Chapman and Timms
[2014] FamCA 316
FAMILY COURT OF AUSTRALIA
| CHAPMAN & TIMMS | [2014] FamCA 316 |
| FAMILY LAW – CHILDREN – Final Orders – parties’ proposals in relation to time spent with the father were aligned – parental responsibility – father sought equal shared parental responsibility while mother sought sole parental responsibility with the child’s time with the father to be suspended for a period of six months – experts expressed serious concerns in relation to the psychological welfare of the child – child described the mother as “evil” – child’s behaviour towards the mother the result of outside influence – father demonstrated manipulative behaviour – best interests of the child – meaningful relationship – risk of alienation – child’s time with the father to be suspended for a period of four months – mother to have sole parental responsibility for the child’s health and education but required to consult with the father – parties have shared parental responsibility in relation to other matters. |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DA, 65DAA, 69ZN, 69ZT Telecommunications (Interception) Act 1979 (Cth) Evidence Act 1995 (Cth) s 138 |
| Maluka & Maluka (2011) FLC 93-464 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 MRR v GR (2010) 240 CLR 461 |
| APPLICANT: | Ms Chapman |
| RESPONDENT: | Mr Timms |
| FILE NUMBER: | MLC | 582 | of | 2012 |
| DATE DELIVERED: | 19 May 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 22 November 2013, 4 December 2013 and 24, 25 and 26 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sweeney |
| SOLICITOR FOR THE APPLICANT: | Baker Jones |
| COUNSEL FOR THE RESPONDENT: | Mr Atkinson |
| SOLICITOR FOR THE RESPONDENT: | Amad & Amad |
Orders
The mother shall have sole parental responsibility for the child J CHAPMAN-TIMMS born … 2003 in relation to the following long-term issues:-
(a) The child’s education (both current and future);
(b) The child’s health;
on condition that:-
(c)The mother will contact the father in writing and provide her views about any such issue;
(d) The mother shall consult with the father with regard to any such issues
(e)The mother and the father will make a genuine effort to come to a joint decision about any such issues; and
(f)If no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing (electronically or otherwise) of the decision.
In all other respects the parties shall have shared parental responsibility for the child.
The father shall spend time with the child during school terms as follows:-
(a)Each alternate weekend from after school on Friday (or 3.30pm if not a school day) until the commencement of school on the following Tuesday (or 9am if not a school day);
(b)During each of the three mid-year holidays for one week to commence at 9am on the first Saturday of the said holiday and to conclude at 6pm on the second Saturday;
(c)From 3pm on Christmas Day to 3pm on Boxing Day in 2014;
(d)For one week commencing 3pm New Year’s Day 2014 to 3pm on 8 January 2015;
(e)From 10am on Saturday 17 January 2015 to 3pm on Monday 26 January 2015;
(f)As and from the 2015/2016 long summer holidays, for one half of the said summer holidays at times to be agreed and in default of agreement for the first half of the said holiday period commencing 2015/2016 and in each alternate year thereafter and for the second half of the said holiday period commencing 2016/2017 holiday period and in each alternate year thereafter PROVIDED that in any year the holidays will be calculated from the first Saturday of the school holiday period being the first day and the Saturday immediately preceding the commencement of the new school term shall be the last day of the holiday period.
(g)As and from 2015, from 3pm on Christmas Eve until 3pm on Christmas Day and each alternate year thereafter and in 2016 from 3pm on Christmas Day to 3pm on Boxing Day and each alternate year thereafter;
(h)On the father’s and the child’s birthday each year for three (3) hours (if a school day) with such time to commence immediately after school if the child is living with the mother on each of those days;
(i)On the father’s and the child’s birthday each year for four (4) hours (if a non-school day) and in default of agreement such time to commence at 10am if the child is living with the mother on each of those days;
(j)From 9am until 5pm on Father’s Day should that day not fall during the father’s time with the child.
That the time as provided for in paragraph 3(a) and (b) of these orders shall be suspended for a period of four (4) calendar months from the date of this order.
That the father’s time with the child shall be suspended during the following periods:-
(a) On Mother’s Day from 9am to 5pm each year;
(b)From 3pm on Christmas Day to 3pm on Boxing Day in 2015 and each alternate year thereafter;
(c)From 3pm on Christmas Eve to 3pm on Christmas Day in 2016 and each alternate year thereafter;
(d)On the mother’s and the child’s birthday each year for three (3) hours (if a school day) commencing immediately after school if the child is spending time with the father on each of those days;
(e)On the mother’s and the child’s birthday each year for four (4) hours (if a non-school day) commencing 10am in default of agreement if the child is spending time with the father on each of those days.
Notwithstanding the foregoing provisions the child shall spend such further and other time with the father upon such terms and conditions as the parties may agree in writing.
That the operation of paragraph 3 (a) shall be suspended during all periods of school holidays.
That the child live with the mother at all other times.
That all handovers that do not occur at the child’s school shall occur as the parties may agree but in default of agreement at the front of Business K in Suburb I.
That the parties shall take all reasonable steps whilst the child is in their care to ensure that the child communicates with the other parent by telephoning the other parent’s landline between 6.30pm and 7.30pm on each Wednesday and Sunday (as applicable).
That the father be restrained from requesting J to engage in communication with him by way of emails, diaries and text messages, mobile phone or skype communication outside of the previous order SAVE that if the child wishes to communicate with the father outside of those times, the mother will not unreasonably refuse him permission to do so.
That the parties ensure that at all times the child is known by his full name being J CHAPMAN-TIMMS.
That the parties do all things necessary to cause the said child to re-engage for counselling and/or therapy with Dr L and that at the direction and discretion of the said practitioner, the parties shall be involved PROVIDED that subject to the consent of the parties to extend the period, the said therapeutic intervention shall be limited to a period of six (6) months from the date of this order and shall be at the joint expense of the parties.
That the parties shall inform the other of any change in residential address or change in landline number not more than fourteen (14) days after any such change.
Each party shall keep the other informed at all times of all significant medical issues affecting the child including any significant injury or medical condition suffered by the child during such time and such periods when the child is in the care of each of them.
The mother shall authorise any medical practitioner upon whom the child may attend from time to time to communicate with the other in respect of the child’s medical condition and/or requirements.
The mother shall authorise all schools at which the child attends to:-
(a)Provide to the father at his expense copies of all school reports, notices and school photographs;
(b)Permit the father to attend all school functions to which parents are normally invited.
Each of the parties are restrained from abusing, denigrating or insulting the other in the presence of the child or allowing anyone else to so do and from discussing the proceedings with or in the presence of the child.
That a copy of these reasons and orders be provided to Dr L.
All previous parenting orders be discharged.
All applications are hereby dismissed and removed from active pending cases list.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chapman & Timms has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: MLC 582 of 2012
| Ms Chapman |
Applicant
And
| Mr Timms |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed in the Family Court of Australia on 27 January 2012, Ms Chapman (“the mother”) sought parenting orders in respect of the child of the relationship J CHAPMAN-TIMMS born in 2003 (“the child”). The father Mr Timms (“the father”) filed a Response on 22 February 2012. In addition to the challenge to the parenting orders sought by the mother, the father also sought orders by way of property settlement pursuant to Section 90SM (1) of the Family Law Act1975 (Cth) (“the Act”).
On 22 November 2013 orders were made by consent resolving property settlement and child support. That order should be considered together with the further order made 22 November 2013 which resolved all outstanding claims against a third party in the proceedings namely “B Pty Ltd”. Accordingly, only parenting issues remained in dispute.
The mother filed an Amended Initiating Application on 27 March 2012 and a Further Amended Initiating Application on 15 March 2013. The final orders sought by the mother in the latter application were significantly more expansive than those previously enunciated in the earlier applications. There was however an underlying consistency in that the mother sought orders that she have the sole parental responsibility for the child and that during school terms the child shall spend time with the father on each alternate weekend from after school on Friday until the commencement of school on Monday. The mother did however propose orders for the child spending time with the father during school holidays.
The father filed an Amended Response on 1 March 2013 and a Further Amended Response on 25 July 2013. There was no effective difference between the parenting orders sought in the Amended Response documents filed by the father. Significantly, the father sought that the parties have equal shared parental responsibility for the child and that there be shared care on the basis that the child would spend each alternate week with the father from after school on Monday until the commencement of school on the following Monday.
At the commencement of the proceedings the mother continued to seek orders essentially in terms as set out in the Further Amended Initiating Application, but there was a minor adjustment to the orders that the mother had previously sought in relation to the arrangements for the child to communicate with his father.
At the commencement of the proceedings the father sought orders as set out in his case outline document. The significant difference was reflected in the father abandoning orders that there be shared care but rather, that the child spend time with him “during all school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Tuesday”. In effect the father now seeks that the child spend four nights a fortnight in his care during school term time, whereas the mother seeks that for the same period the time be three days.
At first instance it appears that the substantive difference between the parties is a dispute as to whether there should be equal shared parental responsibility as sought by the father or sole parental responsibility as sought by the mother and whether during school term time, the child should spend three or four nights with his father. As the trial proceeded it became apparent that the issues between the parties were significantly more complex, that the child presented as a deeply troubled child and it was ultimately not readily apparent that the orders sought by either of the parties would necessarily address the child’s troubling behaviour and determine with any certainty what ultimately would be an appropriate management plan for this deeply troubled child.
Evidence and submissions concluded on 26 March 2014 with judgment reserved. At that time there was no agreement between the parties on virtually any aspect of the arrangements for the child and indeed, the mother’s position was that there should be a suspension of time between the father and the child for six months. Whilst such an order was not sought at the commencement of the proceedings, it appears to be an extrapolation of matters arising from the evidence of Dr L, psychologist, and Ms M, family consultant.
The trial commenced before me on 22 November 2013, with a further hearing on 4 December 2013 in order to deal with the arrangements that were to be in place during the Christmas school holiday period (order of 4 December 2013), with evidence being taken on 24, 25 and 26 March 2014 with judgment reserved.
The mother relied upon the following documents:-
(1)The Further Amended Initiating Application filed 15 February 2013
(2)Trial Affidavit of mother filed 10 July 2013
(3)Trial Affidavit of mother filed 4 September 2013
(4)Setting out orders sought by mother.
The father relied upon the following documents:-
(1)Further Amended Response filed 25 July 2013
(2)Trial Affidavit of father filed 16 August 2013
(3)Document setting out orders sought by the father
Additionally, the Court heard evidence from Dr L following his involvement with the family between 27 March 2013 and 8 October 2013 in terms of an undated report prepared at the joint request of the parties and directed to the following:-
Your treatment of the child of the relationship, [J], the issues confronting the child, and any recommendations you may have regarding the child’s treatment and long term welfare.
Whilst the report is undated, it was clearly published between October 2013 and the commencement of the proceedings on 22 November 2013.
In addition, the Court heard evidence from Ms M, family consultant, in relation to her long involvement in the matter ultimately encapsulated in the reports dated 24 July 2012 and 16 July 2013. An affidavit of Dr L was filed on 8 November 2013 and from Ms M on 20 August 2012 (“the first report”) and 1 August 2013 (“second report”).
APPLICATION OF DIVISION 12A AND SECTION 69ZT
At the commencement of the proceedings I indicated to counsel that I had general regard to the provisions of Division 12A of the Act. In particular, I had regard to the provisions of Section 69ZN namely:-
69ZN (1)
A Court must give effect to the principles in this Section:-
(a)In performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b)In making other decisions about the conduct of child related proceedings. Failure to do so does not invalidate the proceedings or any order made in them.
69ZN (2)
Regard is to be had to the principles in interpreting this Division.
69ZN (3)
The first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
69ZN (4)
The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings.
69ZN (5)
The third principle is that the proceedings are to be conducted in a way that will safeguard:-
(a)The child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b)The parties to the proceedings against family violence.
69ZN (6)
The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote co-operative and child focused parenting by the parties.
69ZN (7)
The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form as possible.
I then considered the applicability of the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”).
In determining whether the provisions of the Evidence Act should apply, I have considered the provisions of Section 69ZT (3) namely, that I must be satisfied that the circumstances are exceptional and that I have had regard to the following matters:-
(i)The importance of the evidence in the proceedings; and
(ii)The nature of the subject matter of the proceedings; and
(iii)The probative value of the evidence; and
(iv)The power of the Court (if any) to adjourn the hearing, to make another order or to give directions in relation to the evidence.
The issue as to whether Section 69ZT should apply and if so to what extent, was raised in relation to three specific objections made by the father’s counsel to various annexures to the mother’s trial affidavit of 4 September 2013 namely, Annexure “SMC3” which is a statement of the maternal grandmother, “SMC6” which is a statement of a friend of the mother and an alleged acquaintance of the father and “SMC7” which is a surveillance report prepared on the instruction of the mother and detailing alleged observed behaviour of the father on a particular date.
Ultimately, the father’s counsel did not press the objection given the appropriate concession by the mother’s counsel in the following terms:-
Your Honour, can I tell you that if it wasn’t for Section 69ZT, I would have real problems justifying it. Your Honour, the case has now turned into one that does have rules of evidence applying to it to one where Section 69ZT applies. We don’t have rules of evidence. I would have to concede your Honour mightn’t give it much weight but it does not make it inadmissible.
I considered that the matters as were able to be foreseen at the commencement of the proceedings did not elevate the matter to a point where it could be said the circumstances were “exceptional” and accordingly, the trial proceeded on the basis that the rules of evidence did not have direct application.
There was however further evidential issues that arose in terms of the details (and transcript) of a telephone conversation that occurred between the father and the child and was the subject of “interception” by the mother.
In a general sense whilst there are allegations made by the mother that the father had engaged in family violence and that the father poses a significant (as distinct to an unacceptable) risk of emotional and psychological damage to the child, I do not consider that the issues are similar to those faced by the Full Court of this Court in Maluka & Maluka (2011) FLC 93-464 where an order was sought that would see the long term termination of the child’s relationship with the father.
BACKGROUND
The father was born in 1964 and is aged 50 years. He is a self-employed healthcare worker and is also involved in the operation of a retail venture with other members of his family. The mother was born in 1967 and is currently aged 47 years. She is a consultant and her business operates through a company known as “P Pty Ltd”. The mother contracts her services to others but in particular a business known as “B Group” and its’ principal “B Pty Ltd”, an entity owned and operated by Mr D.
The involvement of Mr D and his company featured significantly in the property proceedings between the parties. Before the resolution of the claim by the father against B Pty Ltd, they were joined in the proceedings as a third respondent.
It was alleged by the father that the mother met Mr D in or about 2001 and formed a business relationship which ultimately resulted in the transfer of a trademark to B Pty Ltd of the mark known as “C Trademark”. Whilst these were matters the subject of significant dispute in the proceedings, it was demonstrable that the father had developed significant dislike and mistrust of Mr D. It is further alleged by the father that “the applicant developed a very close personal relationship with Mr [D] during the course of our relationship”. To the extent that the father alleges that the mother and Mr D are in an intimate relationship, the mother denies same. She does admit that there is a close business relationship with B Pty Ltd and Mr D but at all times it is professional and any benefit received by the mother is directly referable to professional commercial services rendered by her.
Whilst Mr D does not feature in the residential arrangements referred to by the mother, unfortunately the child has made reference to Mr D in circumstances where the child appears to be aware of the animosity harboured by the father towards that gentleman. The evidence clearly demonstrates that the child has been involved at an inappropriate level in the internecine dispute between the parties and in particular as it involves Mr D. One of the issues for determination is whether the child’s involvement is as a direct result of the father’s overt behaviour or whether it is inadvertent and an unfortunate by-product of the dispute.
The parties commenced their de-facto relationship in 1999 and separated in mid/late 2010. The mother asserts that the parties separated under the one roof in January 2010 with a physical separation on 23 October 2010. However, the father alleges that the mother proposed a trial separation on 13 August 2010.
Following separation the mother and the child remained in the family home at N Street, Suburb O until she moved into her current residence at Q Street, Suburb R in November 2011. Accordingly, the child is familiar with the mother’s current home having been a resident therein for about 2 ½ years and is clearly comfortable in the former family home at N Street, Suburb O.
The parties are in dispute as to who had undertaken the primary care of the child both pre and post-separation. The mother alleges that the father worked long hours away from the home at his healthcare clinic and taking into account its location, has factored in the commuting time. She alleges that when the father was not at his practice he would spend significant time preparing for the retail venture on Fridays and Saturdays. When he wasn’t at work or running the retail venture he would often fall asleep.
The father says that he was heavily involved in the child’s day to day care. He shared the responsibility of dropping off and picking up the child from kindergarten and when the mother was attending to her own professional business affairs, he would be responsible for feeding, bathing and clothing the child.
When the child was enrolled in S School the father would still be involved in taking the child to school on two days a week. The father generally concedes that S School has been of significant advantage and benefit to the child.
In terms of extra-curricular activities, the parties are in dispute as to the degree to which the father supports the child’s attendance at Activity T classes. The mother says that she has taken him to all of his Activity T lessons, pays for the tuition fees and has organised his costumes, clothing and shoes. It is only in 2013 that the mother says the father began to participate in the Activity T classes at all. The mother believes that the father seeks to undermine the child’s continued involvement in this activity. For the father’s part, he concedes that the child does enjoy the Activity T classes. He says however that the child has told him he would wish to try another sport such as soccer. The father alleges that he attempted to discuss this matter with the mother on the basis that the child may need to reduce his time at Activity T classes to accommodate another sport.
The parties have not been able to reach agreement as to the general activities that the child should engage in and they are mistrustful of each other.
It is the mother’s position that she has “been the only constant and pivotal part of his life”. She alleges that she made all of the major decisions about the child and that the father provided little or no assistance in terms of the child’s welfare and in particular in respect of health related matters such as visits to the doctor, dentist, vaccination and the like and indeed, involvement at school. The father does not accept the assertions of the mother but rather would wish the Court to accept that he has been an integral part of the child’s life at all levels. It is the father’s position that the mother and he managed the care of the child in a manner that best suited the circumstances of the family and their commitments as they arose from time to time.
After separation any residual goodwill between the parties soon dissipated.
The parties were not able to communicate effectively with each other. The mother says that the father refused to use a communication book notwithstanding an order made on 5 December 2012. The father says that he decided not to use the communication book because the parties were able to communicate adequately by sms and email communication.
Even were it possible to ascertain who is at fault, the affidavit material, the reports of Dr L, Ms M and the evidence given by the parties together with their demeanour, is highly suggestive of a finding that the parties hold and are likely to continue to hold a deep mistrust of each other.
The mother alleges that during the relationship the father behaved in an aggressive fashion and the child was exposed to family violence.
Whilst the parties were together it is the mother’s position that he would suffer violent and unpredictable mood changes, that he would attack the mother verbally and be abusive and angry, or that he may be sullen and silent. Even at school events post-separation the mother alleges that the father would engage in intimidating behaviour. In short, there is no goodwill between the parties and on the mother’s case any real likelihood that the poor relationship between the parties will improve.
For his part the father denies any family violence and whilst he acknowledges that there were arguments between the parties, he says that it was the mother that would promote these arguments and that they would have according to him “a recurring theme” namely, Mr D, the mother’s former husband and financial matters generally. The father denies that there was ever intimidating behaviour by him either in private or in public.
The father said that he provided appropriate school support for the child and attended during school sports days and other family friendly events. He says that he was appropriately respectful of the mother and it is his position at trial that he would continue to do so.
If the mother has expressed or sustained any fear or anxiety in respect of the father, then this is not as a result of any behaviour by him but rather, it is her behaviour that has been verbally abusive and aggressive.
Whilst a significant issue in these proceedings relates to the child’s behaviour, the father denies that the child has ever been the subject of verbal abuse or aggressive behaviour from him. The fact that the child is clearly troubled in the mother’s household is on the father’s case more to do with the mother’s behaviour and her relationship with the child than his relationship with the child. In his home, the father says that there is no adverse behaviour by the child, nor indeed is there any history of adverse behaviour at school.
The mother sets out in detail some of the child’s distressing behaviour which she attributes to the “emotional pressure” that the father places upon the child and the resultant disruption. These matters are set out in paragraph 37 of the mother’s affidavit filed 10 July 2013, but include the following:-
·That the child will cry for hours and seems angry.
·That when angry and tired he is resistant to his extra-curricular activities even those activities that he enjoys.
·That he is unable to attend to his homework, reading and other tasks.
·That on occasion he has soiled his pants and has threatened self-harm.
·That he exhibits behaviour indicative of a child being forced to choose between the two households and his parents.
·That the child has at times been resistive to attending his father’s home.
·That he is disruptive at school, is disliked and has been the subject of bullying by children and teachers.
·That he has at times expressed a wish to hurt his teachers and is worried about his father’s alleged continual denigration of the mother.
For his part the father strenuously denies that there is any adverse behaviour in his home and his experience of the child is of a child who is calm and who presents quite differently to the alleged observations of the mother.
The mother further complains that the father regularly breaches orders made on 17 December 2012 which regulate the telephone time between the father and the child. The mother alleges that the father requires the child to remain on the phone for a period in excess of the 15 minutes as allowed, but of greater relevance to the evidence given in the course of the trial is an allegation by the mother that the father uses the telephone time as an opportunity to denigrate the mother and to draw the child into the dispute. As will be seen, this allegation of the mother has resonance in a telephone conversation between the father and the child on 2 December 2013 which was the subject of critical evidence in the proceedings.
It is further alleged by the mother that the father has a poor attitude to Court orders as exemplified by the father bringing the child into contact with a prohibited person, namely Mr U who the mother alleges is a convicted drug trafficker and acquaintance of the father. This occurred on 12 February 2013 when the child informed his mother that his father had taken him to a barbeque where Mr U was present. An order was made on 24 February 2012 which restrained the father from allowing the child to come into contact with Mr U.
The father agrees that Mr U was present at the barbeque but he says that the child did not engage with or speak to Mr U and that under no circumstance did the child “socialise” with Mr U.
Whatever the circumstances, the issue only adds to the overwhelming mistrust engendered between the parties.
The mother also is concerned at the practice of the father in taking the child to his retail venture, where the mother alleges that the child “does not seem to be properly or continuously supervised”. The mother suggests that the child should not be undertaking “paid work” nor forced to fend for himself in a crowded public environment whilst his father undertakes paid work.
Whilst the father agrees that from time to time the child does attend the retail venture, the experience is entirely benign and it provides an opportunity for the child to spend time with his extended family including the paternal grandmother and aunt. The father says that the retail venture experience “gives [the child] a sense of our family working together”.
Whilst the issue was perhaps more acute for the mother when the child was nine years of age, he will soon be eleven years of age and the need for rigorous supervision, particularly in familiar circumstances, is unlikely to be so acute. Accordingly, the parties remain enmeshed in the ongoing dispute as to the appropriate care arrangements for the child.
CHILD’S HEALTH
The parties had attended with the child on Dr V in late 2009. His behaviour was aggressive and oppositional. The parties accept the diagnosis of Dr V namely, that the child suffers from “oppositional defiance disorder”. The advice of Dr V was that the child should be living in “a structured environment which included routine such as strict and regular bed times, regular meal times and consistent structures being put in place by both parents”. In addition to the implementation of a structured environment, it appears that certain foods should be excluded from the child’s diet.
At first instance, both parties noticed a significant improvement in the child’s behaviour with the mother attributing this observation to the separation of the parties and therefore by necessary implication, a reduction in the conflict within the household, whereas the father does not attribute any improvement to the parties’ separation but rather to the effort made by each of them to provide a more stable and structured environment.
Each of the parties allegedly put in place their own structured regime when the child was in their separate care but even in this regard, each of them allege that the other is more or less inflexible and the difference and disparity according to the mother is in and of itself a further destabilising factor.
Dr L first consulted with the family on 27 March 2013 following an initial contact by the mother seeking that he provide treatment for the child. Dr L records the major issues raised by each family member as follows:-
[The child]
·Hates his mother
·Describes his mother as evil
·Says his mother lies all the time about [the child] and his father
·Likes spending time with his father
·Wants to live fulltime with his father with no contact with his mother
·Says teachers lie about his behaviour
[The father]
·Wants to spend more time with [the child]
·Said [the child’s] behaviour is not a problem when he is in his care
·Wants to act in [the child’s] interests by addressing the concerns raised by Ms [M] in her 2012 assessment
[The mother]
·Concerned that [the child] lies to her and his teachers
·[The child’s] behaviour is aggressive after he returns from time with [the father]
·[The child] soils his underwear
·[The child] has social problems at school
·[The child] shows aggression and hatred towards women
·[The father] is not adhering to the parenting orders in that he is not properly supervising [the child] (by going to set up the [retail venture] at night), and that he is texting [the child] while he is at school, and that he is not adhering to the agreement regarding timing and duration of phone calls
·[The father] is still emotionally manipulating [the child] by talking to and encouraging [the child] to think about negative attitudes towards her.
Dr L further records:-
Both parents expressed concern for [the child’s] welfare. His mother expressed concern that his father was emotionally manipulating [the child] and that she could best protect him from that by having sole custody of him. His father expressed the opinion that he and [the child] would like more time with each other, and that it was reasonable that an increase in time with him occur.
To place the seriousness of the child’s presentation into stark contrast, it is the somewhat chilling evidence of the family consultant that the child was one of the more disturbed children that she had observed in more than 30 years of her professional life.
ISSUES
The parties are in dispute as to whether on the father’s case there should be an order of equal shared parental responsibility, or whether on the mother’s case she should have the sole parental responsibility.
The mother is prepared to accept that there is a meaningful relationship between the father and the child, but that the father is unable to compartmentalise his anger and significant dislike for the mother to the extent that the child finds himself in a toxic environment. Whilst the child appears to behave appropriately at school and probably with the father, there is no doubt that his behaviour with the mother is appalling. The mother seeks to address the child’s behaviour by seeking orders that would reduce the current time that the child spends with his father from four nights to three nights. In that regard, it is noted that the mother’s initiating application sought orders that the child spend four nights a fortnight with the father (three nights on each alternate weekend and one overnight in the intervening week) in opposition to the orders sought by the father that the child spend week about with each of the parties. Notwithstanding that the mother’s opposition to the orders sought by the father was at a time when the father sought a shared care outcome, nonetheless even with the father resiling from that position, the mother considers that the less time that the child spends in the care of the father the less adverse influence he will exert on the child.
The alarming evidence given by Dr L and in particular Ms M forms the basis for the dramatic orders sought by the mother that all time should be suspended for a significant period (up to six months) in order to provide a “circuit breaker” in the hope that it will restore a proper relationship between the child and his mother without the adverse influence of the father.
Of course the significant risk is as to how this would be perceived by the child in circumstances where I accept the child would wish to spend more time with the father not less and may well not understand the basis for any significant interference and diminution of the current time that he spends with him.
It seems therefore that the overarching issue is appropriately encapsulated in the provisions of Section 60CC (2) namely:-
The primary considerations are:-
(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 mother’s case is that the oppositional behaviour of the child has as its genesis the child’s observations of the father’s behaviour towards the mother when the family was intact and his subsequent inability to promote the mother’s relationship with the child other than in a negative light.
For his part, the father denies the mother’s allegations and relies upon the reasonable evidence that the child does not exhibit the oppositional behaviour at school or in the father’s home. Therefore, the father opines that it is the mother’s dysfunctional relationship with the child that is the root cause of the problem with the child reacting adversely to what he sees as attempts by the mother to restrict and cut back the time that the child spends with the father.
EVIDENCE OF THE PARTIES
The mother was the subject of detailed cross examination by the father’s counsel. It was put to the mother that one of the significant issues that impacts upon parental responsibility was the nature of the communication between the parties. The mother’s case put simply is that the communication has been unsatisfactory and that the father uses the communication book as an opportunity to “make a spiteful and rude remark”.
The eventual production of the communication book (Exhibit 2) demonstrates that the parties had little regard to the maintenance of a communication book as an effective method of communication. The entry of 18 March 2013 appears in the following terms:-
I reject your proposals; and suggest you familiarise yourself with the Court orders.
Thank you [first letter of the father’s given name]
It is this entry that the mother alleges is rude and spiteful. A detailed consideration of the few other entries would not seem to lend any support for the contention of the mother in that regard.
The mother was also cross examined on the exception taken by her to the enrolment by the father of the child at W School. It appears that without any agreement between the parties the father enrolled or put the child’s name down at W School. This matter was the subject of significant cross examination of the father but the mother views the father’s behaviour as clear evidence of his attempt to undermine her to the child. The following appears in the transcript of 22 November 2013:-
Mr Atkinson: So you also take great exception to the fact that my client the father enrolled or put the name of [the child] down at [W School], don’t you.
The mother: Yes I do
Mr Atkinson: The fact is that my client has explained that he just put the name down there as a future opportunity for your son, do you understand that.
The mother: I understand that but I am troubled by how [the child] has responded to what the father has said to him about [W School].
Mr Atkinson: Do you understand that the only thing the father has done, vis-a-vi another school, is to put the name down for some possibility of there being an opening at [W School].
The mother: I disagree with you. That’s not the only thing that he has done with [W School]. He has discussed [W School] with [the child]. He has driven him into the school grounds and he has spoken to [the child] about possibly going to [W School] and that has caused [the child] a lot of despair because he likes [S School] and he doesn’t understand. If he had just put his name on a list and never discussed it just because he was a diligent parent there would be no problem.
The mother was challenged on the orders that she seeks, namely, that she have sole parental responsibility for the child’s care. It was put to the mother that the orders that she seeks are “draconian”. The mother’s response was that she did not consider the description of “draconian” as having any relevance. What was more important was that “[the child] have a possibility to be relieved of having to express hatred towards me to his father”.
There was a concession made by the mother that of recent date the correspondence appeared civil and courteous. I am satisfied whether reasonable or otherwise that the mother views correspondence that appears to be civil and courteous as nonetheless having an underlying hostility and lacking in any genuine sentiment.
Reference was made to the recommendations of Ms M that the parties should engage in therapy in order to assist them in their parenting. The mother’s evidence was that it would be a futile exercise and that she would submit to it only if she was required to do it. In the current circumstances the mother did not think it had any likelihood of any reasonable success, but if there was in her words “a break from requiring (the child) to hate me when he is with his father” then there may be a basis for counselling to be of assistance.
I am satisfied that it is unlikely the mother would attend counselling with any genuine intention to reach an amicable resolution with the father.
The mother was clearly of the view that the parties are unable to reach agreement on major issues. She is prepared to consult and/or properly inform the father, but ultimately if the parties can’t agree then it is her position that a decision must be made, that she is best placed to make it and any decision so made would be “consistent”.
When the mother was faced with a letter written by the father on 31 May 2011 attempting to negotiate further time between the father and the child, the mother disagreed that the contents of the correspondence could be taken as a “conciliatory approach” by the father. Indeed the mother considered that what appeared to be a relatively benign sentiment expressed by the father was in her words “a piece of delusional writing”. Whilst I do not consider that the contents of the letter as read onto the transcript was in any way “delusional”, I am satisfied from the demeanour of the mother that she is genuine in her steadfast refusal to accept that the father is capable of behaving in any way other than in a Machiavellian fashion.
The mother was challenged as to her understanding of the implications of an order seeking sole parental responsibility in respect of the child. The following evidence was given by the mother:-
Mr Atkinson: -Yes. See, you have given earlier evidence that all you want to do is have the final say and have the father know you are having the final say. That’s your evidence isn’t it.
The mother: Yes.
Mr Atkinson: Yes. And so, to put that around another way, you’re saying. “the Court should trust me and the father should trust me that I will do the right thing by consulting with him notwithstanding the orders give me the final say”.
The mother: Yes I do. I am asking that, yes.
Mr Atkinson: That is a big ask is it not.
The mother: I think I am trustworthy and that has been shown throughout every – all of the documents, the way I conduct myself.
Ultimately, proper consideration must be given to the needs of this troubled child and whether his behaviour, development and welfare would be assisted by the parties having an opportunity to work together in a co-operative parenting approach and whether such rapprochement is even likely.
Cross examination focussed on the mother’s application that the time the child would spend with the father during the school term should be reduced to three nights per fortnight as opposed to the father’s application that the child spend four nights per fortnight with him.
The conundrum was put to the mother in the following terms:-
Mr Atkinson: Madam, would you agree that there is the possibility – I don’t know about probability, but the possibility that, if, as you would seek it, the current time under the orders that have been running now for – what is it today, for nearly a year – if they are cut back, there is a possibility that, in fact, this child who expresses resentment or hate to use your word, might have even stronger resentment.
The mother: Well the way I view it, it is 100 per cent resentment already so it can’t get any worse than what I am experiencing.
The following was then put to the mother:-
Mr Atkinson: Madam, would you not think that this little boy is going to resent less time with his father.
The mother: No. I think he would be relieved of having to appear to his father and those around him that he hates me and the people around me.
The evidence of the mother clearly confirms a level of desperation on her part as to a proper way forward and the difficulty is encapsulated in the situation where the father concedes that the mother should have the primary care of the child, but the father seeks to undermine the child’s relationship with her.
Leave was sought and given to re-open the mother’s case to enable her to give evidence on a dispute between the parties as to a request by the mother that the father return to her a memory book relating to the child’s Year 2 experiences. This issue was the subject of a previous order and the mother’s evidence is that what the father returned to her was a crèche book which had been prepared by the child’s carers when the child was 16 months of age. The assertion of the mother is that the father knew that the memory book was special to the mother and that the father has deliberately withheld the book because he knew of its’ special significance to her. On the mother’s case, it is a further example of the extent to which the father will go in order to undermine the relationship that the mother has with the child but also to be pointedly malicious.
As part of the same order, the mother had an obligation to provide a USB stick to the father which contained certain photographs. Whilst the father alleges that the stick had not been provided, it is the mother’s evidence that it was provided to the father on 21 January 2014 and that it was sent by registered post. The mother’s evidence is that notwithstanding what appeared at that stage to be a complaint by the father in relation to the delivery of the USB stick it was within the capacity of the father to track the delivery of the USB stick which would show that it had probably been provided pursuant to the order.
This evidence, whilst seemingly of little moment, assumed some importance during the cross examination of the father.
The mother was referred to correspondence passing between her solicitors and the father’s solicitors dated 10 March 2013 (Exhibit 3). The letter sought that the father authorise the mother to speak to Dr L regarding “[the child’s] recent emotional crises”. The letter refers to the child soiling himself, crying at school and experiencing what the mother says is “a very difficult and emotional time for which our client believes he may need specialist intervention”.
Under cross examination the mother agreed that in relation to the emotional crises as alleged by her, she had discussions with the school which included the junior school principal and members of the Wellness Committee. The mother did not speak to the child’s class teacher but in response to Exhibit 3 the father then apparently wrote to the school principal requesting confirmation that the child had been soiling at school, was in a state of crisis and was exhibiting difficult behaviour. The response from the school principal was that at school the child was happy and is “having an enjoyable time”.
The mother was shown the school report of 12 December 2013 and whilst she agreed that the comments were generally positive ie a good report for the child, the mother was unable to concede that the father’s involvement had any beneficial effect on the child at all.
Clearly, there is an almost total inability of the mother to accept any communication from the father as being benign or as a genuine attempt to either reconcile his differences with the mother or to provide proper and child focused assistance to the child. The mother has a deep-seated mistrust of the father and I accept that she genuinely believes the father has embarked upon a course of conduct designed to maximise the disruption to the relationship that she has with the child.
The mother was reluctant to make any concession that the father’s continuing involvement with the child was to any good effect.
FATHER
The father was asked to confirm his position namely, that the child should live with the mother for ten nights a fortnight and with the father for the balance being four nights. The father agreed that he considered the mother to be an abusive parent and that he was concerned about what was happening in the mother’s home.
The father did not resile from the remarks made in paragraph 69 of his affidavit filed 16 August 2013 in the following terms:-
[69]I have concerns about what [the child] has said to [Ms M] regarding his mother. In the recent family report she states that [the child] claims… “Mum lies a lot” (paragraph 22). [Ms M] also states that “[the child] says that she lies to people including Dr [L] ([the child’s psychologist)”. [The child] continues to say…”She is one of those people who is a bit tricky… she thinks she won’t get caught lying…she is nice in front of others” and continues to say…”Even my grandmother (maternal) is a mean person”. (paragraph 24). I am extremely concerned as to what [the child] might be exposed to by his mother. [The child] has told me that his mother yells at him and that he is scared of her. He has told me that his mother tells him that I am going to take [the child] away from his mother. [The child] has also said to me that he should not listen to me and not be “brainwashed by my family”.
To further reinforce the dichotomy, it was put to the father that notwithstanding the allegations that the mother is abusive of the child, is a liar, is a fabricator and that the child is scared of her, why then offer her the primary care.
The father was not able to cogently or clearly explain his position. The problem was further compounded by the father’s ready agreement that he did not say anything favourable about the mother in his affidavit and that he considers her primary goal is to control the child reflecting her anxiety (my words).
It appears that the father seeks to rely upon the perceived recommendations of the experts that the child should live in the primary care of the mother notwithstanding his clear misgivings.
Put simply, taking into account any recommendations to the contrary, if the father’s concerns about the mother’s ability to care for the child are to be taken at face value then it is difficult to find any consistency in his approach.
I was not impressed with the father’s evidence on this topic and consider that his late concession that the mother was a “good mother” to be entirely disingenuous.
Notwithstanding the clear opportunity to do so during his cross examination, the father was not able to explain the basis for the orders that he sought.
Paragraph 47 of the report of the family consultant was put to the father in the following terms:-
[47]As alleged by [the mother], it may be that [the father] is a manipulative and malicious parent whose own need to have [the child] live with him colours his behaviour and blinds him to [the child’s] needs. If this is found to be the case, then it is clear that his time with [the child] needs to be severely restricted as the risk to [the child’s] psychological welfare will be significant and his relationship with him would be damaging. Similarly if [the mother’s] parenting is as abusive as is suggested, [the child’s] time with his mother also needs to be reconsidered.
Further, the report provides the further following view:-
[60]The mother’s application for sole parental responsibility needs to be determined by the finding of evidence before the Courts. If [the father] has been undermining and manipulative as alleged, it may be that sole parental responsibility will be necessary to ensure that one parent can make decisions for [the child] in a timely manner. [The child] cannot be exposed to the conflict that surrounds decision making. To date, the parents have not displayed any significant capacity for effective decision making.
The father accepts the proposition that if this Court finds that he has indeed been manipulative and that his behaviour has been designed to deliberately undermine the relationship between the child and the mother, then it would be proper for his time with the child to be reduced.
It was put to the father that over the two years since separation he had undertaken a campaign of seeking to undermine the child’s relationship with his mother. The father denied the general proposition and was then challenged as to whether he had ever asked the child whether the mother had been mean to him and whether he had discussed with the child keeping secrets from the mother. The father’s position was of general denial and it was then put to him that he had engaged in a telephone conversation with the child on 2 December 2013 being a date some nine or ten days after the last substantive hearing.
Ultimately, the father agreed that a telephone conversation with the child had occurred on this date. There was an initial objection by the father’s counsel as to the circumstances in which the call had been taped or recorded and whether in the circumstances a transcript that had apparently been made by the mother of the telephone conversation between the father and the child was accurate.
Ultimately, I stood the matter down to enable the father and his legal advisors to consider firstly, the accuracy of the transcript proffered on behalf of the mother and then, whether there would be any objection as to its admissability.
At the resumption of the proceedings I advised counsel that my preliminary view is that the Court is obliged to consider the provision of the Telecommunications (Interception) Act 1979 (Cth) and it is only if the Commonwealth law does not apply that the relevant State Act could be considered. The effect of a prohibition as may be determined by the provisions of the Telecommunications Act is that the evidence could be excluded under Section 138 (1) of the Evidence Act 1995 (Cth). Whilst the argument did not venture into the precise mechanics of the interception, it is likely that the interception came about as a result of the inherent capacity of the phone that was used. If that is the case and there was no effective interference with the communication equipment, then it is likely that the relevant Act does not apply. Consideration does then not need to extend to the provisions of Section 138 (1) of the Evidence Act. In any event, Section 138 provides the Court with a discretion to admit evidence that would otherwise be excluded if in doing so the evidence “outweighs the undesirability of admitting the evidence that had been obtained in the way in which the evidence was obtained”.
Ultimately, the point was not taken or pursued by the mother’s counsel and to the extent that there were portions of the transcript of the conversation read to the father absent any objection, I accept that they accurately record that which transpired between the father and the child in the telephone conversation of 2 December 2013.
The father agreed that he said to the child the following:-
She (the mother) is still being mean to you.
He had no ready explanation as to why he would raise the topic of meanness in circumstances where it had not been raised by the child. The father acknowledged that at the time of this conversation he was still upset about the property proceedings and agreed that he had asked the opinion of the child as to what he thought of Mr D. When he was questioned as to why he would raise the topic of Mr D with the child, the father generally agreed that he still harboured significant upset towards that gentleman. The father did not think that the discussion of Mr D with the child was capable of undermining the relationship between the mother and the child.
Eventually following a proposition put by me namely, that the personal view of Mr D held by the father was not a matter that should have been discussed with the child, the father properly agreed that the child should not have been asked to comment and/or proffer any view or opinion of the mother, Mr D or their relationship.
Somewhat alarmingly, the father conceded that he had a conversation with the child about who might be their enemy. The father enquired of the child whether he knew who the enemy was and the child responded that he did.
The father was then questioned as to who the enemy was and he indicated that it was Mr D. Whilst it is entirely inappropriate that there should have been any conversation referring to Mr D in terms of him being an enemy of either the father and in particular the child, a more sinister connotation was put to the father that indeed it was not Mr D who should be seen as the enemy but rather the mother. There is no mention in the transcript of Mr D by name. There was clearly no benefit in talking to the child about Mr D and ultimately the father was forced to concede that the conversation with the child was clearly inappropriate. The father was further questioned on whether he had ever told the child to keep a secret. The transcript of the telephone conversation refers to a reference by the father to a Christmas party that the father was arranging. The transcript specifically directs the child not to tell anybody about it unless he absolutely wants to do so.
There is no good reason for the child not to disclose to his mother, friends or associates that he is to attend a Christmas party.
The telephone conversation at all levels was clearly inappropriate in the sense that it demonstrates the father’s preparedness to engage with the child in the dispute between he and the mother, if the father is to be believed his concerns in respect of Mr D and his general preparedness to promote in the child’s mind that that it is acceptable to the father to speak of the mother in derogatory and disrespectful terminology.
Paragraph 11 of the report of Ms M was put to the father:-
Central to her concerns is [the father’s] manipulations of [the child] so that [the child] feels unable to love and accept both parents. She alleges that the father uses manipulative and surreptitious behaviours to enlist [the child] into his world, creates a sense of secrecy around which [the child] has to keep his mother excluded. By way of example, she says [the child] gives his father a “hidden wave” when he is with her and contends that it is learned behaviour from the father – “[the child] mimics him”; she insists that she openly and consistently allows [the child] to communicate freely with his father and to acknowledge him when she sees him. She reports that she tries to be pleasant and acknowledge [the father] when they meet, but he looks away. She is worried by [the child’s] comments to the effect that “Daddy needs me to hate you”.
Against the context of the child’s words and taking into account the concession by the father that he accepted that the child had expressed that sentiment, the obvious question is whether it could have been in any way acceptable for the father to have had the conversation that he did with the child on 2 December 2013. In particular, the mention of the child being aware of the father’s enemy and the father being aware of the child’s enemy is audaciously startling. In his response to the questions put to him on the topic, the father at least conceded that there was an unanimity of feeling between he and the child as to their attitude to Mr D. Again, the more damaging interpretation may be that the point of reference by father and son was not Mr D but rather, the mother.
When pressed, the father agreed that the conversation and the manner in which the issue was raised was inappropriate and unhelpful in the circumstances of the child’s fractious relationship with his mother.
The father was asked to explain his actions in taking the child for a drive through the grounds of W School. The father attempted to explain the visit on the basis that the child had expressed curiosity as to the school grounds on previous occasions. Subsequent to the visit, the father enrolled the child in W School together with two other private schools. Whilst a simple enrolment might be considered a benign act, the father conceded that the various enrolments were not disclosed to the mother. The obvious question was put to the father namely, how did he expect that the matter could possibly be advanced in circumstances where the enrolment was a unilateral action on his part.
I do not consider that the behaviour of the father was benign and have formed the view that his evidence on the topic was evasive, defensive and inherently unreliable. Unfortunately, the father’s behaviour was at the very least likely to be disruptive of the child in terms of his current schooling and was not likely to present a picture to the child of his parents being united in their desire and ability to make proper and informed decisions about his future care and education.
The father was also challenged as to the circumstances in which the child was brought into contact with Mr U at a barbeque. Whilst the father was aware of the order and most certainly the basis for the order having been made, namely that Mr U was a convicted drug dealer and unlikely to be a person who was in anyway advantageous to the child, the father’s explanation is that he was not sure if the order had been discharged. I find the father’s excuse and explanation to be nonsensical and even if it was a genuine mistake then it indicates a significant lack of insight.
The evidence of the father was concluded with a revisiting of the complaint by the father that the mother had not provided the memory stick as ordered and the allegation of the mother that the father was deliberately not providing the Year 2 memory books.
To the extent that the father has made any complaint at all in respect of the mother not providing the memory stick, I find that the mother has done all that could reasonably be undertaken to ensure that the memory stick was delivered to the father. It is clear that the father has done little or nothing to ascertain the whereabouts of the memory stick and it is accordingly mystifying why he would continue to make a complaint in circumstances where the preponderance of the evidence would suggest that either the memory stick is in the possession of the father and he is not disclosing it or it has been lost in transit but in circumstances where the father must have known that it could not have been at the fault of the mother. It is a fair inference that the father is not telling the truth on this topic and that he has had at all material times retained the memory stick in his possession.
I also do not accept that the father is not able to find the memory books. If that was the case then the father could easily have made that circumstance known to the mother. Instead the father went through the fiction of delivering books that the father knew were not the ordered items and his attempt to get the school to sign a document confirming that the memory books were being delivered when demonstrably that was not the case is clearly disingenuous.
At the conclusion of the father’s evidence I do not consider him to be a reliable witness and have formed the view that his actions were motivated by a desire to cause hurt and distress to the mother in circumstances where he was completely unconcerned as to the child’s behaviour towards her. If the father did not actively encourage the child to adopt a highly conflicted and oppositional attitude to the mother then he certainly did nothing to lessen or ameliorate that behaviour.
I am more inclined to the view that the father encouraged the child’s adverse behaviour in circumstances where there is no evidence that it was significantly discouraged by the father.
DR L
At the joint request of the parties a report was prepared by Dr L in respect of the treatment of the child, the issues confronting him and any recommendations as to the child’s treatment and long-term welfare. Dr L had the advantage of the reports of Ms M and some of the affidavit material, principally that of the mother filed in July and September 2013.
Dr L accepts that the child has been diagnosed as suffering from Oppositional Defiance Disorder and that one of its manifestations is that the child behaves aggressively but also soils himself.
As has already been recited, the major issues as raised by each of the family members are striking, in particular the perceptions of the child about his mother, the father and significant third parties such as teachers. Dr L recorded the following observations:-
On the occasions when [the child] presented with his mother he was often angry towards her. He would state that many of the comments she made about him were lies. She would also challenge him about the truthfulness of his version of events. He would state that she made up scenarios regarding his bad behaviour, that she lied about times when they were getting on well together. His version of events was that there was almost any good interaction between himself and his mother.
However, [the child’s] actual behaviour towards his mother did not reflect such a negative relationship. He complied with her requests of him, he was generally polite towards her, he generally appeared happy when he arrived for each consultation, and happy to be leaving with the mother at the completion of each consultation.
On the occasions when [the child] presented with his father he was happy to be with him. He reported no problems in the interaction between himself and his father. When the consultation moved to discussion of his mother he would describe her as evil, state that she was a liar and that he hated her. On a number of occasions he said that he did not want to spend any time with her.
Mr L formed the clear view that the child’s description of his mother as “evil” was not genuinely held in circumstances where the mother had provided an appropriate loving and happy environment. In short without outside influence, there was nothing about the domestic arrangements within the mother’s home which would engender such strength of feeling.
The strength of feeling by the child towards the mother was noted by Dr L to be so extreme that he considered that it must be encouraged by an outside influence. The concern was that if there was any significant reduction in the time that the child spent with the mother this could result in permanent damage to their relationship.
The recommendations of Dr L is that notwithstanding the child’s desire to spend more time with the father this may well fuel the entrenched bias by the child against her.
Under cross examination, Dr L confirmed that some form of alienation had clearly occurred and was more certain in his evidence than in his report that it was the father’s manipulation of the child that was the catalyst. In summary, unless the father’s behaviour ceased his time with the child should be curtailed.
It was adverse to the child’s interest that there should be any promotion of secrets between the father and the child and he agreed that if the text and tenor of the telephone conversation of 2 December 2013 between the father and the child was accurate, then this was manipulative and significantly damaging to the child’s development and emotional stability.
Dr L agreed that the conduct of the father could be considered manipulative but that the real mischief was that if it was allowed to continue it could result in the complete alienation between the child and his mother. Whilst some regard needs to be had to what Dr L described as a “balancing act” namely, to overly restrict the time that the child spends with the father may be counter-productive, he conceded that the real issue is alienation and by necessary implication this needs to be a primary focus.
Under cross examination by the mother’s counsel that the clear answer is for the parties to undergo counselling ultimately involving the child to better equip them to deal with the child’s needs and to enable the child to see that his parents have a united approach.
Dr L observed that the child’s presentation was to be explained not by a few defensive comments, but rather there was something significantly deep-seated in the child’s presentation that causes him to act in the oppositional and defiant manner that he does. He records the child’s view of his mother as follows:-
He reported no problems in the interaction between himself and his father. When the consultation moved to discussion of his mother he would describe her as evil, and state that she was a liar and that he hated her. On a number of occasions he said he did not want to spend any time with her.
Mr L formed the clear view that the child’s description of his mother as “evil” was not genuinely held. In circumstances where the mother had provided an appropriate loving, happy environment. In short, without outside influence there was nothing about the domestic arrangements within the mother’s home which would engender such a strength of feeling.
The strength of feeling by the child towards the mother was noted by Dr L and it was so extreme that he considered it must be encouraged by an outside influence. The concern was that if there was any significant reduction in the time that the child spent with the mother, this could result in permanent damage to the relationship.
The recommendations of Dr L is that notwithstanding the child’s desire to spend more time with the father, this may well fuel the entrenched bias by the child against her.
Under cross examination, Dr L confirmed that some form of alienation had clearly occurred and was more certain in his evidence than in his report that it was the father’s manipulation of the child that was the catalyst. In summary, unless the father’s behaviour ceased his time with the child should be curtailed.
It was adverse to the child’s interests that there should be any promotion of secrets between the father and the child and he agreed that if the text and tenor of the telephone conversation of 2 December 2013 between the father and the child was accurate, then this was manipulative and significantly damaging to the child’s development and emotional stability.
The difficulty is that there is no area where the parties are able to reach common ground and the mystery remains as to why the father would be supporting orders that clearly are contrary to his view of the mother other than in circumstances where he accepts the recommendations of the experts that it would be beneficial for the child and in doing so accepts the underlying cause namely, that the child is responding to the father’s manipulative conduct.
Ms M – FAMILY CONSULTANT
The family consultant has prepared two reports dated 24 July 2012 and 16 July 2013.
It is chilling to note that the evidence of the family consultant must be considered against the backdrop of her assessment that the child is one of the more disturbed children that she has been involved with in more than 30 years of professional practice. She considers that the child displays behaviour that is at the extreme end of the scale. That overall assessment by the family consultant was not challenged by either counsel.
The first report (and the second) were predicated on the parameters of the original dispute namely, that the father sought equal time whereas the mother proposed that the child spend four days a fortnight with the father.
The history given to the family consultant as recorded in the first report is not dissimilar to that as contained in the parties’ separate affidavits. Each of the parties allege manipulative behaviour by the other and it is recorded that the mother considers there has been significant improvement in the child’s behaviour since separation and in particular “that the symptoms of ODD of which he has been diagnosed, virtually disappeared”.
The mother reports however that when the child returns from extended time with the father his behaviour has regressed and the personal attacks resume with the child apparently parroting the complaints of the father.
The mother considered that at the time the current arrangement (four nights a fortnight) was working well and the child appeared to be settled with “significant gains noticed by his teacher and herself both behaviourally and in the classroom”.
Neither party impressed the family consultant with their ability to communicate cooperatively or at all with the other and the mother remains concerned at the child’s unsettled and angry behaviour exhibited from time to time.
The assessment of the family consultant after speaking to the child is that he is very much aware of the conflict and that he is “stuck in the middle…when they are fighting”.
The child reports that he wants to be on his father’s side and considers his father to be more calm than his mother. The clear impression gained by the family consultant is that the child is significantly more concerned about the father’s feelings than those of the mother.
At paragraph 25 of the first report the following is recorded:-
It would appear that [the father] has spoken to [the child] about attending [W School] and [the child] volunteered that “I do want to change schools” complaining that a “kid punches me” and hence he wants to leave [S School]. This is also surprising that the school staff report that he is socialises well at school, has a good group of friends, there are no problems with the other children and generally, he is progressing well. He plays equally well with both boys and girls. There appears to be some resonance in these earlier remarks by [the child] in terms of the father’s evidence of interaction between he and [the child] on the grounds of [W School].
Notwithstanding the polarised views as expressed by the child, the observation of the family consultant is that the child appeared to enjoy “a happy and enjoyable time with both parents”. There was demonstrable affection between the child and his parents when separately observed.
The family consultant brought into account information provided from Dr V who had been involved in the professional management of the child’s behavioural and emotional issues, Mr X and Ms Y being the principal and class teacher of S School respectively.
It seems from the reference to a fictional person called “AB”, (a common abbreviation for Mr D’s given name), who allegedly attends his mother’s home and in respect of whom the child is fearful that significant imagination and fantasy has crept into the child’s presentation. The family consultant considered that the child had created a reality that does not exist. The child was found to be lying and was significantly embarrassed by the lie having been disclosed.
The more disturbing aspect of the child’s presentation is that the child attributed the fear of “AB” as an example of the mother’s inability to protect him. Whether this reference is to Mr D or completely fictitious is not known.
At paragraph 37 the family consultant reports:-
The writer believes that [the father] is having conversations with [the child] which place pressure on [the child] to support and go along with his father’s wishes. [The child’s] comment about changing school and attending [W School] is one example as is [the child’s] view that his father wants him to live with him. Of concern is [the child] attributing predominantly negative comments to his mother and predominantly positive comments to his father in a deliberate attempt to side with him. Of greater concern, is [the child] changing his reality to support his father and what he perceives is expected of him. The stories that he has relayed to Dr [V] and the writer are more than a child with a fantasy but deliberately designed to depict problems in his mother’s household and possibly give weight to his wish to live with his father and prove his loyalty. It may also be that he is inventing tales to accommodate his father’s reality.
The family consultant reported in the second report that there had been no effective improvement in the somewhat disastrous circumstances that engulf this family.
At paragraph 22 the following is reported:-
Without prompting, [the child] volunteered “Mum lies a lot” and that he wants to be with his father 24/7. He delivered what seemed to be a well-rehearsed list of complaints about his mother including “she is mean to me…she yells at me all the time”. He tried to convince me that his mother was unfairly and severely punitive; that minor misdemeanours were not tolerated by her and in fact he feels harshly disciplined by her; and while his mother was the epitome of the bad parent, his father on the other hand was the epitome of the good and caring parent.
The family consultant found that the child was strongly aligned to the father and had difficulty in elucidating any positive comment about his mother.
The child clearly considers that his mother was the cause of the family breakdown and he reports to the family consultant that “it’s all her fault”. She records that he was overwhelmed by his own anger. He is troubled by his memories and in particular his father’s distress. When his father would cry so would he.
It is recorded that the child has demonised his mother whom he is unable to make any positive comment although his interaction with her suggests nothing other than a close, warm and loving relationship. He perceives his father as a victim who needs to be protected, but also as the “all good, all loving parent who can do no wrong”.
Predictably, the family consultant finds that the parental conflict is “a toxic environment” for the child and whilst it is ultimately a matter for me to determine whether the mother’s allegation that the father is manipulative and malicious is made out or whether the father’s allegation that the mother is controlling of the child to an obsessive level has any foundation, the real issue is the finding by the family consultant that the child “is clearly not an emotionally or psychologically robust boy”.
It is a further concern to the family consultant that the parties demonstrate little or no capacity to reach any agreement in respect of parenting issues and that the Court may well need to make orders that protect the child from the conflict between the parties.
In giving her evidence, the family consultant considered that the child was reacting to the emotional despair of the father.
The family consultant agreed with the proposition of Dr L that alienation between the child and his mother is more significant than a reduction. In summary, the long term welfare of the child is the more important consideration, but that does not mean that there will not be the potential for adverse reaction by the child in respect of any reduction in time. It is simply not known whether the child’s perception of such a reaction may not exacerbate the alienation that is already the subject of foment.
Ultimately, it was the view of the family consultant that there needed to be some dramatic action which it is hoped would in effect “reset” the relationship between the child and the mother. This could be achieved by a severe reduction in time spent between the father and the child over a limited period as a therapeutic step rather than being punitive.
The relationship between the child and the parties needs to be maintained, but the child needs to have the freedom to interact with his mother without experiencing the pressure of his father’s emotional despair.
THE LAW
Issues and Considerations
The mother seeks sole parental responsibility, whereas the father seeks that the parties have equal shared parental responsibility.
It is the contention of the mother that the presumption of equal shared parental responsibility as provided for in Section 61DA of the Act does not apply (Section 61DA (2)) or that the presumption may be rebutted (Section 61DA (4)).
Accordingly, having regard to the statutory obligations I propose to adopt the following approach namely:-
(1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court.
(2)Have regard to the objects expressed in Section 60B (1) and the underlying principles in Section 60B (2) having regard to the provisions of Section 60CC in order to determine what is in the child’s best interests.
(3)Have regard to the primary considerations under Section 60CC (2) and (2A) namely, the benefits to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm.
The additional considerations are set out in Section 60CC (3):-
(4)The evidence adduced by each of the parties in respect of the particular considerations pursuant to Section 60CC (2) and (3) are to be considered and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.
(5)Section 61DA requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard to the matters as set out in Section 61DA (2) which would rebut the presumption if a person or person living with a child has engaged in:-
(a)abuse of the child or another child, (who at the time was a member of the parents family), (or that the other person’s family); or
(b)family violence.
(6)Section 61DA (4) provides that the presumption may be rebutted by evidence that satisfies the Court 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.
Section 60CC is to be utilised in order to determine the question about best interests and the issue of whether an order for substantial and significant time would be reasonably practicable is to be determined by reference to the provisions of Section 65DA (5). There will of necessity be some overlap in terms of assessing whether a proposed order is reasonably practicable and in that regard the decision of MRR v GR (2010) 240 CLR 461at 467 is of assistance:-
Section 65DA (1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in Section 61DA (1) is not determinative of the questions arising under Section 65DAA (1). Section 65DAA (1) (b) requires a practical assessment of whether equal time parenting is feasible.
In the current circumstances the issues are no longer reflective of a contest between orders sought by one party that there be equal time and the opposition to such an application. The reality of the current circumstances is that the mother seeks that the father spend three nights a fortnight during school term with the child, whereas the father seeks a retention of the effect of the current orders namely, four nights. There is however still a difference between the parties as to the time that should be spent between the father and the child during the extended Christmas school holiday break.
Considerations pursuant to Section 60CC (2) (a)
I consider that it is important for the child to maintain a meaningful relationship with his parents. There remains significant and perhaps even dramatic inter-parental conflict and whilst I find that the father has engaged in significant behaviour which was either designed to undermine the relationship between the child and the mother or at the very least has had that effect, there is considerable potential benefit to the child maintaining a relationship with the father. Neither party has demonstrated any goodwill towards the other, but in particular the conflict has embroiled the child to an extent where his perceptions of reality may well be distorted because of his desire to align with his father’s emotional distress.
Whilst the mother alleges physical and aggressive behaviour by the father, I do not consider that the evidence in any way supports such a contention. There is however more substance in the allegations of the mother that the child should be protected from the psychological harm perpetrated by the father’s manipulative behaviour as is the subject of comment and opinion by Dr L and Ms M.
The family consultant recognises the strong bond and relationship between the father and the child and there is clear tension between the need to protect the child from psychological harm but also to promote a meaningful relationship between the child and both of the parents. Indeed it is recognised that if there is a significant impact in the long term upon the time the child would spend with the father, this may well have an adverse consequence and result in an exacerbation of the alienation that the child has in respect of his mother.
In Mazorski & Albright (2007) 37 Fam LR 518, Brown J commented on the definition of “meaningful” and said:-
What these definitions convey is that meaningful when used in the context of a meaningful relationship is synonymous with “significant” which in turn is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the applications of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equal shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court said at paragraph 119:-
We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in Section 60CC (2) (a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that Section 60CC (3) (b) requires a Court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a Court making appropriate orders in circumstances where significant relationship has not been established between a child and a parent at the date of trial.
Accordingly, I am obliged to consider orders that in all the circumstances are in the best interests of the child and I must have regard to the opportunity that may exist for a meaningful relationship to be developed and fostered between the parties, in this case demonstrably between the child and the mother. That is the relationship which is potentially at risk of alienation and I find that the observations of Dr L and Ms M that when the child feels free of the pressures of the dispute and his desire to support his father, the relationship between the child and the mother appears loving and well bonded, compelling.
It is also important that the child’s school reports that he has a happy and enjoyable time, is doing well and has good peer relationships with other students. His time at school appears to be happy and there is not the obvious distress and anxiety exhibited by the child when having to negotiate the emotional minefield of his parent’s dispute. School can be seen as a safe haven for the child and this provides a credible explanation for the positive school report.
Section 60CC (2) (b)
I have already commented on the mother’s allegations that the father seeks to undermine her relationship with the child. Where the mother’s evidence conflicts with that of the father I prefer her evidence. I am satisfied that at least to some degree the father has engaged in manipulative and potentially destructive behaviour in terms of the mother’s relationship with the child. In any event, the father concedes that the mother should have the primary care of the child. That very concession suggests that the father accepts that the relationship between the mother and the child must be maintained, promoted and fostered and in the current circumstances there is a confluence of interests. If the child can be removed from the psychological harm as may be being perpetrated by the father (or indeed the father’s tacit approval of the child’s behaviour), then this will have the potential to bolster the apparently fractured relationship that the child has with his mother.
Section 60CC (3) (a)
There is significant evidence from the parties, but in particular Dr L and Ms M as to the view expressed by the child. The child functions at a high level and in the ordinary course whilst not determinative, significant weight should be given to the views expressed by a child nearing 11 years of age.
The child has expressed a clear view that he would want to spend more of his time with his father than the mother. The difficulty is that the child’s reality is unfortunately distorted. Ms M and Dr L comment that at times the child’s presentation has been unreliable and he has simply not told the truth. The child is clearly highly disturbed and his views are coloured by his overt reaction to the conflict between the parties and his perception that his father needs his support.
In this case, the child’s views are important if for no other reason than they highlight the distorted reality in which the child exists. There must however be a balance and I am mindful that even absent the child’s protective conduct towards his father, nonetheless they are strongly bonded and whilst I place little weight on the child’s desire to live with his father, I am satisfied that orders should be made that would not permanently disrupt the time that the child and his father spend together.
Section 60CC (3) (b) and (c)
The child has a difficult and at times highly conflicted relationship with his mother. She complains that at times the child is abusive towards her, refers to her as an evil person and that he hates her. That is his public position. However, when the child is observed with the mother absent the parental stressors imposed upon the child by the parents, the relationship is demonstrably better. The father concedes the primary care should be with the mother. That is the reality of the position. The orders that the mother seeks are not designed to damage or diminish the relationship between the child and the father, but to address if possible the aspects of that relationship which appear to impact adversely on the child and are then reflected in his conduct when in the presence of the mother.
The parties have little demonstrated ability to work co-operatively or at all with each other and even what appears to be civil communication between them still engenders deep mistrust. I have found that the father has engaged in conduct which is manipulative and likely to be damaging to the relationship between the child and his mother. I am not satisfied that the father has gained any insight into his conduct but equally, the mother is at a stage where she is not able to see any good in the father’s relationship with the child. These issues will become more acute in the years to come as the child matures and gradually takes more responsibility for the decisions that he will make. At best, what can be achieved at this stage is to put in place orders that will re-establish and reset the relationship between the mother and the child and attempt to remove as far as is reasonable those areas of potential conflict between the parties into which the child may be unwittingly enmeshed.
Given my finding that the father is not supportive of the relationship between the child and his mother and taking into account the deep-seated mistrust that the mother has for the father, a balance must be achieved between the continuation of relationships between the child and each of his parents but to balance the need to protect the child from the psychological harm caused to the child that results from the ongoing conflict.
Section 60CC (3) (ca)
Generally speaking the parties has properly fulfilled their respective obligations to maintain the child. His behaviour at S School appears to be without significant complaint (notwithstanding the allegations of the mother which would appear to be without foundation). The parties have extended family and a rich cultural and diverse heritage. Each of them have much to offer the child in terms of his future development and if the parties are able to set aside their mistrust of the other there is the prospect that the child may well have turned a corner in terms of his adverse and oppositional behaviour.
Section 60CC (3) (d) and (e)
At first consideration there is not a significant difference between the parties in terms of the arrangements affecting the child. The mother obviously seeks sole parental responsibility, whereas the father pursues equal shared parental responsibility. To the extent that such a determination goes to the major issues that affect the child, they are likely to have less impact on the child than any immediate change to the day to day arrangements.
The mother seeks that there be a suspension of any order for time between the father and the child for a period up to six months and then upon the resumption of time, it be reduced from four nights to three nights.
There is also a difference in terms of the extent to which the child will spend time with his father over the Christmas holiday period. To some extent that issue has been ameliorated by orders made for the 2013/2014 Christmas holiday period.
It may be the case that the parties and the child will need to attend appropriate counselling and therapy for the child, but in a general sense I draw a distinction in terms of the evidence given in particular by Ms M that consideration should be given to a dramatic adjustment to the arrangements in the short term, but ensuring that the long term arrangements make proper provision for the child to spend time with his father.
Section 60CC (3) (f)
Properly motivated, I consider that each of the parties have the ability to provide appropriately for the child. The mother’s ongoing care of the child has been exemplary, but she clearly does not have the necessary skills to counteract the effects of the father’s actions. Notwithstanding the father’s evidence, I have found that he is not dedicated to promoting the relationship between the mother and the child and the impact upon the child as expressed by Dr L and Ms M has been devastating.
The over-arching concern of the experts is that the child finds himself on a pathway leading to the alienation of the relationship with his mother which is an unacceptable outcome.
It may be the case that the father has developed a level of insight that has hitherto been absent from his presentation. His position is that the extent of his insight is the explanation for the concessions he makes in terms of the time that the child should spend with the mother notwithstanding his serious misgivings about her personal qualities.
Section 60CC (3) (g) (h) (i) (j) and (k) are either not significant factors in this matter or have been subsumed in earlier consideration.
The balance of the provisions of Section 60CC are not relevant to the orders that need to be made.
PARENTAL RESPONSIBILITY
As discussed, Section 61DA requires a Court to apply a presumption that is in the best interests of the child for the parents to have equal shared parental responsibility. That presumption does not apply if there are reasonable grounds to believe that a parent has engaged in the abuse of a child or family violence, or as Section 61DA (4) provides:-
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.
The parties in this case are not able to communicate without significant mistrust and suspicion. There is behaviour by each of them that could be considered punitive to the other and in particular, the father’s evidence in relation to the provision of the USB stick by the mother and his inability to provide the year 2 memory books for the child provides a stark reminder as to the extent of the breakdown of the parental relationship.
I have found that the father has attempted to undermine the relationship that the child has with his mother and this is also reflected in the father’s behaviour in relation to the attempted enrolment of the child at W School.
There is also significant dispute between the parties as to the arrangements proposed by each of them as to the child’s needs in terms of counselling and therapeutic intervention. Again the considerations of Ms M that the child presents as a highly disturbed child must be addressed. The parties’ inability to have regard for each other, but more importantly how their ongoing conflict severely impacts the proper emotional development of the child requires orders to be made that would see the preponderance of significant issues and decision making that affects the child to be undertaken in an environment free of conflict. To that extent, whilst I consider that the parties should retain shared parental responsibility, in relation to matters affecting the child’s education and health they should be the responsibility of the mother.
CONCLUSION
I propose to make orders that would not affect the long-term arrangements in respect to the child spending time with his father namely, that he will see his father four nights each fortnight during school term. In addition, the parties are not at significant dispute that the mid-year holidays should be effectively shared. The parties differ as to the arrangements over the Christmas school holiday break and in that regard I intend to repeat the orders made for 2013/2014 in the 2014/2015 holiday period, but that thereafter the period should be shared equally between the parties.
There have been difficulties in terms of the arrangements for the child to communicate with the other by telephone and I propose to reduce the frequency of the extent of that communication.
I propose to make orders as to the time that the child will spend with each of the parties on special occasions that are generally consistent with orders as sought by each of them.
I do not consider it is appropriate to restrain the father from involving the child in the retail venture. The evidence is scant on the topic, but it appears to be a benign undertaking and provides appropriate interaction between the child, his father and members of his extended family.
Significantly however, I propose to suspend the orders that I make in terms of the time that the child will spend with his father for a period of four months except for any interaction that is required as may be directed or determined by Dr L as part of the child’s therapy.
Without a demonstration of a willingness to participate, I can see no advantage to the child in requiring the parties to undertake counselling. If they are minded to do so then that is a matter for them to decide. Equally, whilst I consider it is important that the child has the advantage of a further attempt at beneficial therapeutic intervention, I am mindful that the child is becoming resistive to the approach and accordingly that process will be limited reserving the rights to the parties to determine the appropriate future counselling and/or therapy involving each of them and the child.
Accordingly, I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 19 May 2014.
Associate: P M Malone
Date: 19 May 2014
Key Legal Topics
Areas of Law
-
Family Law
-
Evidence
-
Statutory Interpretation
Legal Concepts
-
Expert Evidence
-
Remedies
-
Procedural Fairness
-
Statutory Construction
1
0