Cassidy and Cassidy
[2008] FMCAfam 1137
•17 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CASSIDY & CASSIDY | [2008] FMCAfam 1137 |
| FAMILY LAW – Parenting orders – relevant principles – presumption of equal shared parental responsibility not applied – evaluation of s.60CC criteria. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAC & 65DAE |
| Briginshaw v Briginshaw (1938) 60 CLR 356 N & S & The Separate Representative (1996) FLC 92-655 Mills & Watson [2008] FMCAfam 2 Taylor & Barker (2007) FamCA 1246 |
| Applicant: | MR CASSIDY |
| Respondent: | MS CASSIDY |
| File Number: | SYC 5446 of 2007 |
| Judgment of: | Lindsay FM |
| Hearing dates: | 12 & 13 June and 16 July 2008 |
| Date of Last Submission: | 16 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ladopoulos |
| Solicitors for the Applicant: | Bowral Legal |
| Counsel for the Respondent: | Mr Henness |
| Solicitors for the Respondent: | R J Russell Solicitors |
| Counsel for the Independent Children’s Lawyer: | Ms Falloon |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of NSW |
ORDERS
All previous parenting orders be discharged.
The mother do have sole parental responsibility for major long-term issues in relation to the three children [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2005.
The said children do live with the mother.
The mother do all such things as may be reasonably required to facilitate the said children spending the following time with the father:
(a)during school term time:
(i)on alternate weekends from the conclusion of school on Friday until the commencement of school on Monday;
(ii)on Wednesday evenings from the conclusion of school to 7:30pm;
(b)during Christmas school holiday periods:
(i)for the first half of each Christmas school holiday period commencing in 2008 and each alternate year thereafter;
(ii)for the second half of each Christmas school holiday period commencing in 2009 and each alternate year thereafter; and
(iii)for the purposes of paragraphs 4(b)(i) and (ii) of this Order, Christmas school holiday periods will:
(A)commence at 10am on the first day following the last day of the school year;
(B)end at 10am on the day immediately before the first day of the following school year; and
(C)the first half of the Christmas school holiday period will end at 10am on the day following the mid-point of the Christmas school holiday period;
(iv)SAVE AND EXCEPT that the said children will spend time with the father from 3pm on Christmas Eve until 3pm on Christmas Day in 2008 and each alternate year thereafter NOTING that the said children will spend time with the mother from 3pm on Christmas Eve until 3pm on Christmas Day in 2009 and each alternate year thereafter;
(c)on Father’s day from 9am until 5pm NOTING that the said children will spend time with the mother on Mother’s Day from 9am until 5pm; and
(d)such other times as the parties may agree.
In respect of any child that is not of school age delivery and collection of that child save be effected at the same time and at the same venue as the delivery and collection that is affected in relation to the child or children that is or are of school age.
The parties are restrained and an injunction is granted restraining each of them from permitting any relative or support person to be within one hundred (100) metres of the said children during handover.
The mother and the father do all such things as may be reasonably required to facilitate the said children communicating with the other parent by telephone as follows:
(a)between 8am and 8:30am on each of the said children’s birthdays, with the parent who does not have the said children in his or her care at that time to initiate the call; and
(b)at any other reasonable time that any of the said children may request, with the said child or children to initiate the call.
The parties do in the first instance communicate concerning arrangements for the said children by using e-mails, text messages or a communication book.
Each party do forthwith arrange with Relationships Australia to engage in such mediation sessions and/or counselling sessions as that organisation determines would be appropriate to assist them in their future communication about the said children and each party do, themselves or through their solicitors, advise the Independent Children’s Lawyer in writing as to:
(a)those mediation and/or counselling sessions which have been recommended by Relationships Australia;
(b)the date of completion of any intake procedures required prior to those sessions;
(c)the dates of all sessions attended; and
(d)the dates of completion of each process recommended by Relationships Australia.
The parties do provide a sealed copy of this Order to any mediator, counsellor or therapist the parties may consult and to any professionals treating the said children from time to time.
The parties are restrained and an injunction is granted restraining each of them from permitting any other person to be present at any premises while the parties are attending such premises for the purposes of mediation, counselling or therapy for the parties or for the said children or any of them.
The parties do all such things as may be reasonably necessary to ensure that:
(a)the other party knows of any medical or dental or therapeutic appointments for the said children;
(b)the other party receives any reports or recommendations of professionals treating the said children; and
(c)all necessary consents for any medical or dental procedures or therapeutic interventions are sought and given in a timely manner,
NOTING that “therapeutic” appointments or intervention includes but is not limited to speech therapy.
The parties are restrained and an injunction is granted restraining each of them from:
(a)discussing these proceedings or this Order with or in the presence of the said children or any of them or from permitting any other person so to do; and
(b)discussing the personal relationships of the other party with or in the presence of the said children or any of them or from permitting any other person so to do.
The Independent Children’s Lawyer be at liberty to provide copies of this Order to any school, pre-school, day-care or after-school care facility the said children currently attend.
The parties do comply with a request from the Independent Children’s Lawyer that the child [X] do attend at the office of the Independent Children’s Lawyer for the purposes of the Independent Children’s Lawyer explaining to [X] the effect of this Order on the time the said children will spend with each party.
The order for the appointment of the Independent Children’s Lawyer be discharged on the date three (3) calendar months following the date of this Order.
All applications do otherwise stand dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Cassidy & Cassidy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5446 of 2007
| MR CASSIDY |
Applicant
And
| MS CASSIDY |
Respondent
REASONS FOR JUDGMENT
These are competing applications for parenting orders in respect of the three children of the marriage, namely [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2005. The parties married in 1999 and separated on 29 March 2007. For a short time the father remained in occupation of the former matrimonial home but he moved out and the mother remained living there with the three children. There was an incident on 24 July 2007 which involved the father removing all three children from the home of the mother. The evidence was that the children remained with him living at this parents’ home for a period of approximately ten days thereafter wherein there was no contact with their mother whatsoever.
On 7 August 2007 the Judicial Registrar in the Family Court made an order which saw the children live with their father from the close of school on Friday (although only one child is of school age) until the commencement of school on Monday and with the mother at all other times. An Independent Children’s Lawyer was appointed.
The matter was before another Judicial Registrar on 5 September 2007. The parties to consented to orders until further order being made in essentially the same terms as they had been made on 7 August. The matter was transferred to the Federal Magistrates Court.
The trial proceeded before me on 12 and 13 June 2008 and 16 July 2008 in the Sydney Registry of this Court. A family consultant, Ms J, prepared a report dated 6 June 2008 arising from her interviews of the parties and of the children and of observed interaction of the children with the parties. With the consent of all parties she gave her oral evidence first.
The father was cross-examined on his affidavit. His father was cross-examined on his affidavit. His mother gave short oral evidence and was cross-examined. The mother was cross-examined on her four affidavits. An affidavit of her mother was admitted without the need for that witness to be cross-examined.
Given the level of disputation between the parties, both in this Court and in the State Magistrates Court, and given the quantity of affidavit material filed by the mother it was surprising that the father had filed only the one affidavit. The family consultant’s report, however, was detailed and records a significant quantity of information provided by him to the report writer.
The orders sought by the parties under-went significant modification during the course of the proceedings. A singular aspect of the matter was the recommendation of the report writer for an arrangement whereby the children spent seven days per fortnight (not consecutive) with each of the parties. I say ‘singular’ because there was nothing in the history of the matter to the point of the report which indicated that such an arrangement was sought by either party or was conceivably workable. She made that recommendation because she thought the parties had reached an agreement to that effect. I will hereunder return to the impact this miscarried intention had upon the value of the evidence of the report writer.
At the end of the trial the mother was seeking an order which saw the children live with the father from the conclusion of school on the Friday to the commencement of school on the Monday in alternate weeks and on each Wednesday evening. Even that final position was modified in the closing address of her counsel to the point at which what was proposed on the Wednesday was several hours rather than an overnight period.
The father’s position at the end of the trial was that there would be a two-weekly cycle. One week would be from Wednesday after school to the commencement of school on Monday and in the second week from Wednesday evening until Friday afternoon. I will provide further detail hereunder in relation to my understanding of this proposal. It was complicated in the sense that only one child was of school age and the younger children were attending either kindergarten or day-care. Perhaps the most unambiguous way of expressing the father’s proposal with respect to the second week would be to say that it involved the mother’s time with the children resuming at the close of school/kindergarten/day-care on a Friday.
The father’s proposal, therefore, was that the children live with him for seven nights per fortnight.
The father sought an order for equal shared parental responsibility. The mother opposed such an order. I should note that an order until further order for equal shared parental responsibility was one of the orders made by consent on 5 September 2007.
These are proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The child’s best interests remain the paramount consideration in the making of any parenting orders relating to her (see s.60CA). The objects of Part VII of the Act are set out in s.60B(1):
(1) The Objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are set out in s.60B(2):
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separate, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Considerable legislative guidance is provided in ascertaining the best interests of a child. The primary considerations are set out in s.60CC(2):
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are set out in s.60CC(3):
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
(m)any other fact or circumstance that the court thinks is relevant.
Section 60CC(4) makes more specific provision in relation to s.60CC(3)(c) and (3)(i):
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
Section 61DA(1) of the Act provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply in the circumstances set out by s.61DA(2), (3) and (4):
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person's family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) 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.
If the presumption applies then s.65DAA of the Act is engaged.
Federal Magistrate Walters in Mills & Watson [2008] FMCAfam 2 at paras.[72] to [76] summarises the effect of these various provisions:
72. Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable and in the child's best interests. If it is, then the court must consider whether or not it should make an order to that effect. If the court comes to the conclusion that an order for equal time should not be made, then it must then go on to consider whether the child spending “substantial and significant time” with each parent would be both reasonably practicable and in the best interests of the child. If it is, then the court must consider whether or not it should make an order to that effect.
73.The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Part VII itself. In Taylor & Barker (2007) FamCA 1246, however, the Full Court said:
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that section 60CC(1) provides that in determining what is in the child's best interests, the court must consider the matters set out in subsection (2) (“primary considerations”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests. (Emphasis added)
74.The Full Court in Taylor & Barker added that failure to follow the above approach (which it clearly regards as “the logical approach”) does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to “the matters which the legislation requires must be considered”.
75.Having summarised the effect of the amendments to Part VII in paragraph 65 of its judgment in Goode, the Full Court then described the “legislative pathway” that “must be followed” in interim proceedings in paragraph 82. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought.
76.The relevant steps (as modified for a final hearing) are as follows:
a)Identify the parties’ competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant section 60CC factors and (if possible) make findings about them.
e)Decide whether the presumption in section 61DA (that equal shared parental responsibility is in a child's best interests) applies.
f)If the section 61DA presumption applies, then consider whether it has been rebutted (because its application would not be in the child's best interests).
g)If the section 61DA presumption applies, and has not been rebutted, then consider making an order that the child spend equal time with the parents - unless equal time would be either:
i) contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC; or
ii) impracticable.
h)If equal time is not in the child's best interests, or is impracticable, then consider making an order that the child spend substantial and significant time with the other parent - unless (in turn) substantial and significant time would also be either:
i) contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC; or
ii) impracticable.
i)Bear in mind, however, that it is only necessary to consider whether it would be “reasonably practicable” for a child to spend equal time with each parent (or substantial and significant time, as the case may be) if a conclusion has already been reached to the effect that it would be in the child’s best interests to spend equal time with each parent (or substantial and significant time, as the case may be).
j)If the section 61DA presumption has been rebutted or does not otherwise apply, or if it does apply but “neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child's best interests”, then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are “at large and to be determined in accordance with the child's best interests” (or, in other words, as a result of consideration of the objects and principles in section 60B and the factors set out in section 60CC).
k)The court is not relieved from having to consider equal time, or substantial and significant time, simply because neither party has sought orders to that effect - although the court would only make orders of this nature if it were to conclude that it would be in the best interests of the child to do so, and after affording procedural fairness to the parties (by informing them that equal time, or substantial and significant time, is being considered, and by giving them an adequate opportunity to lead evidence or make submissions in relation to the subject, including the issue of impracticability).
l)Throughout the entire process, the court must bear in mind that the child's best interests “remain the overriding consideration”, and that the child's best interests are to be “ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC”. (Footnotes omitted)
Ms J’s report noted that at the time of her assessment (May 2008) the competing applications of the parties were for orders that they each live in the former matrimonial home with the children and that the other parent spent time with them on alternate weekends.
That was their position as the assessment process went underway. I have noted above what she claimed was the agreement the parties had reached by the conclusion of that process.
Essentially she said that the parties had agreed that the children would spend two days during the week with each parent (i.e. Monday and Tuesday with the mother and Wednesday and Thursday with the father) and would alternate the three day weekends beginning on a Friday with each parent.
This proposal was, it was said, particularly pleasing for [X] who was concerned about not having time with her mother on weekends pursuant to the interim orders. [X] explicitly endorsed the proposal, according to the report-writer, and both of the parents were well-aware of [X]’s views in that regard.
By the end of the evidence in the trial it was apparent to me that Ms J was, in a well-meaning way, indulging in wishful thinking. The agreement between the parties that she had noted in her assessment was more apparent than real. This should have been obvious to her given the amount of information in her report relating to the appalling state of communication between the parties and the antipathy between the two households. As far back as 1 July 2006, i.e. eight months prior to separation, the mother had sought an apprehended violence order against the father. The circumstances that gave rise to her application are identified at paragraphs 13 to 23 of her Affidavit dated 3 August 2007. She was unsuccessful in having that order confirmed by the Local Court.
The mother did obtain a restraining order, however, in respect of the incident that occurred at or about the time of separation. That incident is described at paragraphs 31 to 24 of that same Affidavit. That involved the father attending at her home and removing the three children from her and involved an allegation that the paternal grandfather “nudged” her with his motor vehicle and ran over her foot. Criminal proceedings ensued against the paternal grandfather. My understanding is that he was convicted but at the time he gave his evidence before me he had instituted an appeal against that conviction.
Proceedings relating to a breach of the restraining order had been instituted against the father in respect of a further incident which the mother says occurred on 23 July 2007, when he broke down the door on her bedroom whilst she was in the bedroom with the child [X]. That incident is described at paragraphs 37 to 40 of the mother’s Affidavit of 3 August 2007.
I will deal with these incidents in more detail hereunder.
The report-writer noted that the paternal grandparents claim to have had little or no contact with the children for many years up until the point at which the children came to live with them for ten days on 28 July 2008.
The report-writer noted at page 5 of her report that:
Mr Cassidy did not seem to hold much hope for any long-term improvement of communication between himself and Ms Cassidy with regards to their future relationship together, stating that
Ms Cassidy’s instability is largely the cause of his own inability to attempt any future reconciliation of the marriage.
The report-writer noted that the father was working full-time as a [omitted] at the time of the preparation of the report. The mother was working two days per week on a casual basis in the same profession.
Both parties had filed Notices of Abuse in the Family Court at the time of the institution of proceedings alleging that the other was responsible for child abuse.
The father’s Notice referred to incidents that were described in his Affidavit of 2 August 2007, such as the mother hitting the children with a hair-brush and with a wooden spoon and deliberating exposing them to inclement weather whilst travelling in a motor vehicle and prolonged verbal abuse of the father. The mother’s Notice referred to the three incidents which I have described above.
It was apparent from Ms J’s interviews with the father that he was suspicious of and hostile to the mother. He had had a stroke in 2006 which on the basis of his Affidavit material and the information provided to the report-writer (and confirmed with his evidence in the witness box) he attributed (with varying degrees of responsibility) to the behaviour of the mother. She alleged that for a period of time leading up to the separation he had consistently claimed that she was poisoning him. I accepted the mother’s evidence in that regard.
The report-writer noted at page 7 of her report:
The … appeal against the AVO proceedings no doubt contributes to his adversarial approach and makes it difficult for him to remain on collaborative terms with the mother even though he appears as if he would prefer to remain on collaborative terms for the sake of the children.
The father claimed to the report-writer that the child [X] had told him that she had walked in on the mother and her boyfriend having sexual intercourse in a bedroom.
Ms J reported the mother as being prepared to fall in with the seven day per fortnight arrangement referred to above but she noted at page 8 that:
It would also appear, for as well-intended as Ms Cassidy may be, she found it emotionally difficult to consider any long-term outcomes of her current situation such as an ultimate divorce, preferring instead to take one step at a time right now. It seemed that she was emotionally too fragile to consider anything other than the welfare of the children as demonstrated by her being very teary at times throughout the interview in discussion on any topic other than the children ….
All of the children were warm and responsive to their parents in the observed interactions. They had no trouble separating from their mother and showing a warmth of affection with their father. [X] was described as a child who knew her own mind and who enthusiastically endorsed the arrangement (that was the seven day per fortnight arrangement) which was spelt out to her by her parents in presence of the report-writer.
[Y] was described as a very anxious child. It was noted that he will be attending full-time school in 2009. He spent at least one day per week with various medical appointments for allergies and speech therapy.
[Z], whilst only three years old, was described as a child who had no difficulty holding her own with the other children.
Tellingly, Ms J noted at page 11 of her report:
Of equal important is the fact that the parents must recognize (sic) the impact that on-going parental conflict has on the future emotional well-being of the children and act upon that knowledge. Whilst both parents are supportive of joint parental responsibility and have requested share parental responsibility on a 50/50 basis, they currently do not have sufficient communication mechanisms necessary to effectively operate their joint parental responsibility, without assistance.
She recommended both counselling and mediation for the parents to help them deal with these issues.
The cross-examination of Ms J only confirmed that her recommendation was grounded upon the parents being able to effectively communicate in relation to the children. She confirmed that the recommendations she made been proposed by the father and that the mother consent to it was somewhat reluctant. She said, “It may work but I don’t know”. The mother was willing to consider it is, I think, a fair summary of her evidence. But good communication between the parties was pivotal to the success of the arrangements proposed. As she said in her evidence
… if there is no communication, no system will work.
A curious aspect of her evidence was the fact that she described her seven-days-per-fortnight proposal as the children ‘living’ with the mother but the father ‘spending time’ with them. The father’s counsel properly had her make the concession that there was no reason why in those circumstances the order should not be expressed in both cases as a ‘live-with’ order.
Another curious aspect was the fact that she persisted with her recommendations notwithstanding her knowledge, which emerged in the cross-examination of her by the counsel for the Independent Children’s Lawyer, that the father had withheld the communication book that the parties had been using several months prior to the preparation of her report. That remained the position to the point at which the trial started.
The impression I formed of Ms J was that she was earnestly attempting to structure an arrangement which would quarantine the children from the effects of the disputes between their parents and from the behaviour of their parents but that there were too many contradictions and tensions within the proposal for her recommendation to be capable of acceptance. She provided helpful insights in relation to attitudes of both parents as a result of that process, however, and also a fuller understanding of the personalities of the children.
The father was a very poor witness. He was defensive to the point of being pedantic at many times. On certain issues I simply did not believe him at all. He impressed as someone with an overwhelming sense of grievance, especially as it related to the proceedings in the Local Court.
To the extent that his stroke was caused by migraines and it was the mother’s behaviour towards him that caused his migraines, he held the mother responsible for his having suffered stroke in 2006. He considered himself to be at risk of having a further stroke on account of the mother’s behaviour. Whilst he denied the allegation I find that he did hold a view following his stroke and up to the point of separation that the mother was trying to kill him. I accepted the mother’s evidence in that regard. I did not accept his denials. He acknowledged having retained the communication book from February until the last phase of the trial before me.
He had very little to say that was positive in relation to the mother’s parenting capacities. As at the date of trial he was subject to the apprehended violence order, which would expire in December 2008. His Affidavit made reference to the events of 28 July 2007 (see paragraphs 46 to 49). The account he gives by way of explanation for going into the home and breaking the lock on the bedroom door where the mother and [X] were cowering, is wholly unconvincing. He was even less convincing when being cross-examined about this matter. I find that he had no proper reason to behave in this threatening and intimidatory manner, particularly in the presence of one of the children.
He simply did not have an explanation as to why he had retained the communication book when he knew that it was being used for the benefit of the children. When we returned for the last day of the trial in July 2008 his attitude to that had changed and I was told that he had re-introduced the exchange of the communication book. I infer that he did so upon the basis of legal advice given to him. He refused consistently to provide the mother with details as to where he was spending his time with the children on his weekends. He refused to provide that information in the communication book.
He said that he was scared of the mother. He was cross-examined at some length about the practical implications of his wanting to spend Wednesday night to Friday morning with the children. There was some ambiguity about it but I did not understand him to be suggesting that in the week he spends the shorter period of time with the children he would be attending at [X]’s school to pick her up and take her to [activity omitted], which she has on a Friday. That would fall to the mother on that short week but it was clear on his proposal that he would require the assistance of after-school care on Wednesdays and Thursdays. With respect to [Y] that meant little change because the child was spending Wednesdays and Fridays at pre-school at the present time in any event. It would be an additional day, the Thursday, that would be involved. He anticipated being able to collect him at approximately 5pm.
The same would apply in respect of [Z], who will not be commencing school until the commencement of the 2011 school year. She would have the additional time in day-care on Thursdays on his proposal.
Even though the mother was available to care for the younger children personally on the Thursday he preferred that they would enter day-care on that day instead. He was quite explicit in his evidence about that. It is hardly surprising that he that view given the very low opinion he has as to the mother’s parental capacities, which opinion permeated all aspects of his evidence.
The counsel for the Independent Children’s Lawyer obtained further information from him in that regard during her cross-examination of him. He explicitly indicated that his preference was for the children to be in day-care rather than with their mother on the Thursday and when asked why he said that it was on account of the mother’s “neglect”. He referred to an occasion when [Z]’s front teeth were broken in 2007. The mother had dealt with that incident in some detail in her own Affidavit. There is nothing to suggest that it was other than an accident which occurred whilst her attention was diverted to the child [Y]’s toileting for a short time. I was wholly unconvinced by the father’s attempts to suggest that the mother and [Z] had given a series of contradictory accounts in relation to the incident. They had not. He gave evidence describing in some detail how the mother had left five children alone whilst she was “going off and having sex in another room”. He was referring to her children and her boyfriend’s children. He spoke of this incident as if it were an established fact, whereas in fact he was very vague as to the detail that [X] had provided him in relation to this incident.
The most revealing part of Ms Falloon’s cross-examination, however, was that in relation to why he had stopped the use of the communication book. He said that he had been advised by the police that if he wrote things down to communicate with the mother in the communication book that such communications could ground a complaint by her that he had breached the apprehended violence order. It will be recalled that at the time he gave his evidence a trial in relation to an alleged breach of the apprehended violence order was pending. The apprehended violence order that is currently in operation was tendered in evidence before me as Exhibit 1. It in no way prevents any such communication in relation to the children. It does not even stop verbal communication between the parties with respect to the children. It was utter nonsense for the father to suggest that, even if the police had such a remark (which I do not accept) that he would have given it credence. He knows perfectly well he is entitled to communicate with the mother about the children and especially that the appropriate medium for that is the communication book. He chooses not to because of his own bitterness and resentment about the mother. He said that the police said words to the effect of “family law court orders mean nothing to us”. He tried to persist with his defence of this ridiculous attitude long after the time when it became apparent what his motivation was for not using the communication book.
It was startling evidence.
His proposal for minimising the children’s experience of conflict between he and their mother was to eliminate any opportunity for face-to-face interaction between them. There was evidence of some email communication during the course of and immediately prior to the commencement of the trial but the evidence was that he had not communicate verbally to the mother for many months prior to the commencement of the trial.
He maintained that the children were not safe in the mother’s care at times.
The mother had filed an Affidavit dated 6 June 2008 in which she had referred to the events surrounding an exchange of the children at a suburban shopping centre on 12 March 2008. It is referred to in paragraphs 11 to 14 of that Affidavit.
The shopping centre is where the handovers have been taking place during school holiday times.
The father said that he had chosen the particular venue at the shopping centre for his own protection as it had “at least three security cameras on that spot”.
The mother said on this occasion in March 2008 that the father attended in company with his mother, as he invariably did during these school holiday handovers. She said that his mother was holding his hand and refused to allow the mother to come close to her. She pulled the father behind her as the mother approached him. The mother had medicine for [Z] and attempted to speak to the father and offered the medicine. She said that the father’s mother said that the father was not allowed to take anything from her as it breached Court orders. The paternal grandmother then telephoned the police.
It was agreed in the evidence before me that this occasion was the last occasion the father has actually spoken to the mother.
The mother said that the father continued to hold his mother’s hand and that he queried whether the medication had to be taken in any event.
In her oral evidence the mother indicated that a friend who had accompanied her to the handover brought this sorry state of affairs to an end by simply taking the medication and handing it directly to the father as he was leaving.
Having heard the mother’s evidence on this topic I accepted it as accurate in all relevant respects.
The father’s oral evidence in relation to this incident was entirely unsatisfactory. The father claimed that the mother would not hand the medicine over. He said that he asked for it. He said that the mother would not let [X] come to him. He said that his mother had no conversation with the mother on that occasion. He denied that his mother had said the words alleged by the mother to have been said to her. He acknowledged that his mother had telephoned the police. He did not ask her to telephone the police. He cannot remember her saying she was going to ring the police. He thought his mother was phoning the police because of the accusations that the mother had made in respect of previous handover incidents.
His mother has attended all handovers since February of this year. His mother was called to give evidence and it included evidence as to this topic. Her evidence was significantly at variance to that of her son. For example, the paternal grandmother agreed with the mother that the mother had offered the medicine to the father. She went further. She said that the mother wanted the father to take the medicine from her hand. The father had said that the mother refused to hand the medicine over. His evidence could not be more different than that of his own mother in that regard. The paternal grandmother had a problem with that happening because of what she alleged was the mother’s previous behaviour in making unsubstantiated allegations of breaches of the apprehended violence order. It was clear from the paternal grandmother’s evidence that she intervened and refused to allow the mother to hand the medicine to the father.
She indicated an intention to be present at all future handover points if her son required her to be. She said that the father asked the child [X] to obtain the medicine and bring it over; the father did not say that.
The paternal grandmother said that she told the father she was going to ring the police. Again, that was directly contradictory to his evidence. She did in fact telephone the police but before the telephone call had concluded the mother’s neighbour had intervened and handed the medicine over.
The accounts given by the mother and by the paternal grandmother of the incident are not significantly or materially different. They were both telling me the truth from their own perspective of the incident. On the other hand, the father told me a serious of lies about the incident.
So consumed is the father by his bitterness towards the mother that he would not accept from her the proffer of medicine for a child. With the encouragement, if not incitement, of his mother he refused to allow the mother to hand the medicine to him. It is a startling demonstration of the extent to which the father is prepared to indulge his bitterness, even if it complicates what should be a straight-forward transaction involving the exchange of medicine for one of the children.
One point of difference between the mother and grandmother with respect to this incident is that his mother did not acknowledge that he was holding her hand or that he was for a large part of this incident behind her but I accept the mother’s description of this having occurred. Another alarming dimension of the matter is the extent to which the father would allow his mother to interfere in such an unhelpful way in a handover of this kind. It bodes very ill for the future conduct of the father.
The counsel for the Independent Children’s Lawyer cross-examined the father at length about the torturous arrangements with respect to the dental work that was required for [Z]. The matter is dealt with at length in the Affidavit of mother dated 8 November 2007. I do not propose to set out the history of this dispute in detail. Essentially it involved the mother attempting to have the child dealt with on the basis of a private consultation, whilst also pursuing remedial treatment for the child at a public health facility, the [omitted] Hospital. Her Affidavit indicates the extent to which she sought to engage the father in this process and the extent of the father’s non-co-operation and obfuscation with respect to the handling of this issue. When the father was cross-examined on 13 June 2007 he acknowledged the urgent need for the child to have her teeth fixed but that it had still not been done to that time. I am not able to make specific findings as why the father was so difficult in co-operating with the mother about the arrangements. She suggests that it may have something to do with his unwillingness to contribute to the costs of the procedure being done privately but I am unable to make a finding in that regard. I think the matter is better seen as simply another demonstration of his determination to impede any proper process of communication between the parties about matters relating to the welfare of the children.
When we returned for further evidence in July 2008 and, I infer again very much on account of having received legal advice, there was no impediment to the procedure being carried out. It had been done.
He was fearful of attending the counselling or mediation that had been proposed by Ms J in her report with the mother unless another person was present. His intentions in this regard were not entirely clear but he was determined to make a point to the Court that he was in fear of his physical safety if he did not have a witness to scrutinise the mother’s behaviour during the course of any interaction with her. Having heard all of the evidence, I am strongly of the view that his fears in this regard are grossly exaggerated, if not wholly invented. I do not accept his evidence as to the history of having experienced violence at the hands of the mother. I accept the evidence of the mother that in the period following his suffering a stroke he became highly antagonistic towards her.
The father gave evidence that his sister or his parents would be available to assist him in the collection of the children from school, pre-school or after-school care if the need should arise. It was clear from his evidence that he had not been involved in taking the child [Y] to his speech therapy.
I should pause here to give some flavour of the nature of the evidence of the father. This is the relevant series of questions in relation to this topic from Ms Falloon:
Question: Is [Y] still participating in speech therapy?
Answer: I believe he goes to speech therapy, yes.
Question:When you say you believe he goes, do you know that he does or not?
Answer:Well, [Ms Cassidy] - [Ms Cassidy] says when some of the appointments are, so I believe he goes. I haven’t been to the speech therapy for awhile, for the reason that those times are within - at the moment are within [Ms Cassidy]’s - [Ms Cassidy’s] care of [Y]. So that’s - all I can say as I believe he does.
I accept that the orders as currently structured would not allow the father to take the child to that therapy but there was no basis for him not making a frank concession that the child obtains such therapy.
He gave some oral evidence about the allegations that the mother raised in respect of the conduct of his father and will deal with that matter separately hereunder.
I have dealt with the father’s mother’s evidence in respect of the March 2008 handover incident. She also had some telling evidence to give in relation to the period of 28 July to 7 August 2007 when, it will be recalled, the children remained in the care of the father whilst he was living with his parents until the matter came before the Family Court. She agreed with her son in his evidence that during those ten days they never once wanted to talk about their mother. She never invited the children to call their mother or placed that thought in their head. She thought it appropriate to leave it to them to ask. She could not see the need for the children to be asked to call their mother. She would not concede that, in the light of her evidence and that of her husband and her son that there had been very little contact between the children and the paternal grandparents since about 2001, the children may have been frightened to ask her to have a chance to speak to their mother.
The paternal grandfather filed an Affidavit and gave oral evidence. He works as a [occupation omitted] and has been [omitted] for forty-two years. He has tertiary degrees in [omitted] and is a member of the [omitted]. He works with [omitted]. He denied the allegation made by the mother that she had been effectively banned from the paternal grandparents’ home since 2001. On the contrary, he said the mother made her own decision not to return to their home after an incident in September 2001.
When the mother sought an apprehended violence order in respect of the ‘car incident’ in June 2007 the mother failed to attend at the Local Court and the interim order that had been obtained against him was revoked. He was convicted of the charge of assault arising from that incident, however, although it was under appeal at the time I heard evidence.
His Affidavit described the kinds of activities the children engaged when they spent with him in July/August 2007 and since the orders were made by the Court.
He said that he never heard the child [X] talk about her mother at all during the period that she lived with them.
His Affidavit described a number of behaviours on the part of the children that concerned him, including physical aggression, abuse of one another, teasing and a destructive attitude towards other people’s property. He criticised their eating habits. He thought [Z] had a fear of women.
He refuted the allegations made by the mother in respect of his indecent behaviour towards her. The mother alleged in her Affidavit of 5 September 2007 (and repeated it in her oral evidence) that the paternal grandfather had followed her through his house on an occasion dressed only in a pair of briefs. This was after she had come out of the toilet and he had exited the bathroom at the same time. In a separate incident in 2000/2001 she said he reached out and grabbed her left breast. This followed a series of events in which he said words to her to the effect of:
I like your breasts. They’re nice and full and round.
The mother went on to say that the paternal grandfather also said words to the effect of:
If I can’t get it from you, I’ll get it from your child.
These are very serious allegations.
The father also refuted these allegations, although his evidence was not helpful on the topic in that he was unable to explain why it was that he could say this event had not occurred whilst at the same time indicating his relating it in his own mind to “an incident”. I do not think that anything turns on that aspect of the father’s evidence because I am unable to find that the paternal grandfather behaved in the way that the mother alleged in any event. I am in a state of uncertainty as to whether these events occurred. The mother when giving the evidence (as I will come to hereunder) presented with an emotional affect that was consistent and to some extent convincing but whether the incident occurred or whether it is a conflation in the mother’s mind of events of a lesser order of magnitude in terms of appropriateness I cannot say.
In answer to questions from Ms Falloon the paternal grandfather was anxious to indicate that his opinion as to the behaviour of the children had radically changed since he swore his Affidavit in September 2007. He said that they were now less aggressive towards one another and that there had been a “dramatic improvement” in their behaviour as compared to July/August 2007. He opined that this may be on account of the fact that they were experiencing less conflict between their parents now that they were separated. Ms Falloon put to him a particular allegation from his Affidavit which is somewhat startling. He says at paragraph 15:
In the case of [Z], I have observed that as she falls on her face there are no tears. Where a normal child would normally cry when hurt, she does not. It concerns me greatly as a professional to see this high tolerance of pain.
He was given an opportunity by Ms Falloon to indicate what conclusion he drew from that observed behaviour but declined to do so.
During the ten days that the children lived with the paternal grandparents in 2007 he did not ask or encourage the children to telephone the mother. His excuse was that it was his son’s responsibility to do that. I was concerned with that evidence. The father and his parents were content that the children were quarantined from all contact with their mother for a period of ten days. This occurred in a situation where they were unfamiliar with staying at the paternal grandparents’ home. It is a troubling lack of insight that is demonstrated in my view in relation to the emotional predicament of the children. The paternal grandfather when questioned about this took the opportunity to allege that [X] told him that her mother had said that they could not come to their home because he was going to shoot her. It turned out that [X] said this at a time unrelated to these period of ten days. It was an allegation that was introduced into his evidence gratuitously, in my view, to deflect proper cross-examination in respect of the issue of his failure to encourage the children to communicate with their mother during that time.
The paternal grandfather’s Affidavit when making its response to the serious allegations of indecent behaviour made by the wife was somewhat confusing in that he answer the allegations by saying: “I say the event was a family gathering”, as if the event itself as described by the mother was being acknowledged. But I accept that he intended by his evidence to indicate that the family gathering was the last occasion on which the mother was present in his home and that it could only have happened on her account at that time.
He has an abiding hostility towards the mother which was barely concealed in the evidence. Of course, if the allegations she makes as to him touching her on the breast and making the remark in relation to the children is untrue, his attitude is understandable. But for a person with his professional experience of children, and troubled children in particular, it is disappointing to have noted that he was content for the children to have absolutely no form of contact with their mother for the period of ten days last year. He ought to have appreciated what a difficult time this was for the children, particularly as he had some idea of the circumstances in which the children had been removed from the care of the mother. He ought to have tried to encourage or facilitate some sort of telephone communication between the mother and the children. But that he was content for none to happen gives us some insight into the extent to which his capacity to respond to the emotional needs of the children, or to encourage his son so to do, is complicated by the personal animosity that exists between him and the mother.
As indicated the mother filed four affidavits: 3 August 2007,
5 September 2007, 8 November 2007 and 5 June 2008. She was cross-examined. She opposed the father’s application that involved the two youngest children spending additional time in pre-school and day-care on a Thursday when she was personally available to care for them on that day. Of course, in relation to [Y] it only involved an additional day for the balance of this year because he will be at school next year but in relation to [Z] it would subsist until the commencement of the 2011 school year. She gave evidence, which was not contradicted, that she did not work Thursdays. She confirmed the poor level of communication between herself and the father. I do not propose to set those matters out in any detail in these Reasons but all of the Affidavits address the extent to which communication had deteriorated between the parties since the middle of 2007 in particular. She agreed that handovers had been a problem between herself and the father and that on the orders that she was promoting there would be additional handovers on the Thursday, which were avoided on the father’s proposal. She did not think that this outweighed the disadvantages for the younger children in having to spend additional time at pre-school or day-care.
During the course of the trial and with the co-operation of all counsel, I was given an insight into the state of negotiations from time to time and it appears that the matter might have resolved on the last day of the hearing upon the basis of the father’s proposals for week one being accepted, i.e. Wednesday to Monday, but that in week two it would be overnight on the Wednesday only. I cannot be certain this was the state of negotiations between the parties but that is the inference I draw from that which counsel, by agreement, allowed to be put before me. Of course, given the history of the parties resiling from agreements (the father resiled from a parenting agreement which was in evidence before me, which the parties entered into pre-trial, and the mother resiled from the “agreement” brokered by Ms J) it may be that nothing would have come of the proposed agreement but if the mother was accepting of such a proposal it does seem remarkable that the father would insist upon the trial proceeding simply to promote an order that the youngest two children spend Thursday in day-care as distinct from in the care of the mother. It is a useful insight, I think, into the attitudes he brings to the evaluation of the best interests of the children.
The mother was cross-examined by the mother’s counsel about how it came about that she did not return to the home of the paternal grandparents (except on an occasion when she sat in the car outside when the father was visiting) after 2001. I think the inference I should draw from all of the evidence is that there was bad feeling between the paternal grandparents and the mother and that it was contributed to by all of them. The family consultant’s report gives an insight into the effect on her of a friend of the mother having married a brother of the father and of her being accepted into the family when she was not. Where responsibility for the break-down in the relationship lies it is difficult to know.
Despite her reservations about the father’s conduct, the mother struck me in cross-examination as being honest in her assessment of the importance of the need for the children to have a relationship with their father that was meaningful. She specifically indicated she thought that there needed to be mid-week contact. She thought there was value in the children having the opportunity to see their father on a regular basis. She acknowledged the warmth of the relationship between the children and the father.
She thought there would be practical difficulties, though, associated with the children performing homework whilst in the care of the father (that only applies to [X] at the present time but will shortly involve [Y]) and she thought there would be on-going difficulties in liaising with the father with respect to any medical appointments for the children, and [Y] in particular. She gave evidence as to the torturous process involved in advising the father of various appointments [Z] had with public and private hospital personnel in 2007 and 2008 relating to the repair of her teeth.
She was cross-examined as to the behaviour of the father and his parents on the occasion of 23 June 2007. I accept her evidence that the father became verbally abusive during the course of his attendance at the home to collect the children and that this led to her calling the police. I accept her evidence as to the events that occurred after the arrival of the father’s parents. As to the events of the July incident I accept her evidence as to her reasons for returning into the home and locking herself and [X] in her bedroom. I accept her evidence that the father behaved in a violent and aggressive way towards her on that occasion. I accept her evidence that he was kicking walls and punching walls whilst present at the home and that both she and [X] were in fear.
She denied that [X] had ever told her father that she had walked in on her and her boyfriend whilst they were engaged in sexual intercourse. She specifically denied that that ever happened. I accept her evidence in that regard.
I am not prepared, however, to accept her evidence that there is a risk associated with the children being left in the care of the paternal grandfather. I am very far from being satisfied that he poses an unacceptable risk of abuse to the children in the sense in which that was promoted by the mother. I have indicated above that I am unable to make a finding as to the truth or falsity of the allegations relating to his allegedly indecent behaviour towards her or in relation to the remark he made about “keeping it from the children”. I am disturbed by the evidence. If it is true the grounds for disturbance are patent but if it is false it is also a concern that the mother would go to such lengths to try to interfere in the relationship between the paternal grandfather and the children. My difficulty is that I had no basis in the evidence for preferring one account over another. It is a matter about which I am uncertain. I am certainly not satisfied that the allegations are made out on the ‘Briginshaw’ standard (see Briginshaw v Briginshaw (1938) 60 CLR 356 at pp.361-362). That is not the end of the matter of course. I must ask myself whether unsupervised contact between the paternal grandfather and the children constitutes an unacceptable risk of abuse to them and in that regard I rely upon the explication of what it means to ask ‘the unacceptable risk question’ contained in the judgment of Fogarty J in N & S & The Separate Representative (1996) FLC 92-655. Despite some level of suspicion as to whether he made the remarks to the mother as alleged, I do not think that unsupervised interaction between the children and the paternal grandfather constitutes an unacceptable risk of abuse.
In reaching this conclusion I do not think it is significant that the mother did not discuss with the report-writer her concerns in relation to the paternal grandfather. I accept the mother’s explanation that the information she gave to the report-writer was in response to the questions that were asked. I am more concerned about the absence of that allegation from the Notice of Abuse she filed in August 2007 but, again, I accept the mother’s allegation that at that time she did not know that the paternal grandparents were exercising such responsibility for the children following the father having taken them from the home.
I do not rely upon the evidence of the mother in relation to an incident said to have occurred in 1998 when she argued with the father in a motor vehicle after they had been visiting the paternal grandparents and she was dragged about two hundred metres from the intersection of [omitted]. This same incident is raised in response to allegations made in the father’s Affidavit in relation to her accidentally breaking the front window of the house whilst trying to get [Y] out of the house. The mother says that [Y] and [X] and she were at home waiting for the father to arrive to take them to a birthday party for a friend of [X] and that he came out of the house and approached the car but instead of entering the car took [Y] out of the car and into the house. The mother followed him to the security door at the front of the house and said that the father said words to the effect of:
I have a knife. Leave. If you call the police I will slit [Y]’s throat.
The problem is that the mother in her Affidavit dated 5 September 2007 is now saying that this incident occurred in 2004.
It is all very confusing.
I accept that the father has behaved in a violent and intimidatory manner towards her, especially since suffering a stroke, but I am unable to make a finding in relation to this specific incident.
I had no difficulty in accepting the mother’s evidence that he will not answer the telephone when she rings him. She only has his mobile telephone number. She says that he invariably allows her call to go through to a recorded message or that the phone is simply switched off.
She confirmed at the July 2008 hearing that since the hearing in June 2008 [Z] had had her teeth fixed and [Y] had received operative treatment in respect of his ears and adenoids.
I accept that she advised the father in a timely way of the need for [Y] to have this operative treatment. This is what she said in answer to
Ms Falloon’s question as to why she told Ms J that “communication might work but I don’t know whether it will”:
Question: Why don’t you know whether it will work?
Answer:A lot of the questions that I ask [Mr Cassidy] I get the answer of “you’re harassing me” or “you’re lying”. If I provide him with information it’s often “you’re a liar, you’re lying, I can’t accept what you are saying”, “you’re harassing me”. If I ask him questions, “I’ll not answer that, I do not have to answer that”, and it’s just things like that that just continue on.
I was left in little doubt at the conclusion of the evidence that this is an accurate account of the way in which the father communicates with her on a frequent basis.
Ms Falloon said that the evidence made it plain that it was beneficial for the children to spend time with both of their parents and I accept that. She was satisfied with an order that saw the children spend substantial and significant time with the parent with whom they are not mainly living. This gave appropriate weight to the first of the primary considerations.
The Independent Children’s Lawyer’s concern was that there be some pattern and stability and predicability in the arrangements for the children.
In terms of the other primary considerations going to the assessment of their best interests, Ms Falloon did not support any injunctive order relating to the paternal grandfather and I have already indicated that I am not prepared to make such an order. I agree with Ms Falloon that there does not appear to be any issue in relation to the nature of the relationship between the children and the parents. That was plain enough from Ms J’s report. It was also the thrust of the evidence of the mother. The only evidence that would cut across their being a sound relationship between both parents and the children was the evidence of the father as to the various criticisms he had of the mother’s attitude towards parenting.
Ms Falloon rightly emphasised in this context the evidence of the father that he would prefer the children to be in child-care or pre-school on a Thursday then spend time with their mother. That is the equivalent of him saying that he did not recognise any particular benefit to the children in having a relationship with their mother.
I also agree with Ms Falloon in terms of positive matters for the children the parents live relatively close and that all three children will be attending the same school and that neither parent wished to interfere with that.
I also agree with Ms Falloon that there was little doubt that the evidence indicated that the mother was much more available in terms of her absence from work and the flexibility of her working arrangements to care for the children. That was not seriously disputed by the father.
The Court shares the Independent Children’s Lawyer’s concerns about the father’s inability to deal with parenting matters since separation without heavy reliance upon his family.
I must bear in mind too the quite explicit evidence of the father that he thought the use of the communication book put him at risk of being prosecuted by the police for breach of the apprehended violence order. Of course, use of the communication book would do no such thing. In fact, direct communication between the parties is authorised by the order. The father would rather make his (as it turns out, wholly specious) points about the apprehended violence order rather than use the communication book for the benefit of the children.
This is a significant insight into his ability to cater for the emotional needs of the children.
Section 60CC(3)(l) is an additional consideration that is couched in very modest terms. The Court must consider “whether it would be preferable” to make an order that would “be least likely” to lead to further proceedings being instituted. The additional consideration is not making an order that is least likely per se to the institution of proceedings but rather as to whether it would be preferable to proceed in that way.
This is a difficult matter to evaluate in the context of this dispute. In one sense, if the father does not obtain the orders that he wants I have little doubt that he will continue to participate enthusiastically in litigation, or at least attempt to continue to ventilate issues relating to parenting matters. On the other hand, I think an order that required any kind of regular communication between the two households or required the children to negotiate regular movement between the two households would in turn lead the possibility of applications being made to modify the orders.
In the end all the Court can try to do is try to respond to the circumstances that have been put before it and frame orders that will work into the future in the best interests of the children.
I agree with Mr Henness, for the mother, when he says that the whole proposition of equal time is defendant upon their being proper communication between the parties and that this case was one where that was just not going to work. I also agree with him that Ms J failed to confront the logical consequence of her own scepticism as to whether such communication was possible in the circumstances of this case.
He emphasised s.60CC(3)(d) of the Act and pointed to the significant change in the circumstances of the children that would be involved in the Court acceding to the proposals in the terms sought by the father.
He suggested that the family violence that was evidenced in the mother’s account of events of 23 June 2007 and 28 July 2007 indicated that it was not appropriate to apply the presumption of equal shared parental responsibility in this case. I agree with that conclusion and am also concerned about the father’s conduct on those occasions. I would prefer, however, to express my conclusions about the application of the presumption for parental responsibility in the context of an evaluation of the best interests of the children, and I will come to that hereunder.
In terms of the views of the children we had [X]’s quite explicit view that she wanted to spend more weekend with her mother. Ms J tried to suggest that [X] was enthusiastic about the seven days per fortnight proposal generally but I accept the evidence of the mother that it was that one aspect of the matter - providing her with weekend time with her mother - that particularly appealed to this child. I should note the father’s concession that he was aware that [X] was seeking this weekend time with her mother but that he had not proposed to the mother varying the current time-spent arrangements pending trial (or pending judgment for that matter) so as to be able to facilitate that.
Mr Ladopoulos, for the father, was right to correct an erroneous provisional opinion that I had come to in relation to the father not having made any financial support to the children since separation. I was evaluating that in the context of s.60CC(4) of the Act. However, the father has been meeting the mortgage on the former matrimonial home in which the mother and children have been residing and he did voluntarily give up the occupation of the property to enable the mother to live there with the children. Therefore I do not think that matter is a relevant factor in assessing the best interests of the children.
I thought Mr Ladopoulos very eloquently expressed the significance for the father in having an opportunity to be more than simply a “weekend Dad” with the children. He was in effect explaining why as a matter of policy Part VII of the Act recognises the need for the Court to give consideration to substantial and significant time (and the need to do so even if the presumption is not applied and s.65DAA is not engaged) and why that concept includes not just weekend time but time which enables each of the parents to participate in the routine of the children. But enabling the father to participate in matters relating to the medical care of the children, for example, have been singularly unsuccessful since separation. The child [Z]’s dental treatment was delayed for a significant period of time on account of the father’s unco-operativeness in dealing with the various alternatives that were put to him by the mother.
I was less persuaded by Mr Ladopoulos’ attempts to explain the attitude the father had obtained with respect to communication and his jettisoning his use of the communication book. I did not think, as
Mr Ladopoulos submitted, that there had been any genuine change in the father’s attitude towards the mother that accounted for his having decided to revive the use of the communication book. The inference I draw is that it was a decision that was taken because it was thought to be tactically sound.
The Independent Children’s Lawyer supported an order for equal shared parental responsibility. She said that whilst there was evidence of family violence she thought that it had grown out of the particular dynamics of the relationship between the parents and that it was not necessarily on-going. So she did not think that family violence was reason as to why the presumption in favour of equal shared parental responsibility should not be exercised.
She thought that there were benefits to the children of having both of their parents share in matters involving the exercise of parental responsibility. However, I thought Ms Falloon was essentially putting the same position as Ms J had about this and that is she was exhorting the parents to find a way to communicate properly about these matters. My difficulty is that I do not think the father will pay any meaningful attention to that exhortation.
To the extent that there had been any improvements in such matters as evidenced by the final resolution of [Z]’s teeth work, the operative treatment for [Y] and the revival of the use of the communication book, they were all matters that occurred very much in the shadow of the trial and of intimations I had made during the course of the father’s evidence as to ways in which I found it unsatisfactory. Of course, it would be unfair to suggest that he is not capable of amending his behaviour in the light of these matters being brought to his attention. My difficulty, however, is that I do not think the deep-rooted and near-pathological antipathy he has towards the mother, in which he is encouraged by his parents, will dissolve very easily. I did not think that the positive developments between the June and July hearings would have occurred if the trial had not been resuming.
There are other very significant aspects of the evidence that militate against an order for equal shared parental responsibility. I had the mother’s evidence, not contradicted by the father and in fact confirmed by him, that he had not spoken at all with the mother for a period of four months. I had the evidence as to the extraordinary episode at the handover in March when, as I have found, the father refused to accept from the mother medicine required for [Z] and went along with his mother’s intervention. This was behaviour that was highly provocative and profoundly revealing of the extent to which the apprehended violence order proceedings and related proceedings in the Local Court have coloured the father’s approach to parenting issues post-separation.
The father’s insistence that he would be fearful for his safety in the context of the mediation or counselling which Ms J had recommended was not suggestive of that being a mechanism which would serve to improve his attitude towards communication.
Of course, these parties are a very long way from concluding the legal proceedings available to them. As at the date of the trial the paternal grandfather’s appeal from the assault conviction was outstanding. The trial in relation to the allegation that the father had breached the apprehended violence order was still outstanding. These parties have not even begun to seek to resolve their property dispute. Litigation will be continuing for some time. It is an environment that is highly unlikely to lead to any improvement in the communication between the parties. Section 65DAC of the Act would require consultation between the parties in respect of matters that involve a decision about a major long-term issue in relation to a child in the event that an order for equal shared parental responsibility was made. Sub-s.(3) of that section goes on to provide that such an order is taken to require the parents to consult the other person in relation to decisions made about that issue and to make a genuine effort to come to a decision about that issue (though sub-s.(4) ameliorates to some extent the requirements of that section).
The effect of an order for equal shared parental responsibility is somewhat mitigated by the provisions of s.65DAE of the Act in any event, which provides:
(1) If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a)has parental responsibility for the child; or
(b)shares parental responsibility for the child with another person,
about decisions that are made in relation to the child during that time on issues that are not major‑long term issues.
(2)Subsection (1) applies subject to any provision to the contrary made by a parenting order.
An order for equal shared parental responsibility will, in my view, lead to an intensification of the disputation between the parties. The inability of the parties to communicate properly is something that has been patently witnessed by the children on very many occasions and an order for equal shared parental responsibility would increase the number of occasions on which the children are likely to experience that.
I do not think there should be an order for equal shared parental responsibility because, having evaluated the evidence in accordance with the s.60CC criteria as set out above, it is not in the best interests of the children that there should be such an order.
Though the s.65DAA exercise is not thereby formally engaged I should still consider whether equal time and substantial and significant time are in the best interests of the children. On account of the evaluation of the evidence in accordance with the s.60CC criteria set out above, equal time is manifestly not in the best interests of these children.
Having heard the evidence I am particularly anxious to do what I can to minimise the possibility of the children being further exposed to disputation between their parents.
I was given a Minute of Order by the Independent Children’s Lawyer containing twelve orders which dealt with matters other than with whom the children live and with whom they spend time and the question of equal shared parental responsibility. I was invited to make all of those orders with the consent of the mother and with the consent of the father save for orders that restrained the parties from permitting any relative or support person to be within one hundred metres of the children when they are moving from the care of one parent to the other or from permitting any other persons to be present whilst they are undertaking mediation or counselling.
The father opposed that because he wanted his parents to be able to attend at handovers and attend at mediation or counselling involving the parties, although I accept that he did not physically want either of his parents to participate in the face-to-face mediation or counselling. Whilst the father’s counsel pitched his opposition to these orders being made in terms of the orders being too vague or unreasonably expecting the father to control the behaviour of his parents, I readily infer that the real basis of the father’s opposition is his desire to have his parents participate in handover and indeed to have his mother attend with him at the mediation or counselling sessions. He wants to do this notwithstanding the nature of her intervention at the March handover at the shopping centre and notwithstanding the views that have been expressed by the Independent Children’s Lawyer as to the risks associated with the involvement of the paternal grandparents in handover and like occasions given the antipathy between them and the mother and vice versa. His response to that is to persist with the application. That in itself is telling.
The orders that I would propose to make would see the father spend substantial and significant time with the children. It should take place in circumstances that will be least disruptive to the routine which the mother has found for them in her home. He should spend time with the children on alternate weekends from the conclusion of [X]’s school until the commencement of [X]’s school on Monday. In due course this will become the commencement and conclusion of school in respect of both [X] and [Y] (and, then, ultimately [Z] as well) but the purport of the order will be for the younger children to be delivered and collected at the same time as [X] is delivered to or collected from school. That should take place on alternate weeks. I think that the father ought to spend time with the children on Wednesday evening, again from the conclusion of school for [X] (but all three children being collected at that time) until 7:30pm. This will give him an opportunity for an evening meal and to participate in the children’s routine to that extent but will quarantine the children from any complications arising in respect of an inability to carry out homework in the case of [X] or with any educational or medical appointments needed in respect of any of the children. The children should be delivered by the father back to the home of the mother at the conclusion of that period. That does not operate inconsistently with the obligations the father has until December of this year not to enter the premises at which the mother may reside. He need only approach the vicinity of the premises at which the mother resides. If he is punctual and if he, for example, sounds his horn upon his arrival (he is driving now after a period when he was unable to drive on account of the legacy of his stroke) that would enable the mother to properly receive the children upon their return.
It may be, in any event, that no restraining order is in existence at the end of this year. This occasion on a Wednesday evening will provide the parties with an opportunity to demonstrate to the children and to each other their ability to communicate civilly and rationally for the benefit of the children.
For the foregoing reasons I make the orders set out at the commencement of these Reasons.
I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate:
Date: 17 October 2008
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