Chadwick and Garfield
[2016] FCCA 1332
•6 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHADWICK & GARFIELD | [2016] FCCA 1332 |
| Catchwords: FAMILY LAW – Family violence – long history of litigation – child’s views – entrenched parental conflict – contrasting parenting styles – considerations of child’s best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 60CG, 61DA, 64B, 65D and 65DAB |
| Cases cited: McCall & Clark (2009) FLC 93-405 Champness & Hanson [2009] FamCAFC 96 |
| Applicant: | MR CHADWICK |
| Respondent: | MS GARFIELD |
| File Number: | BRC 8 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 24 May 2016 |
| Date of Last Submission: | 24 May 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 6 July 2016 |
REPRESENTATION
| Solicitors for the Applicant: | In Person |
| Solicitors for the Respondent: | In Person |
ORDERS
The parents have equal shared parental responsibility for all decisions concerning the long term care, welfare and development of X born (omitted) 2004 (“X”) including but not limited to his education and extra-curricular activities, his health and medical treatment, his religious observance, instruction and cultural upbringing, his name and X’s living arrangements.
Each parent has the sole responsibility for all decisions concerning the day to day care, welfare and development of X, during the period when X is living with them.
X live with the mother.
X spend time with and communicate with the father at all such times as agreed between the parties and failing agreement, as follows:
(a)Each alternate weekend:
(i)From after school on Thursday until 6.00 pm on Sunday, in which case the father or his nominee will collect X on Thursday from school;
(ii)If X has a school or sporting commitment on a Saturday from the conclusion of that commitment (which includes team debriefs, award ceremonies, camps and other team commitments) the father will observe that commitment;
(iii)If there is a reason for X to attend at sporting activities on a Sunday (finals or (hobbies omitted) commitments) the mother will provide the father with 3 days’ notice prior to the relevant Sunday;
(iv)Neither of the parties enrol X in an activity which generally occurs on a Sunday;
(v)The mother use her best endeavours to keep the father informed of X’s commitments including times and locations and use her best endeavours to cause the father to be included in all activity notifications by way of direct email from the club/school/association; and
(vi)The mother or her nominee collect X from the father’s residence at 6.00 pm on Sundays.
(b)For one half of the school holiday period as observed by X’s school:
(i)at each school holiday period, X spend the first half with the father in odd numbered years and the second half in even numbered years;
(ii)the father, or his nominee collect X from the mother’s residence at 6.00 pm on the last day of the school term/semester in odd numbered years and at 6.00 pm from the mother’s residence on that day being half way through the school holiday period in even numbered years; and
(iii)
the mother collect X from the father’s residence at
6.00 pm on that day half way through the school holiday period in odd numbered years and at 6.00 pm on the day being 2 days before the commencement of the next succeeding school term/semester in even numbered years.
(c)The fortnightly arrangement outlined in order 4(a) herein is suspended during all school holiday periods and recommences the weekend of the first week of the new school holiday term in odd numbered years and the second week of the school term in even numbered years.
X will spend time with the mother on Mother’s Day and the mother’s birthday from 9.00 am until 6.00 pm and will spend time with the father on Father’s Day and the father’s birthday from 9.00 am until 6.00 pm if X is not already in their respective care. For the purpose of the party spending time with X on Mother’s Day or mother’s birthday or Father’s Day or father’s birthday (as the case may be) that party will collect X from the other party’s residence at 9.00 am and return X to the other party’s residence at 6.00 pm.
X shall spend time with the father and the mother during the 2016/2017 Queensland gazetted school holiday period commencing Friday, 9 December 2016 as follows:
(a)from after school Friday, 11 December 2015 until 2.00 pm Christmas Day (25 December 2015) with the father;
(b)
from 2.00 pm Christmas Day (25 December 2016) until 2.00 pm
1 January 2017 with the mother;
(c)from 2.00 pm 1 January 2017 until 2.00 pm 8 January 2017 with the father; and
(d)From 2.00 pm 8 January 2017 until the commencement of the child’s new school term with the mother.
that during the 2016/2017 Christmas school holiday period changeovers shall occur by the parent who has the care of the child at the time of changeover delivering the child to the other parent’s home.
(a) in the event X telephones his father because he is angry, upset or disagrees with any discipline implemented in his mother’s home, the father be prohibited from attending the mother’s home for the purpose of collecting X; and
(b)in that event the father be at liberty to telephone the mother seeking an explanation or further understanding of any incident involving X.
Both parents will keep the other informed of their landline telephone numbers, mobile numbers, email address(es) and residential address at all times and will inform the other in writing of any proposed change at least seven days prior to any change occurring.
The parties forthwith commence and maintain a communication book with respect to X, which book shall travel with X between the parties’ respective places of residence.
This order is sufficient authority for both parents to obtain all information including reports, newsletters, photographs etc. (at their own cost, if any) from X’s school and both parents are at liberty to attend all such school events that parents would ordinarily attend.
Both parents will notify the other forthwith in the event that X sustains any injury or suffers an illness requiring medical treatment while he is in their respective care and this order is sufficient authority for both parents to discuss with and obtain information from any medical practitioner or other health professional treating X from time to time.
Overseas travel for X with either of the parents is permitted, conditional upon X not travelling to any country that is featured as a “do not travel” or “reconsider your need to travel” destination on the Australian Government Department of Foreign Affairs and Trade website being or its equivalent from time to time.
The travelling parent will provide 90 days written notice of their intention to travel and such notice will include notification of proposed destination, proposed duration of travel, proposed itinerary and proposed contact particulars and the travelling parent will not take X overseas for a period longer than 28 consecutive days unless otherwise agreed between the parents in writing.
Where either of the parties has complied with order 12 hereof, the other party will not reasonably withhold consent for X to travel overseas with that parent and the travelling parent will be responsible for all costs associated with X’s travel.
Following X travelling overseas with either parent and in the event that the travel does not fall wholly within the travelling parent’s time with X, the non-travelling parent will be entitled to exercise make-up time with X upon his return to Australia at times and dates to be at the nomination of the non-travelling parent PROVIDED THAT the dates and times do not conflict with X’s school term/semester or Mother’s Day or Father’s Day or Christmas Day.
During any overseas travel by X with a parent, the non-travelling parent is permitted to communicate with X at least twice per week by telephone or email; or other electronic communication readily available in the country that X is in at the time of that communication and the travelling parent will facilitate that communication.
During periods of non-travel by X, X’s passport will be held by the mother and the father will deliver X’s passport to the mother within 24 hours of his return from overseas with X.
The parties share equally the cost of X’s primary and secondary school fees including uniforms, books, excursions and levies, the cost of which are calculated on the basis that X attends public schools.
The mother give written notice of:
(a)care arrangements in place for X at times when X is living with her and she is working night duty; and
(b)any changes to those care arrangements.
X continue attending upon his treating Child Psychologist at the discretion of the mother and the father be at liberty to participate in any of the therapy sessions at the request or recommendation of the Child Psychologist – such costs of the psychologists’ professional fees in relation to the individual sessions be borne by the father.
The father must forthwith sign all such documents and do all such acts and things as shall be necessary to engage in and complete an approved Men’s Behavioural Change Program (Anger Management Course), and must provide evidence of his completion of the course to the mother.
Both parties do:
(a)attend and complete, as soon as practicable, an appropriate post separation parenting program ("the Program") at a suitable organisation;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the Program to the other party.
Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Chadwick & Garfield is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 8 of 2015
| MR CHADWICK |
Applicant
And
| MS GARFIELD |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns the best interest of X (“X”) born (omitted) 2004 (aged 11 years). The Court has to decide how much time X should spend with his father.
Background
Mr Chadwick (“Mr Chadwick”) and Ms Garfield (“Ms Garfield”) are the parents of X who is 11 years old in (omitted) 2016. The parties married in 1996 and divorced in December 2006. In July 2008, Ms Garfield commenced living with Mr C (“Mr C”) and his son A (now aged 12) and in 2012 Mr C and Ms Garfield married. They have one child of that marriage, B, who is now five years old and lives with Ms Garfield. Mr C and Ms Garfield recently separated. Mr Chadwick met his wife Ms A in 2009 and married in 2010. They have one child who is living with them. That child was born in (omitted) 2014.
Mr C and Ms Garfield separated in about December 2015. Ms Garfield deposed in her affidavit of 22 January 2016 that they recently separated due to irreconcilable differences.
Mr Chadwick made an application on 5 January 2015 for final orders that:
1. That the Court orders the child X to live with the applicant father, MR CHADWICK.
2. That the child spends time and communicates with the respondent mother, MS GARFIELD as this Honourable Court deems fit.
Each of the parties have filed lengthy affidavit material. This proceeding has been the subject of seven orders of Judge Baumann. On 22 April 2015 His Honour Judge Baumann ordered that a Family Report be prepared pursuant to section 62G of the Family Law Act 1975 (Cth) (“the Act”) and that the Family Report deal with the following matters:
a)Any views expressed by the child/children and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes.
b)That the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and
c)Any other matters that the Family Consultant considers important to the welfare or best interests of the child/children.
His Honour Judge Baumann additionally made orders on an interim basis as follows:
1.The child X born (omitted) 2004 shall live with the Mother.
2.The child shall spend time and communicate with the Father at all times as agreed but at least as follows:
(a)From after school Thursday to before school Monday or if Monday is a public holiday then before school Tuesday each alternate weekend commencing Thursday the 23 April 2015; and
(b)Each alternate Thursday from after school Thursday to before school Friday commencing the 30th April 2015.
3.For the weekend commencing Thursday the 7 May 2015 the child shall return to the Mother’s care at 10:00am on Sunday 10 May 2015.
4.The changeover that occurs on the 10th May 2015 (which will not occur at school) shall occur by the Father returning the child to the home of the Mother.
5.The child shall remain enrolled at the (omitted) Primary School.
6.The child shall spend time and communicate with the Father as agreed and failing agreement as follows:
(a)For the first half of the 2015 June/July school holidays.
7.After the June/July school holidays the rotation ordered for term time shall recommence as follows:-
(a)After school Thursday to before school Monday commencing 16 July 2015; and
(b)After school Thursday to before school Friday each alternate Thursday commencing the 23 July 2015.
8.For the child’s birthday (when he is scheduled to be in the care of the Mother) he shall spend from 10:00am until 2:00pm with the Father with changeover on this occasion to occur by the Mother delivering the child to (omitted) at the commencement and the Father to deliver the child to the Mothers home at the conclusion of time.
9.The parties will facilitate the child receiving or making calls to the other parent at any reasonable time when the child is in their care with all calls being in private, unrecorded and uninterrupted.
10.The parents shall not discuss these proceeding or other issues of adult conflict with or the presence of the child and will ensure other members of their household do not do so.[1]
[1] Orders of Judge Baumann made 22 April 2016
Each party submitted terms of final orders that they sought in the proceedings.
Orders sought by the father:
1. That the child, X, born (omitted), 2004, lives with the applicant Father.
2. That the Father and Mother have the joint long-care welfare, development and parental responsibility for the Child.
3. That the Child spends time and communicates with the respondent Mother at all such reasonable times as may be agreed upon in writing between the parents and, failing agreement, as follows:-
4. That in the event that the Father or Mother is unable to spend time with the Child as stated within these orders, he or she shall provide the Mother or Father with 48 hours notice of his or her inability to spend such time. The father or Mother shall nominate an alternative day, and the Father or Mother shall not unreasonably withhold his or her consent to such nominated alternative day.
5. That any requested alterations to court ordered changeover or care times on the changeover day, while the Child is in the care of the requesting parent, should only occur by written agreement between the Father and Mother of the Child with 24 hours notice. That such notice be suspended if a verifiable emergency situation arises.
6. That there is no change to and continuity of the Child’s schooling, at (omitted) State School, with all schooling needs and expenses to be provided for by the Father, or otherwise, by prior written agreement with the Mother. That the Child’s necessary change of school in 2017 is by written agreement between the Mother and Father or otherwise via an agreed or court ordered mediation agency.
7. That for the Child’s birthday, he will spend from 10am to 2pm with the parent that they are not already with. The changeover to occur by the Mother or Father initially delivering the Child within proximity to the other parent’s residence, then the other parent returning the Child within proximity to the delivering parent’s residence, at the conclusion of time.
8. With respect to paragraph 1, that the Child be collected from school by the Father commencing each Monday from June 6th, 2016, and remain in the Father’s care until being delivered to school on each Tuesday morning commencing June 14th, 2016 (for 8 nights).
9. That the Child will be collected from school to spend time with and communicate with the Mother, commencing each Tuesday from June 14th, 2016, and remain in the Mother’s care until being delivered to school the following Monday morning on June 20th, 2016 (for 6 nights). Where the Monday is a public holiday or pupil-free day that the Child continues to spend time with the Mother to be delivered to school on the following Tuesday morning.
10. That for the school holiday periods, the ordinary regime is suspended and shall recommence on the first Tuesday after the school has returned with the Mother to collect and spend time with the Child as per the alternate aforementioned arrangements.
11. That for the June/July school holidays in even numbered years the Child be collected by the Mother from school on Friday, June 24th, 2016, and then collected by the Father within the proximity of the Mother’s residence by 5pm on Sunday, July 3rd, 2016. Then remain in the Father’s care to be delivered to school on Tuesday, July 12th, 2016.
12. Then the child will be collected from the school by the Mother on Tuesday, July 12th, 2016, and remain in the Mother’s care until being delivered to school on Monday, July 18th, 2016. This pattern to continue until the commencement of the September school holidays.
13. That for the September school holidays in even numbered years the Child be collected by the Mother from school on Friday, September 16th, 2016, and then collected by the Father within the proximity of the Mother’s residence by 5pm on Sunday, September 25th, 2016. Then remain in the Father’s care to be delivered to school on Tuesday, October 4th, 2016.
14. That for the Christmas school holidays in even numbered years the Child be collected by the Mother from school on Friday, December 9th, 2016 (for 16 nights), then collected by the Father within proximity to the Mother’s residence by 5pm Friday 25th December, 2016 (for 16 nights). Then collected by the Mother within proximity to the Father’s residence by 5pm on Tuesday, 10th January 2017 (for 7 nights). Then collected by the Father within proximity to the Mother’s residence by 5pm on Tuesday, 17th January 2017 (for 8 nights). Then delivered to school by the Father on Tuesday, January 24th, 2017.
15. That if the court orders a more practicable format, then the parent with whom the Child is not spending Christmas day with shall spend from 12pm to 6pm on Christmas day with the Child.
16. That for the school holidays in 2017, the Child spend time and communicate with the Mother as agreed in writing, and failing agreement as follows:
a. For the second half or inverse to the aforementioned school holiday care arrangement.
17. That the Child will spend Mother’s Day with the Mother from 10am to 5pm if not already with the Mother by means of the Father returning the Child within proximity to the Mother’s residence. Then the Mother returning the child within proximity to the Father’s residence.
18. That the Child will spend Mother’s Day with the Mother from 10am to 5pm if not already with the Mother by means of the Father returning the Child within proximity to the Mother’s residence. Then the Mother returning the child within proximity to the Father’s residence.
19. That the Child is at liberty to communicate with the Father or the Mother by telephone at the earliest convenience that the circumstances allow.
20. That each parent shall keep the other informed of their current residential address and mobile telephone number within 7 days of the change of address or telephone number.
21. That any passport ordered by the court for the Child for overseas travel includes the condition that no travel is to be undertaken to a country or location that is not a member of, nor signed with Australia on the, Hague Convention for Civil Aspects of International Child Abduction.
22. That any international or national travel is only undertaken within the vacation agreements aforementioned, unless written consent occurs between the Father and the Mother of the Child.
23. That any passport ordered by the court for the Child should be held by the Father.
24. That this order shall be sufficient authority to the Child’s school to provide both parents with copies of reports and letters and to discuss with both parents all matters pertaining to the Child’s education and well-being and to ensure that all school records include both parents as persons to be notified in the case of emergency.
25. That this order will be sufficient authority to the Child’s doctors and all other medical practitioners to provide both parents with all information including documents relating to the health of the Child and to discuss with either parent all matters pertaining to the Child’s health and well-being. The cost of providing all such information shall be borne by the parent requesting the same.
26. That each parent must notify the other of any medical emergency affecting the Child as soon as possible.
27. That neither parent shall, nor allow others to, denigrate, physically punish or neglect the Child in any way.
28. That the court orders suspension of all aforementioned orders in the event that the Child is subjected to verifiable emotional or physical distress or abuse. That each of the biological parents are at liberty to apply for amended orders, upon giving due written notice to the other parent, to protect the welfare and development of the Child as this honourable court sees fit.
Orders sought by the mother
1. That the parents have equal shared parental responsibility for all decisions concerning the long term care, welfare and development of X born (omitted) 2004 (the “child”) including but not limited to his education and extracurricular activities, his health and medical treatment, his religious observance, instruction and cultural upbringing, his name and the child’s living arrangements which make it significantly more difficult for X to spend time with a parent.
2. That each parent has the sole responsibility for all decisions concerning the day to day care, welfare and development of X, during the period when X is living with them.
3. That X live with the Mother.
4. That X spend time with and communicate with the Father at all such times as agreed between the parties and failing agreement, as follows:
5. A) Each alternate weekend:-
i) From after school on Friday until 6 pm on Sunday, in which case the Father or his nominee will collect X at Friday from school;
ii) If X has a school or sporting commitment on a Saturday from the conclusion of that commitment (which includes team debriefs, award ceremonies, camps and other team commitments) the Father will observe that commitment;
iii) If there is a reason for X to attend at sporting activities on a Sunday (finals or (hobbies omitted) commitments) the Mother will provide the Father with 3 days’ notice prior to the relevant Sunday;
iv) Neither of the parties enrol X in an activity which generally occurs on a Sunday;
v) The Mother use her best endeavours to keep the Father informed of X’s commitments including times and locations and use her best endeavours to cause the Father to be included in all activity notifications by way of direct email from the club/school/association; and
vi) The Mother or her nominee collect X from the Father’s residence at 6p.m. Sunday.
B) For one half of the school holiday period as observed by X’s school:
i) At each school holiday period, X is to spend the first half with the Father in odd numbered years and the second half in even numbered years;
ii) The Father, or his nominee is to collect X from the Mother’s residence at 6 pm on the last day of the school term/semester in odd numbered years and at 6 pm from the Mother’s residence on that day being half way through the school holiday period in even numbered years; and
iii) The Mother is to collect X from the Father’s residence at 6 pm on that day half way through the school holiday period in odd numbered years and at 6.00 pm on the day being 2 days before the commencement of the next succeeding school term/semester in even numbered years.
C) The fortnightly arrangement outlined in Order 5A) herein is suspended during all school holiday periods and recommences the weekend of the first week of the new school holiday term in odd numbered years, and the second week of the school term in even numbered years.
6. X will spend time with the Mother on Mother’s Day from 9.00 am until 6pm and will spend time with the Father on Father’s Day from 9am until 6pm if X is not already in their respective care. For the purpose the party spending time with X on Mother’s Day or Father’s Day (as the case may be) will collect X from the other party’s residence at 9.00 am and return X to the other party’s residence at 6pm.
7 The parent with whom X is not living or spending time be permitted to communicate with X by telephone or email or other method of electronic communication at all reasonable times to suite X’s routine, with each parent to ensure that X is able to communicate freely with the other parent in privacy on such occasions and on any other occasion when X expresses a wish to do so and each party will actively encourage X to participate in such communication.
8. That both parents will keep the other informed of their landline telephone numbers, mobile numbers, email address(s) and residential address at all times and will inform the other in writing of any proposed change at least seven days prior to any change occurring.
9. That this order is sufficient authority for both parents to obtain all information including reports, newsletters, photos etc. (at their own cost if any) from X’s school and both parents are at liberty to attend all such school events that parents would ordinarily attend.
10. That both parents will notify the other forthwith in the event that X sustains any injury or suffers an illness requiring medical treatment while he is in their respective care and this Order is sufficient authority for both parents to discuss with and obtain information from any medical practitioner or other health professional treating X from time to time.
11. That overseas travel for X with either of the parents is permitted, conditional upon X not travelling to any country that is featured as a “do not travel” or “reconsider your need to travel” destination on the Australian Government Department of Foreign Affairs and Trade website being or its equivalent from time to time.
12. That the travelling parent will provide 90 days written notice of their intention to travel and such notice will include notification of proposed destination, proposed duration of travel, proposed itinerary and proposed contact particulars and the traveling parent will not take X overseas for a period longer than 28 consecutive days unless otherwise agreed between the parents in writing.
13. Where either of the parties has complied with order 12 hereof, the other party will not reasonably withhold consent for X to travel overseas with that parent and the travelling parent will be responsible for all costs associated with X’s travel.
14. That following X travelling overseas with either parent, and in the event that the travel does not fall wholly within the travelling parent’s time with X, the non-travelling parent will be entitled to exercise make-up time with X upon his return to Australia at times and dates to be at the nomination of the non-travelling parent PROVIDED THAT the dates and times do not conflict with X’s school term/semester or Mother’s Day or Father’s Day or Christmas Day.
15. During any overseas travel by X with a parent, the non-travelling parent is permitted to communicate with X at least twice per week by telephone or email; or other electronic communication readily available in the country that X is in at the time of that communication and the travelling parent will facilitate that communication.
16. During periods of non-travel by X, X’s passport will be held by the Mother and the Father will deliver X’s passport to the mother within 24 hours of his return from overseas with X.
17. The parties share equally the cost of X’s primary and secondary school fees including uniforms, books, excursions and levies, the cost of which are calculated on the basis that X attends public schools.
The principal differences in relation to the order sought by the parties is that in the case of the Father, he sought orders that the child X live with him subject to an arrangement whereby X remain with him for eight nights out of every fortnight and that X live with his mother on six nights per fortnight (draft orders 1, 8 and 9). The relevant parts of the draft orders submitted by the mother in relation to parenting provided that X live with the mother and that he spend each alternative weekend with his father. Each of the parties sought that they have shared parental responsibility of the child.
The Evidence
At the final hearing held on 24 May 2016, each party was self-represented. Mr Chadwick relied upon a case summary filed on 17 May 2016, five affidavits filed by him during the course of proceedings, three affidavits sworn by his wife Ms A and an affidavit of Mr A. He further relied upon documents subpoenaed from the Commissioner of Queensland Police Service and Department of Communities, Child Safety and Disability.
Ms Garfield relied upon a case summary and two affidavits sworn by herself.
Mr M, the family report writer was required for cross examination by Mr Chadwick and he gave evidence by telephone from (omitted) in Victoria.
Each party gave oral evidence and Mr Chadwick produced an audio recording of discussions between X and Mr C and Ms Garfield which was the subject of evidence in paragraphs 3 to 10 of his affidavit sworn 16 June 2015. That audio recording was largely inaudible and unintelligible.
In summary, Mr Chadwick has by his affidavit material and oral evidence has raised concerns about:
a)X's use of technology (which he regards as an indulgence) and the belief that he is misusing technology whilst living with his mother[2];
b)that there is some concern about X's personal hygiene, in particular dental hygiene; and
c)that Ms Garfield could not provide a proper parental support both in terms of discipline and supporting X in his home work or school studies.
[2] Affidavit of Mr Chadwick sworn 6 March 2015 at paragraph 29
The evidence presented by each of the parties revealed a very high level of animosity between the parties extending over many years. Ms Garfield’s affidavit of 16 February 2015 contained 109 paragraphs and detailed her grievances with the way that she says that she was treated by Mr Chadwick since about July 1999. Without repeating each of the matters that she raised she put her views that she regarded Mr Chadwick as being extremely controlling in all aspects of her life, that he was volatile and aggressive, that he was quick to anger both in response to her but also in response to third parties, including strangers. She also gave evidence in relation to the behaviour of Mr Chadwick towards X, the substance of which was that she regarded his behaviour as over controlling and that X returned from visits with his father unsettled and openly defiant towards her. She also gave evidence that he would become uncooperative and abusive of her, calling her names and referring to her as “missy” which was also an expression said to have been used by Mr Chadwick.
The nature of the matters raised by each of the parties together with the lengthy material filed, demonstrates that both parties sought to cast the other in the worst light. To some extent Mr Chadwick has heightened the impression that he is somewhat obsessive, unyielding, controlling and volatile by the manner in which he responded at length to each matter that has been raised against him. In his affidavit material filed in 2014 and 2015, Mr C was to a great extent a focus of Mr Chadwick’s animus. In his first affidavit sworn 30 December 2014 he alleged that:
a)Mr C was interfering in the negotiation of handover times;
b)Mr C had “contrived and applied for a false domestic violence order in Ms Garfield’s name, in an attempt to obtain greater control over X’s care and handover time” ;
c)That Mr C had inappropriately yelled at X on occasions and forced him into his bedroom; and
d)That he was “…apprehensive and of the ambivalent attachment that X has with both Ms Garfield and Mr C.”
The complaints in relation to Mr C continued in detail through the affidavits filed by Mr Chadwick in 2015.
On 22 January 2016 Ms Garfield filed an affidavit which deposed that:
a)She had recently separated from Mr C;
b)The child A who was a child of Mr C and his former wife had returned to live with his mother in Brisbane;
c)She continued to reside at (omitted) with her sons X and B;
d)Due to financial circumstances as a result of the separation, she would be unable to send her sons to a private school and that both sons would be attending (omitted) State School.
From that time, despite the virulent and lengthy criticisms of Mr C in the affidavit material that had been filed previously by Mr Chadwick, Mr C was then enlisted by Mr Chadwick in this proceeding. What purports to be letters and texts sent by Mr C to Mr Chadwick, make generalised critical remarks of Ms Garfield.
In a letter purportedly written by Mr C (which uses language which is similar to that used in correspondence and affidavits drafted by Mr Chadwick) Mr C makes remarks critical of Ms Garfield. I have not placed any weight in relation to that material as it does not directly relate to the issues that I must decide. Further, Mr C did not give evidence in the proceeding. It is in my view disappointing that Mr Chadwick has sought to use Mr C to make generalised negative remarks regarding Ms Garfield. Such conduct is unlikely to lead to a situation where there is sensible cooperation between parents so as to act in the best interests of their child.
The overwhelming impression given to the Court by Mr Chadwick was that he was completely absorbed in this proceeding and that he is fixated with the notion of obtaining the orders that he seeks. As a corollary, doing harm or causing upset to his former wife became a fixation. It is telling that in an affidavit filed by his wife dated 30 March 2015 (at paragraph 8) she states that she is:
…temporarily residing with friends who can support me and our other son, C, whilst Mr Chadwick is absorbed in this necessary battle to defend the future welfare and development of X.
Ms A also gave evidence in her affidavit of 3 May 2015 in relation to Mr C, directly quoted as follows:
When I met Mr Chadwick rarely witness any argument between my husband and Ms Garfield about the times, places and days to collect X or deliver him back. They were flexible and the communication was friendly. The problems and disputes started when Mr C became Ms Garfield’s partner and the imposed and manipulation of times was under their control and we accepted for the sake of X.
Allegations of Family Violence
In an affidavit sworn 3 April 2016, Mr Chadwick deposed at [20] that on 17 November 2015 he received a phone call from X:
who was in a severely distressed state and unable to talk coherently for the first few minutes of the call. After I was able to settle him, he revealed to me that Ms Garfield had hit twice on the bottom, threw him to the ground twice and used a belt to whip him…
He gave further evidence that he had reported the incident to the Child Protection Investigation Unit (CPIU) and the Queensland Police who investigated the incident. No charges or any further action was taken in relation to that incident by the police or the CPIU and Mr Chadwick subpoenaed the records of the police investigation and referred to them in his evidence before the court.
The police report into this incident which is contained in report number (omitted) provided under the general report the following:
The informant contacted CP IU and reported that the details as per the M0. There is a custody order in place where the informant has contact with the child every Thursday and every second weekend. Detectives from (omitted) CPIU attended the address of the subject child at (omitted). Detectives spoke with the mother of the child who confirmed that the child was being disrespectful and objectionable to instructions to do his home-work. The mother advised that the child was verbally abusive and called her profanities and is said she was not his mother. The mother stated that she has been having behavioural issues with the child. The mother confirmed that she tried to discipline the child by taking his iPod and tablet but that that the behaviour continued so she smacked him on the backside with her hand and belt. Detectives spoke with the subject child who corroborated the version provided by the mother and stated that he was being disrespectful to his mother. The child stated that his mother smacked him on the backside with her hand and a belt and put him in his room. The child stated that he contacting his father as he wanted to come home and collect him from his mother’s address. Detectives observe the child and he did not have a mark, or bruise or injury to his body. The child stated that he did not want police to get his mother in trouble and he just wanted to live in a “normal family home”. Support link offered and accepted. Informant advised of the outcome. Crisis care contacted and nil CPI is history. There is no further police action as this matter falls within the realms of domestic discipline under section 280 of the criminal code.
What the report indicates and the evidence of Ms Garfield in the witness box and by affidavit was that she was exasperated by X’s behaviour. Her reaction is not ideal but explicable and that is the extent of the allegation. Ms Garfield gave evidence regarding this incident at paragraph 32 of her affidavit sworn 22 January 2016.
Ms Garfield referred to instances of behaviour by Mr Chadwick during their marriage and following that she had been subjected to family violence by Mr Chadwick. She asserted that Mr Chadwick had been verbally abusive to Mr C. In 2010 she applied for a domestic violence order but subsequently withdrew that application.
I deal with allegations of Family violence below.
The Family Report
As a result of the orders of this Court referred to above, a family report dated 25 June 2015 was obtained from Mr M. His qualifications and experience are set out in his report and I accept that he possesses the expertise necessary to write the report for the assistance of the Court and the parties. That report is comprehensive and prepared following interviews with Mr Chadwick, Ms Garfield, Mr C and X. The report writer also had regard to correspondence with a psychologist who had been working with X. In his report at [14] Mr M noted the high level of intense conflict between the parties and the apparent breakdown of all communications among them. He also noted conflict in relation to the present and future parenting arrangements, his school attendance and chosen sporting activities.
The report also outlines at length Mr Chadwick’s ambivalence towards Mr C whom he regarded as having a “controlling personality”. In a history obtained from Ms Garfield, the report writer noted that in her view, the more time X spends with his father the angrier at her he becomes. She alleged Mr Chadwick yells at X, leaves him in his work vehicle when he attends a job and firmly instructs X that he has to obey his father. She expressed concern that there was a lack of a unified approach between herself and Mr Chadwick in relation to disciplinary issues arising in relation to X and that this was exemplified by the child telephoning Mr Chadwick when he became upset with his mother, with the father coming to collect the child rather than intervening to try and maintain a level of discipline as between the parents and their approach to the child. As a result of the concerns she had in relation to X’s behaviour, she had consulted with a child psychologist who had provided assistance to X. A theme in the material from both Mr Chadwick and Ms Garfield was Mr Chadwick’s irritation at the fact that the child X had been given an iPad and iPod and that he had, in his words:
become addicted to the device to the extent that he would hide it under his sheets at night, looking at games.
Mr C was also interviewed by Mr M. I consider his views to have become less relevant given that he is no longer part of the family home with Ms Garfield.
The Child’s Views
The report writer stated at [73] that the child X was:
…clear in conveying his preference for the status quo on the basis that such an arrangement is fairer. He expressed his preference for the status quo to continue on the basis that he would also like to participate in several of the family activities at home during a weekend with his mother. When asked to provide some examples of just what he was referring to, X said he would like to play on the trampoline, iPad, etc., which are all items his father does not have.
In speaking to the report writer, X conveyed that when he had been in dispute with his mother whilst staying with her, he would ring his father and ask to be collected. The family consultant noted that the child refers to Mr C as “dad” and Mr Chadwick being his biological father as “daddy”. X stated that his father is:
an individual who becomes exceedingly angry when upset and this becomes quite apparent due to the tone of his voice.
He also stated that his father had become angry at his use of the iPad and on one occasion had hit his iPad onto the ground and its protective cover had ripped.
The Child’s Interaction with Mr Chadwick
A matter which was raised in the Family Report which became an issue in the case and which was dealt with in submissions and evidence by Mr Chadwick was the observation by Mr M in relation to X’s interaction with his father. He noted that in the presence of Mr Chadwick the child X started to speak in a “distinctive baby-like squeaky voice” to his father and that the change was quite noticeable compared to his earlier discussions with the family consultant and his mother. The report writer noted that the child consistently maintained the same tone of voice throughout the session with his father.
It should also be noted that the Family Consultant made positive comments about Mr Chadwick’s interaction with his son. At [88] of his report he stated:
The observed interactions between Mr Chadwick and X appeared positive (and) suggestive of the notion that a close, warm and loving relationship exists between father and son. Whilst Mr Chadwick was quite instructive and prescriptive in his interactions with X, he also presented as gentle, considerate and supportive of X’s actions. Notwithstanding, X’s very distinctive baby-like squeaky voice, which he displayed throughout the session…
The Report Writer’s Evaluation
In the evaluation commencing at paragraph 99 of the report, the report writer noted that the parties:
a)do not appear to possess the capacity to share parenting decisions;
b)they maintain quite, different and at times polarised parenting views and styles which would result in further instability and uncertainty for X if they had to jointly consider parenting decisions;
c)that this is a particular situation whereby sole parental responsibility would be a more appropriate consideration so as to ensure X is not placed in a position whereby his parents are unable to effect constructive child-focused parenting decisions because they remain entrapped in an environment of advocating for their own competing positions.[3]
[3] Family Report at page 32
The report writer noted at [103] that:
… within an intact family, when children’s behaviour is addressed or they are disciplined and become unhappy or angry, it is often counterproductive for one parent to undermine the other. He noted that Mr Chadwick actually reinforces a diminishing importance of the role and authority of X’s mother and stepfather have in his life. By Mr Chadwick rescuing X it reinforces that he is not wrong and his father’s position in the family trumps that of this mother and stepfather.
The report writer noted that the child psychologist noted that some of the child’s anger struggles seem exacerbated by his exposure to two different parenting styles.”
He also noted that:
it was extraordinarily concerning Mr Chadwick. Has reportedly reacted in a highly volatile manner by throwing and/or damaging his son’s iPad not necessarily for something his son has done, but because the iPad would likely represent this apparent sense of “indulgence” and the negativity he appears to strongly harbour towards Mr. and Mrs. Garfield.
The Court notes that an insight into Mr Chadwick’s view of technology can be gleaned from paragraph 14 of his affidavit sworn 3 March 2016 where he states:
" however, X had been witnessed by Ms A myself to have an addiction to the non-educational games downloaded at L’s residence to the extent that he was found at times to be secretly playing on the device, disturbing his sleep, in the early hours of the morning, or so absorbed with the games as to not even hear instructions when travelling in the vehicle.
As was noted by the family report writer in his evidence to the court, the child's reaction to technology is not unusual and that parents having to work to control access to technology at night times is a common feature of responsible parenting.
The Report writer expressed the view that:
…it would appear that the level of animosity Mr Chadwick maintains is so great that he opposes most things even associated with Mrs. Garfield and her husband merely because of the source.
The accuracy of this statement became apparent in the oral evidence given by Mr Chadwick at the hearing by way of example. Mr Chadwick had previously objected to the child X being moved to a private school. Due to her separation from Mr C and her financial circumstances, Ms Garfield had determined that she could not afford to send the child to a private school. Mr Chadwick then sought to criticise her on the basis that she was sending the child to the school that Mr Chadwick had previously advocated as being the appropriate school. It became plain that because Ms Garfield had decided that he not go to the private school and go the local school previously advocated by Mr Chadwick, that then became a subject of complaint and criticism. Mr Chadwick noted in the course of the cross examination of Ms Garfield that, although he lived only 500 metres from the school, this was not convenient to him because he had to collect the child through the school office rather than by simply entering onto the school grounds. When it was pointed out that parents were not generally permitted to roam through school grounds he grudgingly accepted this.
This was an example of Mr Chadwick wishing to raise difficulties in relation to a matter simply because Ms Garfield had suggested this as a solution.
Mr M the report writer, noted at [110] that:
…X needs to experience a greater level of cohesion or a bridge connecting both parents in some way, shape or form. In this Family Consultant’s opinion, it will only be at that stage he will be better equipped to emotionally manage the parental conflict. Unfortunately, as the parties appear to lack the capacity to implement such and provide their son with the necessary tools to emotionally grow, very prescriptive Final Orders will to some degree assist in establishing greater clarity, predictability and boundaries regarding the parenting arrangements.
He also noted at [111] that he commended Mr Chadwick’s frankness and acknowledgement of his need to “better control my own personal intensity” and noted that the child X had conveyed his sense of fear for the physical safety of an elderly person, during an incident the child related when his father was angry coming out of a bank. The child purposely drew his father’s attention from this individual as he feared for that person’s physical safety. The report writer noted:
such an account by a 10 year old child is alarming, powerful and perhaps may be another reason to understand why X regresses and speaks with his father in such a baby-like voice so as to minimise the likelihood of his father becoming angry with either him or someone else.
Mr Chadwick in his cross-examination of Mr M challenged the report writer in relation to those statements regarding the incident outside a bank but he did not deny that an incident had occurred. He then tried to suggest that his behaviour was appropriate because he had been challenged in some way by the other person. He also put to Mr M that X speaks in a baby-like voice in his presence because he “revers his father”. He also acknowledged the incidents involving what was thought to be a loss of a scooter which provoked a very angry reaction from him and the iPad were unfortunate (acknowledgement of which is to his credit). An insight into Mr Chadwick’s attitude and his behaviour towards others can be seen from his own affidavit affirmed on 6 March 2015 at [38] where he states:
I agree partly that X has an aversion to my forceful reprimanding which always comes with moral reasons and never with swearing or a label – only the selfish, lazy, neglectful or irresponsible action is labelled. It is the same technique I have developed and utilised throughout my (omitted) career. Nearly every year eight or year nine student in (omitted) who have witnessed the technique over many years has an aversion to the sternness of it too. Many would label or perceive it as "Mr Chadwick really angry" but it works if it's done consistently."
What is of concern to the Court is that the report writer had prepared a very detailed and helpful report which I would have thought would have been of benefit to Mr Chadwick to read and carefully consider and possibly seek to modify his behaviour or approach. The report prompted an application by Mr Chadwick to remove the report from the Court file and for another report writer to be appointed. That application was refused by Judge Baumann and in the course of making orders he ordered that an addendum be prepared to the report writer’s report explained the reasons that Mr Chadwick’s wife had not been interviewed for the purposes of the family report. The explanation set out in the further report is coherent and sensible, that being that no party had mentioned Ms A as being a negative or positive presence in this matter.
The Departure of Mr C
In the course of Mr M giving evidence, the Court asked him if his opinion and recommendations were affected by the evidence obtained since his report had been written, that Mrs and Mr C were separated and that he was no longer in the family home. Mr M was also asked about the arrangements that were proposed by Ms Garfield in relation to the care of the child X and the child of the marriage between herself and Mr C whilst she was working nightshift.
As to the effect of the separation between Mr and Ms Garfield, Mr M expressed the view that the level of conflict between the parties was extraordinarily intense and that the intense reaction directed towards Mr C “resonated as a pinnacle of the impact on the parties”. He offered the view that in his absence it may be that the tensions may ease slightly as between Mr Chadwick and Ms Garfield. In relation to the matter of the arrangements for the care of the child X and the other child of the marriage between Mrs Garfield and Mr C, Mr M stated that an arrangement whereby two overseas students who are females aged 17 and 18 years old had been paid by Ms Garfield to look after the children from about 9.30pm until 7.30am in the morning on four days being Saturday, Sunday, Monday and Tuesday each week may cause concern. In clarifying the issue, Ms Garfield gave evidence that that arrangement was a short term one only for another two weeks and that a long term nanny who is known as “Nanny Ms S”, who is a mature person in her fifties who possessed a blue card and lives locally to Ms Garfield, would be employed to act as a nanny for the children at times when Ms Garfield was working night duty.
In relation to the arrangements which involved the care by only the young students, he said that information may:
“raise an eyebrow and the preference would be that there would be a mature legal adult; it must be done in circumstances where the mother could be contacted at work and that any information in relation to the arrangements were open and clear to both parents”.
He did not express any particular concern to an arrangement involving the mature nanny.
Mr Chadwick disputed that there was any arrangement with “Nanny Ms S” and that she had not been seen for some time and that the arrangement which was being suggested by the wife which would commence in “a couple of weeks times” was in fact a lie. I questioned Ms Garfield closely in relation to this and I do accept that she has sufficient concern for the care of her children and has arrangements in place with a suitable nanny to care for the children at times when she is working nightshift. The arrangements that she has made reflect the difficulties faced by working single mothers and is a necessary compromise.
Findings and Conclusion
In my opinion, having considered the evidence, the recommendations which were made by the report writer at [113] – [116] and [118] - [121] of his report constitute a sensible ongoing arrangements for the parental care of X and should be made having regards to the best interests of the child. I do not agree with the recommendation at [112] that joint parental responsibility is not an appropriate consideration. In my opinion the presumption created by s.61DA of the Act is not rebutted in this case. I note that each parent seeks orders for shared parental responsibility of the child. They had each sought this after having access to the Family Report. I make this finding in relation to the balance of the recommendations having regard to the matters required to be considered pursuant the s60CC of the Act which I deal with specifically below.
In relation to the recommendation at [117] of the report that Mr Chadwick only telephone X on one occasion per week on a set day and time, I find that to be unduly restrictive. If it were made as an order it may be inadvertently breached and lead to further unnecessary conflict which will not be in the best interests of the child or the parents. Mr Chadwick should be aware that the report writer made the recommendation for the reason that he saw Mr Chadwick as using the telephone calls to X as a means of undermining X’s relationship with his mother. If Mr Chadwick is incapable of abiding by an order that allows him to telephone his son without Court imposed restrictions then this will be a matter that will be taken into account in the unhappy event that this matter requires the further intervention of the Court.
I do note a distinct lack of insight provided by Mr Chadwick in relation to his behaviour; his attitude to his former wife; or a wider perspective on what constituted the best interests of the child. He gave every impression that he was seeking to effectively win the argument between he and his former wife rather than focus on arrangements that provide the best opportunity for X to grow up and develop as young person. For these reasons I adopt, subject to modifications that I consider appropriate, the recommendations of the report writer at [113-121] which were as follows:
113. X to continue living with his mother, Mrs. Garfield.
114. Mr Chadwick to spend time with X on alternate weekends from the conclusion of school on Friday to the commencement of same the following Monday morning, plus on alternate Thursdays in the intervening week on an overnight basis from the conclusion of school on Thursday to the commencement of same the following Friday morning.
115. The parties to equally share all school holidays inclusive of birthdays, Christmas, Easter and other significant events.
116.Mr Chadwick be at liberty to fully participate in all of X’s school related events such as parent/teacher interviews, receipt of school newsletters, school photos, etc.
117. Mr Chadwick to telephone X on one occasion per week on a set date and time.118. Mr Chadwick to fully participate in and complete a Men’s Behavioural Change Program (anger management) and provide a certificate of completion to either Mrs. Garfield or her acting solicitors.
119. X to continue attending upon his treating Child Psychologist at the discretion of Mrs. Garfield. Mr Chadwick be at liberty to participate in any therapy sessions at the request or recommendation of the said Child Psychologist and he be responsible for payment of the psychologists’ professional fees in relation to his individual sessions only.
120.Both parties and their respective partners to participate in and complete a post-separation parenting program for the purposes of enhancing their understanding of the benefit to children in maintaining an ongoing relationship with both parents following separation and in an attempt to improve their communications with one another as separated parents. Such parenting education to also provide a greater understanding to the parties that consistent parenting styles and practices will benefit X in the long run.
121. Lastly, the aforementioned parenting arrangements with respect of X’s fortnightly time with his father to be strictly adhered to. In the event X telephones his father seeking to be collected because he is angry, upset or disagrees with any discipline implemented in his mother’s home, Mr Chadwick to be prohibited from attending Mrs. Garfield’s home for the purposes of collecting X. Notwithstanding, Mr Chadwick be at liberty to telephone Mrs. Garfield seeking an explanation or further understanding of any incident.
Application of the Act
The principles governing the Court’s determination in this matter are set out in the Act.
Section 65D of the Act subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”) gives the Court the power to make a “parenting order” as defined by s.64B of the Act.
In deciding whether to make a particular parenting order s.60CA requires that I must have regard to the best interests of the child as my paramount consideration.
In determining what is in children’s best interests I must consider the matters set out in section 60CC(2) the “primary considerations” and section 60CC(3) the “additional considerations”.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and, as a note to s.60CC indicates, are consistent with the first two “objects” of Part VII, as stated in s.60B. The objects and principles set out in s.60B are:
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.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CC(3) sets out 13 additional considerations which I will refer to later in detail in these Reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (section 60CG).
I will also be guided by section 60B which sets out the objects of Part VII of the Act and the principles underlying it.
Application of law to the circumstances of the case
Section 60CA of the Act provides that the Court should have X’s best interests as its paramount consideration. The best interests of the child are determined by considering the background facts and the mandatory concerns set out in section 60CC(2) and section 60CC(3).
I must now consider the application of the legal principles in the circumstances of this case namely the background facts and the findings I have made in these Reasons and how they apply in determining what parenting orders are most likely to promote the best interests of X.
Section 60CC Factors
Section 60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child’s parents.
This is a primary consideration for the Court, although one that is not determinative of the orders that I will make. Both parties are seeking equal shared parental responsibility.
As set out earlier in paragraph 50 of these Reasons, s.60B(a) refers to the meaningful relationship of the child with “both of the child’s parents”. Nevertheless, and despite it being a primary consideration, it is but one of numerous factors to be addressed in ultimately determining the child’s best interests. As a Full Court observed in Champness & Hanson[4]:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider
“the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.[4] [2009] FamCAFC 96
The Full Court in McCall & Clark[5] further clarifies the meaning of “a meaningful relationship” by determining that the concept is qualitative and prospective. The Court is therefore concerned that the quality of X’s relationship with his parents is not determined by a calculation based on the amount of time he spends with them in the form of days or hours, but rather, it is the quality of the relationship between the child and his parents which is of the most significance.
[5] (2009) FLC 93-405
Whilst I acknowledge the force of the report writer’s recommendation that Ms Garfield have sole parental responsibility, I do not believe that the presumption of shared responsibility has been rebutted in this case.
Section 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I note there have been allegations of family violence made by both parties and it would appear that both parties have committed family violence having regard to the expanded definition of that expression in s. 4AB of the Act. Whilst these matters are serious and I pay regard to them I do believe that orders have to be made in order to protect X from family violence. The nature of the allegations do not rebut the presumption of shared parental responsibility.
Additional considerations – Section 60CC(3)
Going through the considerations seriatim, I find as follows:
Section 60CC(3)(a) – Any views expressed by the child and any factors (such as the child’s maturity or legal of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
The evidence is that the child has expressed a clear view that he would prefer the parenting arrangements to remain as they are at present. That evidence is dealt with at [30] above.
Section 60CC(3)(b) – The nature of the relationship of the child with the parents.
I am satisfied that the nature of X’s relationship with his parents is one highlighted by his reactions to his parents’ conflict and hostility. This results in situations where if disciplined by the mother, X seeks to return to his father and is allowed to manipulate his parents to his own advantage. The lack of effective communication between the parents and inability to make cooperative decisions has resulted in X seeing his mother and father as divided and competitive parents.
Based on the history provided by to the Family Consultant, X has a problematic relationship with his father. I am satisfied that while he loves his father and wishes to have a continuing relationship with him, there is evidence that X experiences a fear of his father’s anger which is manifested in his “regression in speech”[6] due to uncertainty as to his father's responses.
[6] Family report at [108].
Section 60CC(3)(c) – Participation by each parent in relation to the child.
I find that each parent has sought to participate in decisions about the child, spend time and communicate with the child. There is evidence from the mother that Mr Chadwick has failed to pay his share of child maintenance or contribute adequately to the living expenses of the child. It is hoped that with the conclusion of these proceedings, Mr Chadwick will return to full time work as a (occupation omitted) and make an adequate contribution to maintain X.
Section 60CC(3)(d) – The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from the parents.
I find that the orders proposed by the Family Consultant and the Orders that I make are unlikely to have a significant effect in relation to this, as no major change from the current arrangement is effected by these orders. I find that a change to the child’s circumstances including the separation from his brother B, with whom he is living is likely to be stressful to him and would not be in his best interest. The tension created by these proceedings, the ongoing stress between his parents and the loss of the relationship between him and Mr C and his step brother A will no doubt be difficult for him. I think that to maintain the relationship with his younger brother is important and is a matter which weighs in favour of maintaining the status quo.
Section 60CC(3)(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
I find that the orders will not substantially affect the child’s right or ability to maintain personal relations or direct contact with both parents. I do not think that there is any practical difficulty or expense associated with the child spending time or communicating with both parents.
Section 60CC(3)(f) – The capacity of each of the child’s parents and 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
I am satisfied that both parents have the capacity to provide for the day to day physical needs of the children. However I am not satisfied that the father has acted to foster and develop the relationship between the child and his mother. I find that the process of complaints made by the father against the mother and the step father, Mr C and the involvement of the parents through applications made by the father in difficult and stressful litigation, has not been directed towards both parents being supportive of the other parent in the care of the child.
I am satisfied therefore that the father has not fulfilled his parenting responsibilities to facilitate and encourage a close and continuing relationship between the children and the other parent.
Section 60CC(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
X is 11 years old (turning 12 in (omitted) 2016). At a time where he is about to go to high school, he has experienced significant family conflict and tension. He also has and has a younger brother and I believe it to be important that he continue to live under the current parenting arrangements. There is no particular lifestyle or cultural issues raised in the evidence.
Section 60CC(3)(h) – Aboriginal or Torres Strait Islander.
This circumstance does not apply as X is neither of Aboriginal nor Torres Strait Islander descent.
Section 60CC(3)(i) The attitude to the child to the responsibilities of parenthood demonstrated by each of the child’s parents.
It is apparent that both parents care deeply for X and Mr Chadwick certainly wishes for his son to succeed to the best of his ability academically. However, I think that there is a serious issue in relation to Mr Chadwick’s attitude towards Ms Garfield and his attempts to undermine her role as a parent. Both parents have the capacity to provide for the needs (including emotional and intellectual needs) of the child however it is my view that the Father’s in ability to make cooperative parenting decisions and his somewhat volatile nature mean that the needs of the child will be better met spending a greater amount of time with his mother. The level of stress that the father experiences in relation to the child simply spending time on electronic devices, or where he fails to engage in education games or pursuits on those devices, indicates that he is he is creating an atmosphere in the home which is unlikely to assist the child’s emotional needs in a unstable time of his life. Rather than being concerned that the 12 year old is afraid of his father and is speaking like a very small child because of this, he suggests that the child is in awe of him. The acknowledgement that his son spoke in a childlike voice in his presence coupled to an explanation that he did so because the child “revers his father” seems to lack insight that his approach to parenting may not be working effectively in the best interests of his son.
Section 60CC(3)(j) - Any family violence involving the child or a member of the child’s family.
I have dealt with this consideration above.
Section 60CC(3)(k) – If a family violence order applies or has applied, to the child or a member of the child’s family.
No family violence order applies to the child or any of the parties to the proceeding.
Section 60CC(3)(l) – The order that would be least likely to lead to the institution of further proceedings in relation to X.
The orders that I make are preferable as they reduce the likelihood of further proceedings. I say this because they continue the orders in relation to parenting that have been in place since 22 April 2015, which on the evidence, are working in the best interests of X.
Section 60CC(3)(m) – Any other fact or circumstance that the Court thinks is relevant
I have detailed in these reasons all matters that I consider relevant. I have concluded that it is not in X’s best interests that he increase the time that he spends with his father. The evidence of the father indicated that he has real difficulty separating what he sees as his own interests and needs from those of his child. The evidence also revealed an almost intractable level of conflict between the parents which make effective parenting extremely difficult.
Parental responsibility
In my view the presumption of shared parental responsibility is not rebutted. I have discussed this above. The parents should be aware that I have made this finding against the clear recommendation of the Family Report writer. In my view, to make the order would send the wrong message to these parents; they have to work together in order to jointly promote the best interests of X.
The responsibilities arising from shared parenting are set out to some extent in order 1 of the orders that I have made. This will necessarily involve some level of respectful cooperation between the parents. Both parents have sought orders for shared parental responsibility.
Equal Time
Having made that decision, I am required by s.65DAA(1) and (2) to consider whether to make orders that the children spend equal time and if not equal time, then substantial or significant time with each parent. The section provides:
“Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child the Court must:
(a) consider whether the children spending equal time with each of the parents would be in the best interests of the child/children;
(b) consider whether spending equal time with each of the parents is reasonably practical; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child/children to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
(b) the Court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the Court must:
(a) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child;
(b) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
In this matter the child spending equal time with each parent is not appropriate for the reasons expressed earlier. There have been significant issues arising from Mr Chadwick’s attitude to his parenting responsibilities and it appears that the arrangements created by the interim orders have worked in the best interest of the child. Equal time would mean that X would be removed from his relationship with his younger brother which would possibly add to further dislocation in his life. The arrangements set out in the order provide for Mr Chadwick to have significant and meaningful time with X.
For a parenting order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times.
It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
The orders made allow for this to occur.
In coming to my final conclusions, I have also been guided by the objects and principles set out in s.60B, quoted earlier.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 6 July 2016
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