. I am agreeable to attending upon a psychologist as recommended by Dr M for the purposes of family therapeutic counselling together with personally attending a counsellor in relation to stress/anxiety concerns. I note that I completed a Post Separation Parenting Course in August 2012 through Relationships Australia.
On the other hand, the father’s response to the Court Expert’s views and recommendations was much more negative. I repeat that he said:
I disagree with Dr M’s recommendation that the way forward to resolve this problem for [the child] is to proceed slowly with any increase in time with me. My belief is that we need to “normalise” my relationship with [the child] sooner rather than later and that a week about arrangement would minimise changeovers and shield [the child] from the Wife’s behaviour.
The extent to which the parents have fulfilled their obligations to maintain the child
The mother said this in her first affidavit sworn 29 January 2013:
7. Following separation the Husband stopped my access to a joint credit card. Despite being assessed to pay child support at a limited amount as he has failed to disclose his financial records to the Child Support Agency, I have received no child support since 23 October 2012 and, despite indicating that he would be willing to pay for [the child]’s school fees, uniforms, books and education expenses, together with making a payment to me of some $5,000, the Husband has since resiled on same.
8. [The child] and I are surviving on the Parenting Pension together with monies loaned me by my father and siblings.
In his second affidavit affirmed on 11 February 2013 the father said that he had offered to assist the mother by paying the child’s “school fees, uniform, swimming lesson fees and ballet lesson fees, however the Wife has refused to accept this offer”. However, there was no cross-examination in relation to that aspect of financial support for the child, so I am unable to make findings one way or the other about that.
Although the father conceded in cross-examination that he had terminated the wife’s access to the joint credit card and joint accounts “immediately on separation”,[60] I have no evidence about the actual effect of that action on his part. Consequently, I am unable to form any firm conclusions about whether the father has met his obligations to maintain the child.
[60] Transcript: Day 1 at page 36
The child’s views
The Court Expert said:
[The child] presented as being quite shy with the writer at first, but then she became quite talkative in the end, and she presented as a reasonably happy and well-adjusted child in the circumstances, but at the same time it was clear that she was very much aware of, and exposed to the conflict and her parents different views. [The child] was happy to talk to the writer about her parents.[61]
[61] Paragraph 38 of the Family Report
In relation to what the child wants, the Court Expert said:
[The child] reported that she sees her father one day per week, and she likes seeing him, and she likes staying over at his house one night, and she thinks her mother likes this too. However, she made it clear to the writer that she doesn’t want any more nights at her father’s house, “because I don’t see my mummy much ... yes I see her the other nights ... but I do miss her”. [The child] talked about there being lots of times when she doesn’t want to go to her father’s house, and especially on a Sunday, as she doesn't want her father to take her to school on Monday, and she stated that she is a bit scared about this. After discussion about this, it became apparent that [the child] thinks that only mothers drop their kids off to school, and she has not seen father’s do this, or when questioned she said not many.[62]
[62] At paragraph 41
The Court Expert also reported:
[The child] made it clear that whilst she’d like to spend more time with her father, she would like it to be day time only, and then she would like to go back to her mother’s house at night time.
The father’s counsel suggested to the Court Expert that some of the things that the child was saying were:
…precisely what you would expect a little child to say who is living with her mother who has no insight at all in relation to the impact of her negative feelings about the father upon the child.
The Court Expert’s response was:
Well, again, there’s lots of times where I have children come in and - and you can tell that what they’re saying is exactly what their parents has actually - the words – they’re not child words, they’re not – they’re more adult words; I just didn’t get the sense of that with her. I got the sense that they were her feelings and her thoughts. Obviously she’s being influenced; I’m not saying she hasn’t been influenced by mum and dad, but I still got the sense that - again, personally, from my interview with her I got the sense that they were her thoughts.[63]
[63] See Transcript: Day 2 at page 145
Shortly after that the Court Expert stated that she did not get the impression that the child had been coached by the mother or that the child’s words were not her thoughts.[64]
[64] See Transcript: Day 2 at page 146
The relationships of the child with the parents and other people
The evidence is clear that the child is much loved by both parents and she loves them both in return. That was summarised very well by the Court Expert at paragraph 51 of the Family Report, where she said:
[The child] appears to have formed a positive bond and relationship with both parents; interacting with them in a way that suggests that she sees them both as loving, and caring figures in her life.
The Court Expert went on to say this in the next two paragraphs of the Family Report:
Both [the mother] and [the father] interacted with [the child] in a positive and appropriate manner, and they both engaged her well, and they involved themselves in what she was doing, and they were educative and encouraged her learning and development, and they gave praise and encouragement; and [the child] was responsive to both parents, and she included them in what she was doing, and she appeared comfortable with both of them.
However, it should be noted that [the child] was much more talkative, animated, and comfortable with her mother than the father; and her relationship with the mother also appeared much stronger and more secure too, which is to be expected since the mother is her primary care giver.
The Court Expert’s evidence is the only independent evidence that I have about the child’s relationships with her parents and I accept that evidence.
I have no reason to believe that the child has anything other than normal loving relationships with her extended family on both sides. For the benefit of the parties to this dispute, I consider it worthwhile to repeat what other judges have said about such relationships. In Bright and Bright v Bright and Mackley, the late Treyvaud J said: [65]
Kay J, in a decision to which I was referred, of Stevens and Lee (1991) FLC 92-201, made remarks which are similar to those which others may have made and certainly which I have made on occasions.
His Honour was at pains there to point out, as I do now, that it is very important for children's proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.
[65] Bright and Bright v Bright and Mackley (1995) FLC 92-570 at page 81,658
In Stevens and Lee, Kay J had said:[66]
For my own sociological part, I would say that the more loving, caring people this child can have contact with, the better for the child. The greater exposure the child can have to its biological links with its paternal grandparents, the better for the child, short and long-term.
[66] Stevens and Lee (1991) FLC 92-201 at page 78,385
Clearly, Kay J’s comments apply equally to members of a child’s extended family on both sides.
The extent to which each parent has taken part in decision making about the child, or spending time or communicating with the child
It is clear that the parties are in dispute about how much time the child should spend with her father, and they are unable to agree upon any form of compromise. Indeed, when at the start of Day 2 I gave some preliminary views and suggested that some negotiations should take place, I was made aware so quickly after I adjourned for some negotiations that the matter was still proceeding, that it was very clear that any such compromise in the best interests of the child were not on the agenda on that day.
That is not to say that they will never be able to cooperate with each other in the child’s best interests, but at the very least, it will require each of them to stop blaming the other. I therefore propose to order the joint family counselling that was recommended by the Court Expert.
The likely effect of any change in the child’s circumstances
The Court expert summarised the parties’ very polarised positions in paragraph 54 of the Family Report as follows:
The main issues for this family are that the father is wanting [the child] to reside with them on a week about shared care basis, and … the mother is wanting the current living and contact arrangements to remain the same, and she is totally against a week about shared care arrangement.
Although the father changed his position slightly at the hearing, his proposal as set out in the document tendered by his counsel[67] would still result in a week about shared care arrangement within four months. When I queried that, his counsel appeared to suggest that I could “slow it down a little bit, but by September next year; week about”.[68]
[67] Exhibit “H2”
[68] See Transcript: Day 2 at page 169
The father had also been seeking sole parental responsibility for the child but at the hearing he abandoned that position in favour of equal shared parental responsibility.
The Court expert reported that she totally disagreed with the father’s belief that the child “is ready for week about shared care” because the introduction of more overnight time with the father would be likely to cause the child “some extreme anxiety and distress”.[69] I note that the Court Expert’s opinion about that is informed by her expertise and experience, and I accept her opinion to be correct and reject the father’s belief that the child is ready for week about shared care. Subjecting the child to “extreme anxiety and distress” is clearly not in her best interests.
[69] See paragraphs 63 and 64 of the Family Report.
At paragraph 67 of the Family Report, the Court Expert opined that:
…if the mother was able to hide her own views, opinions, and anxieties; and if she normalised things and encouraged [the child] to see her father, but still made it clear she was there to support her, like a mother might do when a child is starting kinder and you know that kinder is good for them, but they hate being away from you, and you deal with the anxiety as it happens, yet you normalise it as much as possible, and you keep sending the child anyway, and eventually the child not only gets the message that they may go to kinder but they always come back to mum, but they also get the message that mum thinks kinder is okay and normal because she keeps encouraging attendance and discouraging anxiety; then I suspect that [the child]’s anxieties would be significantly less severe.
The Court Expert went on to say this in the Family Report:
68. Again I would say that the way the parents deal with a child’s anxiety, again has a significant impact on how the child also deals with it, and also how long it remains a problem, for many of the reasons explained above; and my concern is that the mother simply does not see how her own actions, inactions, and empathy and understanding of [the child]'s alleged concerns, upset, fears, and anxieties, are in fact encouraging these very anxieties and her reluctance to go, and her (the child’s) belief that she should be allowed to return to her mother if she wants to; and she doesn’t seem to understand that she is in fact colluding, helping to co-construct, exacerbating, and maintaining these anxieties and the reluctance, when she communicates that the father’s behaviour is somehow faulty or bad, and when she empathises with [the child] when she says she doesn’t want to go, or she wants to come home, and when she makes the assumption that [the child] is struggling because she is experiencing bad or angry or difficult behaviour by the father similar to what she experienced; when it is highly likely that the father/daughter relationship is very very different to the adult relationship the mother had with the father.
69. Furthermore, by actively communicating her own negative views about the father, and the fact that she will not force [the child] to go, which message she gives when she tells [the child] that she should tell the father she doesn’t want to go, thereby implying there is a chance she may not have to go, instead of simply making it clear that she is expected to go; she is not only encouraging her to believe this, but she is setting up a situation whereby it is unlikely that [the child] would suddenly stop being anxious and choose to go, and she is more likely to continue not wanting to go, and to continue being anxious, and in fact this anxiety if left unchecked, could even turn into a phobia; with the prospect of staying with the mother just being the easier choice, whereby she naturally feels safe and secure because she is her primary caregiver.
70. However, in saying this, it seems possible, and even likely that [the child]’s reluctance and anxiety around her father may also be related to her exposure to the conflict between the parties, since it seems that she was exposed to a great many of their arguments and fights whilst they were together, and she is aware that they are still in conflict about many things even now; and if it is also true that the father becomes angry with her when she wants to go home, and if he denigrates the mother at times, and if he shares inappropriate adult issues with her like telling her how unfair it is that the mother gets significantly more time, and if he makes false promises and lacks communication skills, etc, as alleged; then this is also likely to be significantly contributing to her anxiety and reluctance too.
71. Ultimately, it is difficult to know what the real cause of her anxiety is, and whilst the father totally blames the mother, I have no doubt that they are both contributing to it in various ways.
I have quoted those paragraphs of the Family Report in full because it is important that the parties realise that they both need to make some significant changes in the best interests of the child that they both love dearly.
The court expert suggested an interesting change. When she was being cross-examined by the father’s counsel about the need for an order that “neither parent talk to the child about the other parent in a negative way, or denigrate the other parent or discuss the issue of time with the child”, she said:[70]
[70] Transcript: Day 2 at page 133
I’d go so much further and say I’d like them to pretend they like each other as well.
Such an outcome is clearly desirable, but I do not believe that it can be the subject of an order. Notwithstanding that, it is my very firm opinion that if the child could be persuaded that her parents like each other, her anxiety will disappear very quickly (even if it is only a pretence on the part of the parents).
The practical difficulty and expense of the child spending time with and/or communicating with a parent
The parties agree that they live only 20 minutes apart, so this is not a concern.
Any family violence involving the child or family member and any family violence orders
I have referred to this sufficiently above.
Is it preferable to make an order least likely to lead to further proceedings?
I shall refer to this below.
Any other relevant fact or circumstance
The amendments to section 60CC by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 resulted in the removal of a specific direction to consider “the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”. However. I am of the view that it is a factor that should be considered if it is relevant.
It was pleasing to see that, notwithstanding her involvement in the “blame game”, the mother was able to acknowledge that the father is “a good dad in lots of ways”.
On the other hand, the closest that the father got to being complimentary about the mother was during his cross-examination when he said: “… she has got other qualities that are good. She has been a good mum in terms of material care and things like that for [the child]. I can see that.” However, he went on immediately to say: “So it’s not all bad but there’s a fundamental, unfortunately, a fundamental there that isn’t good and makes our relationship untenable.”[71]
[71] Transcript: Day 1 at page 40
Unfortunately, the child knows very well that her parent’s do not like each other. The Court Expert said this twice in answers to questions from the mother’s counsel[72] and in response to a question by me, she said:
They think that they’re the better parent at this stage than the other person. They think the other person is doing wrong by them, wrong by the child; they both think that so until that changes I don’t think they can cooperatively parent at all …[73]
[72] Transcript: Day 2 at page 151
[73] Transcript: Day 2 at page 152
In my view, the parties should immediately embrace the Court Expert’s suggestion and pretend that they like each other.
Conclusions
Should the parties equally share parental responsibility?
As mentioned above, pursuant to Section 61DA of the act, the court must apply a presumption that it is in the best interests of the for the parents to have “equal shared parental responsibility”, but that presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence.
I have determined above that both parties have engaged in “family violence” as defined in subsection 4AB(1) of the Act, so the presumption does not automatically apply, notwithstanding that I have also concluded that the family violence was “situational” and is unlikely to recur.
However, in Runcorne & Raine [74] Murphy J pointed out the seriousness of depriving a parent of the ability to share parental responsibility. Beginning at paragraph 34, he said:
34. A finding that the parties are utterly incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility, and a finding that this incapacity is highly likely to spill over into regular future conflict for the children, appears to me to lead to a conclusion that the sharing of parental responsibility in the manner envisaged by s 65DAC – and, in particular, sharing parental responsibility equally - is contra-indicated in the best interests of the children.
35. Equally, though, an order for “sole parental responsibility” in favour of a party means (as, it seems to me, follows from the statutory definitions) that the other party has no “duties, powers, responsibilities and authority” in respect of “major long term issues” for the children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAC and s 65DAE).
36. The exercise of discretion in favour of excluding completely one parent from consultation and decision making in respect of major long-term issues for their children - particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
37. There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is seen to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U [2002] HCA 36; (2002) 211 CLR 238).
[74] Runcorne & Raine [2008] FamCA 837
The parties are seeking orders that they share parental responsibility for the child, and I can see no convincing reason for that not to apply.
Section 65DAA considerations
Also as mentioned above, if I make an order for the parents to have equal shared parental responsibility for the child, I must consider whether spending equal time with each of the parents would be in the best interests of the child and reasonably practicable, and if so, consider making such an order.[75]
[75] Subsection 65DAA(1)
It should be reasonably clear from what I have said above that I do not consider that it is in this child’s best interests to be put in a situation whereby she would be subjected to “extreme anxiety and distress”. Further, I do not accept that a move to a week about arrangement “sooner rather than later” would “normalise” her relationship with her father as suggested in paragraph 38 of the father’s third affidavit. Indeed, I am of the view that increasing her time with him too quickly could result in just the opposite from what he wants to achieve, particularly if it increases the child’s anxiety and distress.
I am also of the view that an increase in the child’s anxiety and distress would make it very likely that one or other of the parents would institute further proceedings for a variation of orders or because of a contravention. Clearly, that is not desirable and I consider it preferable to make orders that are not likely to lead to further proceedings.
I will therefore make orders that are very similar to those sought by the mother. They are set out at the start of these Reasons and are self-explanatory
Procedure
I heard this matter in Melbourne but I will be delivering this decision in Launceston. My Associate will make arrangements for the parties’ lawyers to attend by telephone if they wish to do so, and she will provide copies of these Reasons and the Orders to the parties’ lawyers by electronic means shortly thereafter.
I note that an order was made on 15 November 2013 for the parties to attend a conciliation conference on 17 March 2014 in relation to financial matters. I have therefore also included an order for a mention of this matter before me in Launceston at 9:30 a.m. on 27 March 2014. The parties’ lawyers have leave to appear at that time by telephone, provided that they advise my Associate of the telephone numbers upon which they can be contacted.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Judge Roberts
Date: 14 February 2014
Key Legal Topics
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Family Law
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Jurisdiction
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