Chapple and Michel
[2017] FCCA 177
•3 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHAPPLE & MICHEL | [2017] FCCA 177 |
| Catchwords: FAMILY LAW – Parents separate and living in New South Wales – Father comes to Melbourne in 2013 – Mother does not promote relationship – Father commences proceedings in 2014 – Mother does not comply with Court orders for time with and communication – Child has been living with father and spending time with mother – Child’s learning difficulties – Mother says she is unaware – Mother has negative attitude to Father – Child more likely to have ongoing relationship with both parents in the father’s primary care. |
| Legislation: Family Law Act 1975 Federal Circuit Court Rules 2001 |
| Cases cited: Re: F. Litigants in Person Guidelines (2001) 161 FLR 189 |
| Applicant: | MR CHAPPLE |
| Respondent: | MS MICHEL |
| File Number: | MLC 4116 of 2014 |
| Judgment of: | Judge Curtain |
| Hearing dates: | 2, 3 & 4 November and 12 & 13 December 2016 |
| Date of Last Submission: | 13 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 3 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms A. Goldthorp |
| Solicitors for the Applicant: | Pearce Webster Dugdale |
| Counsel for the Respondent: | In person |
| Solicitors for the Respondent: | Not Relevant |
| Counsel for Independent Children’s Lawyer: | Ms A. Glaister |
| Solicitors for the Independent Children’s Lawyer: | Taft Lawyers |
IT IS ORDERED:
That all previous orders be discharged save for Order 6 of the Orders made 11 May 2015 and the Order made 4 November 2016.
BY CONSENT
That the four Contraventions of the Applicant Father dated 13 October 2014, 15 January 2015, 17 March 2015 and 29 February 2016 be withdrawn with a right of reinstatement.
IT IS FURTHER ORDERED THAT:
The Father and Mother have equal shared parental responsibility for the child of the relationship X born (omitted) 2005 (“X”) save for the issue of choice of Secondary School, which the father will determine.
X shall live with the Father.
X shall spend time with and communicate with the Mother (and Father in 5(e)) as follows:
(a)For one half of all Victorian Gazetted term holiday periods at such times to be agreed and failing agreement, for the first week commencing the first Saturday and concluding by 5pm the following Sunday;
(b)For one half of the Victorian Gazetted summer holidays at such times to be agreed and failing agreement as follows:
(i)In 2017 and odd numbered years to commence on 2 January and to conclude by 5pm on the middle day of the holiday period; and
(ii)In 2018 and even numbered years to commence on the day after school concludes and to conclude by 5pm on the last day of one half of the holiday period;
(c)On the weekend of Mother’s Day from 9am on Saturday to 5pm on Sunday;
(d)On X’s birthday for five (5) hours if it falls on a non-school day (if the mother is in Victoria) and for three (3) hours if on a school day (if the Mother is in Victoria) and otherwise by telephone;
(e)By telephone on a liberal basis which:
(i)shall include calls to and from the absent parent on his mobile telephone at reasonable hours; and
(ii)such other reasonable times when X expresses a wish to telephone the other parent which shall be facilitated by the parent he is with.
(f)For two additional one week blocks a year, with such time to be taken:
(i)during school term holiday periods (and not the long summer vacation);
(ii)with the child to be returned to the Father’s care by 5pm on the Friday prior to the commencement of the new school term; and
(iii)provided the Mother gives the Father six months’ written notice of the dates she intends to exercise such additional time
(g)As otherwise agreed in writing between the parents.
For the purposes of X’s time with the Mother in New South Wales:
(a)The mother will provide the Father by email at least twenty-eight (28) days prior notice of the following:
(i)The proposed dates of travel and return;
(ii)A copy of any proposed itinerary; and
(iii)All contact details including the address and phone number where X will be staying during such time.
(b)The Father will respond promptly to the Mother’s proposal for X’s travel by email;
(c)Unless otherwise agreed and subject to order 7 below, the Mother will book the flights for X to travel to New South Wales and the Father will book the return flights for X to Victoria and the parents provide a copy of the ticket to the other no less than fourteen (14) days before the flights.
Should the parents not agree in writing how to equally share the travel costs, in default of agreement then the Mother shall be responsible for the cost of all flights for X to her residence and the Father shall be responsible for the cost of the return flights, save that the Mother will be responsible for the cost of both flights for the Mother’s day time should she wish to exercise such time.
The Mother and Father shall facilitate X having liberal telephone time with the other whilst he is in their respective care as provided in 5(e) and when the credit on X’s mobile telephone is $5 or below, the parent with his then care shall pay for further credit.
The Father and Mother do all things to authorise any school, educational institution or medical practitioner X attends upon to discuss matters with each of them and to release information to them regarding X.
The Father and Mother shall notify each other immediately in the event of a medical emergency, serious injury or serious medical condition concerning X and provide an authority to any medical practitioner providing X with medical care, to discuss X’s condition and care with the other parent.
There be liberty to apply at short notice to the Father in the event the Mother fails to return X to his care as provided for in these Orders.
The parties communicate by email with respect to all non-urgent matters concerning X.
The Mother be permitted to attend school events, extra-curricular events, parent/teacher interviews and all the usual events which parents are usually invited to attend.
The Father and Mother, their servants and agents be and are hereby each restrained by injunction from:
(a)Denigrating or permitting any other person to denigrate the other parent or members of the other parent’s household in the presence or hearing of X; and
(b)Discussing these proceedings in the presence or hearing of X.
This matter be Certified as appropriate for the briefing of Counsel.
The order appointing the Independent Children’s Lawyer be discharged.
NOTATION:
A.It is noted that X is booked to attend a four (4) day (hobby omitted) Camp from (omitted) 2017 inclusive and will not be able to attend for time with the Mother during that period.
B.Pursuant to ss.65DA(2) and 62B 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 the parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Chapple & Michel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4116 of 2014
| MR CHAPPLE |
Applicant
And
| MS MICHEL |
Respondent
REASONS FOR JUDGMENT
“Those who cannot remember the past are condemned to repeat it”
- George Santayana
Introduction
This is a parenting matter where both of the parties seek to have the primary care of their child, X born (omitted) 2005 (“X”). The parties separated in 2007 when X was over two years of age. Soon after separation they came to an arrangement whereby X would spend alternate weekends and other shorter times with his father and otherwise live primarily in the care of the mother. Over time this developed into something like a 50/50 shared care arrangement until 2013 when the father left the New South Wales (omitted) town where they were living, at short notice, and moved to Melbourne to care for his mother.
The father also says that he subsequently tried to locate and contact the mother so that he could have an ongoing relationship with X. What he did not know is that the mother deleted his mobile telephone number, relocated to Sydney and did not advise the father of X’s whereabouts. She effectively disappeared. On 14 May 2014, he commenced proceedings in this court seeking a Location Order. That was made by me on the first return date on 2 July 2014, and subsequently the matter came back to this court on 15 September 2014, when I made the following orders:
THE COURT ORDERS THAT:
1.All extant applications be adjourned to the Duty List of this Court on 2 December 2014 at 9.45am for Directions, with the Mother to attend either personally or through a legal representative.
2.The Applicant pay on or before 4.00pm on 29 September 2014 to the cashier of this Registry the sum of $80.00 on account of service fees.
3.Upon compliance with Order 2 above, the Registry Manager of the Commonwealth Law Courts at Melbourne forthwith cause a sealed copy of this Order to be personally served on the Mother.
4.The Mother forthwith make, file and serve:
(a)a Response;
(b)an affidavit in support; and
(c) a Notice of Address for Service,
that she intends to rely upon.
5.The Father be granted leave this day to make an oral application for the child, X born (omitted) 2005 (“the child”) to spend time and communicate with him.
UNTIL FURTHER ORDER THE COURT ORDERS THAT:
6.The parties have equal shared parental responsibility of the child.
7.The child live with the Mother.
8.The child spend time and communicate with the Father for the second half of the September 2014 New South Wales school term holidays at times to be agreed between the parties and failing agreement from 10.00am on Saturday, 27 September 2014 to 6.00pm on Saturday, 4 October 2014.
9.The child communicate with the Father via telephone for two days each week, on days and times as agreed between the parties and failing agreement each Tuesday and Thursday from 5.30pm to 6.00pm, with the Father to telephone the Mother’s telephone at the commencement of the time and the Mother to do all things necessary to facilitate such telephone calls.
AND THE COURT NOTES THAT:
A.The Mother was called outside of Court at 9.50am and there was no response to the call by or on behalf of the Mother.
B.The Court is in receipt of an email transmission from the Mother that arrived after these Order were made, sent at 11.01am on 15 September 2014 advising:
“I am asking for an extension on this matter as I was only served with paperwork on 9/9/14. I don't feel 4 working days is enough time to deal with such an important matter.
I have contacted my solicitor but as I work full time and then care for X full time I have not had enough time to see her in regards to this matter.I have tried all weekend to send email through family courts portal but it was not working. Ms I from customer service has just reset this for me.”
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
On the 2 December 2014, the mother with my leave appeared by telephone and orders were made for trial and also included a communication order. The orders I made are as follows:
THE COURT ORDERS THAT:
1.The matter be adjourned to this Court on 28 April 2015 at 10.00am for Final Hearing, with an estimated hearing time of one day (“the Final Hearing”), and the Mother shall attend the Final Hearing personally.
2.In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in the Family Law (Fees) Regulation 2012.
3.Each party make, file and serve any material on which they intend to rely upon within fifty six (56) days from the date hereof.
4.The Mother make, file and serve a Notice of Address for Service by no later than 4.00pm on 9 December 2014.
5.The Father make, file and serve on each other party by no later than 4.00pm, twenty-eight (28) days prior to the Final Hearing:
(a)one affidavit setting out any further evidence in chief; and
(b)one affidavit of each witness intended to be relied upon at the Final Hearing.
6.The Mother make, file and serve on each other party by no later than 4.00pm, fourteen (14) days prior to the Final Hearing:
(a)one affidavit setting out any further evidence in chief; and
(b)one affidavit of each witness intended to be relied upon at the Final Hearing.
| PARENTING 1. a list of the documents to be relied upon; 2. a brief chronology; 3. an outline of contentions with respect to: 3.1. whether the presumption of equal shared parental responsibility applies (s.61DA), 3.2. the considerations relevant to equal time and substantial and significant time (s.65DAA); 3.3 each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors); 3.4. other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and 3.5. any other matters relevant to the decision; and 4. a statement of the precise orders sought. |
7.Each party must make, file and serve an Outline of Case document by no later than 4.00pm, two (2) days prior to the Final Hearing, including the following:
8.No party shall be entitled to rely on any further material filed after the above deadlines without leave of the Court.
UNTIL FURTHER ORDER THE COURT ORDERS THAT:
9.The Mother shall ensure that the child, X born (omitted) 2005 (“the child”) shall communicate with the Father via telephone for two days each week, on days and times as agreed between the parties and failing agreement each Tuesday and Thursday from 6.30pm to 7.00pm, with the Father to telephone the Mother at the commencement of the time and the Mother to do all things necessary to facilitate such telephone calls.
AND THE COURT NOTES THAT:
A.In the event of non-compliance by any party with the Orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents; or
(b)any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said Orders, directions, Rules and Regulations.
B.
To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Judge, or by another appropriate court officer, shortly prior to the Final Hearing date.C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
On 21 January and 23 March 2015, I made chambers orders for the service of Contravention Applications filed by the father on the mother. He alleged she was not complying with the earlier orders I made for time with and communication. The matter came on for trial on 28 April 2015. There was not only no compliance by the mother with my earlier orders, but there was also no appearance by her on that day. I had little choice but to adjourn the matter to the 11 May 2015, and made the following orders:
THE COURT ORDERS THAT:
1.The Father be granted leave to make an oral application that the child X born (omitted) 2005 (“the child”) live with the Father.
2.The matter be adjourned to this Court on 11 May 2015 at 10.00am for Final Hearing, with an estimated hearing time of one (1) day (“the Final Hearing”).
3.In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in the Family Law (Fees) Regulation 2012.
4.Should Victoria Legal Aid cease funding any party, then all parties shall forthwith contact the Associate to Judge Curtain via email transmission, associate.judgecurtain@ federalcircuitcourt.gov.au to arrange for the matter to be listed for mention prior to the Final Hearing.
5.The Mother shall attend the Final Hearing in person.
6.The Mother is to deliver the child to the childcare facility located on the 5th floor of the Commonwealth Law Courts Building, 305 William Street, Melbourne, Victoria by no later than 9.30am on 11 May 2015 and is not to remove the child from the childcare facility until further order of this Court.
7.If the Mother does not attend the Final Hearing with the child and fully comply with these Orders a warrant will be issued for her arrest without further notice.
8.The Father pay on or before 4.00pm on 1 May 2015 to the cashier of this Registry the sum of eighty dollars ($80.00) on account of service fees.
9.Upon payment by the Father of the required fee, the Registry Manager arrange for a process server to effect personal service on the Mother a sealed copy of this Order.
10.If service of any document is effected on the Mother using the address pursuant to the Commonwealth Information Order, the Registry Manager must ensure any affidavit of Service does not state that address but identifies it only as “address provided by the Registry Manager of the Court”.
11.The Father’s costs of this day be reserved.
AND THE COURT NOTES THAT:
A.The Mother was called outside of Court at 10.09am and there was no response to the call by or on behalf of the Mother.
B.The Deputy Associate to Judge Curtain attempted to telephone the Mother at 10.17am and 10.25am however there was no answer to the telephone call by the Mother.
C.The Mother sent an e-mail regarding her non-attendance this day, which was not acceptable to the Court.
D.THE MOTHER SHOULD NOTE ORDER 7 ABOVE REGARDING HER POSSIBLE ARREST.
E.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
On the 11 May 2015 again the mother appeared by telephone. I noted she had not complied with my earlier order for her to attend the court and deliver the child to childcare. In all the circumstances, I made the following orders with the very clear notation ‘A’:
THE COURT ORDERS THAT:
1.All extant applications be adjourned to the Duty List of this Court on 29 June 2015 at 9.45am for Directions with the parties being granted leave to appear via telephone link.
2.The matter be further adjourned to this Court on 13 August 2015 at 10.00am for an Interim Contested Hearing in relation to the child’s X born (omitted) 2015 (“the child”) time with and communication with the Father.
3.The child spend time with the Father from 5.00pm 28 June 2015 until 5.00pm 5 July 2015, with the Mother to deliver the child to the Father at (omitted) Police Station by no later than 5.00pm at the commencement of time and the Father to deliver the child to Mother at (omitted) Police Station by no later than 5.00pm at the conclusion of time.
4.Pursuant to Order 3 above the Mother shall bear the costs of the child’s travel to (omitted) and the Father shall bear the costs of the child’s travel to (omitted).
5.The Father be at liberty to:
a)contact the Principal of the (omitted) Public School and enquire whether the child is a student there, and if so obtain a copy of the child’s reports and school photographs and details of the child’s progress; and
b)exhibit a copy of this Order to the Principal of the (omitted) Public school.
6.The Mother pay to the Father the sum of $1000 by no later than 11 August 2015 (being costs thrown away).
7.It is declared and Ordered that to the extent that it is necessary for the parties (and child) to comply with these time with and other communication Orders made 15 September 2014, and to the extent that any family violence Order is inconsistent with this Order it is suspended in that part pursuant to s.68P and s.68Q of the Family Law Act 1975 (Cth).
8.The Father pay on or before 4.00pm on 20 May 2015 to the cashier of this Registry the sum of eighty dollars ($80.00) on account of service fees.
9.Upon payment by the Father of the required fee, the Registry Manager arrange for a process server to effect service on the Mother a sealed copy of this Order.
10.If service of any document is effected on the Respondent using the address pursuant to the Commonwealth Information Order, the Registry Manager must ensure any affidavit of Service does not state that address but identifies it only as “address provided by the Registry Manager of the Court”.
AND THE COURT NOTES THAT:
A.This Order has been explained to the Mother who said she understood same and acknowledged if she does not comply with these Orders may be arrested without further notice.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
On the 29th June 2015 this matter came back before me and yet again the mother had not complied with my orders, nor appeared at the hearing. Given there was no time with or communication for X with his father occurring, and given the mother’s clear non-compliance with my earlier directions and orders, I had no choice but to make a Recovery Order. I had considered having the mother arrested but I had no evidence about who could care for X in her absence.
The child X came into the care of the father soon after. It was regrettable that he was initially distressed, but this was wholly due to the mother’s non-compliance with my earlier orders. I ensured however that he had an ongoing relationship with BOTH parents. He has now been living with his father for over 18 months and the mother wants the court to make a final order to return to the previous status quo, that is with the child to reside primarily with her in New South Wales.
The court has real concerns about the ability of the mother in relation to a number of issues, namely for her to learn from her past mistakes of not promoting the relationship between X and the father, her attitude to the father, and her responsibilities as a parent generally.
Background
The Applicant father, Mr Chapple, was born on (omitted) 1968 and is aged 48 years. He works full time as a (occupation omitted). He lives at (omitted), a suburb of Melbourne.
The Respondent mother, Ms Michel lives at (omitted), New South Wales and was born on (omitted) 1969. She is therefore aged 47 years. She is currently in receipt of a Carer’s Pension for the care of her mother, with whom she lives. She appeared in person and I assisted her and advised her as best I could pursuant to the directions in Re: F. Litigants in Person Guidelines (2001) 161 FLR 189.
It is common ground that that the parties commenced their relationship in 2003 but there was some dispute as to when they finally separated; the mother says there were a number of short separations and a final one on 6 February 2007, and the father says sometime in 2007 or 2008. For the purpose of these proceedings there is no great significance in either final date or whether there were prior separations, as it is common ground that whenever they separated, X lived primarily with his mother and initially spent alternate weekends with his father. As I said earlier, this grew over time so that by 2013 both parties were having a similar role in the care of X, one that could be described as an ‘equal shared care’ arrangement that had been in operation for some years.
It is also common ground between the parties that X has a close and loving relationship with both of his parents and they love him dearly.
The father agreed to an order for his four Contravention Applications to be withdrawn with a right of reinstatement to allow the court to proceed with the substantive issue of X’s residence.
The evidence
The parties relied on the following documents:
A. Applicant Father’s material:
a)Section 11F Memorandum by Ms C dated 19 February 2016;
b)Family Report by Ms A dated 16 July 2016;
c)The father’s Further Amended Initiating Application filed on 1 August 2016;
d)The father’s Trial affidavit filed on 1 August 2016;
e)The father’s affidavit filed on 14 May 2014;
f)The father’s affidavit filed on 13 October 2014;
g)The father’s affidavit filed on 15 January 2015;
h)The father’s affidavit filed on 20 February 2015;
i)The father’s affidavit filed on 27 February 2015;
j)The father’s affidavit filed on 27 July 2015;
k)The father’s affidavit filed on 10 August 2015;
l)The father’s affidavit filed on 11 November 2015;
m)The father’s affidavit filed on 1 February 2016;
n)The affidavit of Ms T filed on 19 October 2016;
o)Applications for Contravention filed on:
i)13 October 2014;
ii)15 January 2015;
iii)17 March 2015; and
iv)29 February 2016.
p)Case Outline filed 11 August 2016; and
q)Notice of Risk filed on 7 August 2015.
B. Respondent Mother’s material:
a)Response filed on 29 July 2015;
b)Notice of Risk filed 29 July 2015;
c)Affidavits of the mother:
i)Filed on 29 July 2015; and
ii)Filed on 6 August 2015.
d)Affidavit of Ms T filed on 6 August 2015; and
e)Two affidavits of Ms S filed on 7 August 2015 and 19 October 2016.
C. Material relied upon by the Independent Children’s Lawyer:
a)Case Outline filed on 12 August 2016;
b)Documents produced upon Subpoena;
c)Section 11F Memorandum by Ms C dated 19 February 2016; and
d)Family Report by Ms A dated 16 July 2016.
The applicant’s evidence
The father generally gave his evidence in an unambiguous, helpful and clear way save for the issues of family violence and his relationship with the respondent.
It is my opinion that he did not take responsibility for the arguments and confrontation that he was involved in, or provoked, from time to time during the relationship and early post-separation. He did commit family violence as defined in the Family Law Act 1975 (Cth) on the mother in the form of threats and verbal abuse, but I find it was not to the extent that she claimed. In fact it was difficult to measure the exact nature and degree of the family violence because the mother clearly “gilded the lily” and the father understated or minimised his role.
However, it should be noted that he was never violent to or with X, save and except to the extent that X must have observed, heard or otherwise witnessed the many volatile arguments between the parents. In saying this I am not excusing the father’s behaviour, nor minimising it, by rather putting it into context.
It is clear they must never in the future come face to face in their roles of caring for X, unless they do something about their past behaviour and ensure it is not repeated.
MS T
She is the father’s fiancée who affirmed two affidavits on the 5th August 2015, and the 17th October 2016.
In paragraph 3 of the first affidavit, which was not challenged in cross-examination, Ms T says the following:
“Since X arrived in Mr Chapple’s care, X has been very settled and has enjoyed life at his new school, with his new friends, playing goalie for his (hobby omitted) team which he loves doing. X enjoys being around his family and his extended family.”
In her second affidavit she detailed how she now lives with the father and her daughter E and X. She described how her daughter related to the father and X, with E describing the father as “really cool”. I note her evidence that her eldest daughter is now in the (employer omitted) and because of her career, is unlikely to reside in the home with X.
The witness said in her material that there was no family violence in their home or their relationship. She was cross-examined by the mother on this topic and the witness confirmed that there was no violence in their relationship or household and that her relationship commenced in September 2015.
She confirmed that she and the father had recently purchased a home together and are planning its construction.
I found the evidence from this witness to be very helpful and I had no reason to doubt her veracity, subject to her being clearly fond of the father and so to some degree it must affect her objectivity. Her evidence must be seen in that context.
The respondent’s evidence
The respondent mother in my view did not always tell the truth. She overstated the family violence, could not properly explain why she could not or did not even attempt to promote a relationship between X and his father from 2013 to 2015, particularly given my clear and unambiguous court orders for X’s communication and time with his father. Moreover, I do not accept she was unaware of X’s learning issues and I find that it is more likely than not that officers of the New South Wales schools he attended probably raised this topic with her, but she did not see this as being a priority or an issue that deserved some action.
At one stage, I asked the mother about her 93 page affidavit:
“HIS HONOUR:
That’s sworn by you on 28 July 2015?‑‑‑Yes.
You saw a Mr B, is it?‑‑‑Yes.
At (omitted)?‑‑‑Yes.
How many times did you see him before you swore this affidavit? You must have gone and seen him and told him the history?‑‑‑Yes.
Given him documents. He prepared this?‑‑‑Yes.
Now, did you see him a number of times?‑‑‑Yes.
And then did he give you a draft of the affidavit before you swore it?‑‑‑Yes. I think – no. I went in there and read over it.
Went in there and read it?‑‑‑Yes.
And you had plenty of time to read it properly?‑‑‑I would say so, yes.
And you picked up any errors? Or anything that was missing?‑‑‑I would hope ‑ ‑ ‑
To the best of your recollection?‑‑‑Yes. I would hope so.
I mean, you were thorough, before you swore it ‑ ‑ ‑?‑‑‑Yes.
You knew it had to contain your case?‑‑‑Yes.
And you had to make sure everything in there was relevant?‑‑‑Yes.
Yes?‑‑‑Yes.
Okay. And that’s the case with this affidavit. There’s nothing missing from it?‑‑‑No, your Honour.
All right. You’ve given evidence, madam, that when I made orders in September 2014, December 2014 and May 2015 that, first of all, X [sic] wouldn’t speak to his father on the phone. He was upset?‑‑‑Yes.
And X [sic] wouldn’t see his father he was upset?‑‑‑Yes.
Right?‑‑‑Yes.
You in this affidavit of 28 July 2015 addressed the question of non-compliance with my orders, right?‑‑‑Yes.
And you do this at page 17, Non-Participation in Court Proceedings, that’s a subheading. You talk in 79, 80 and 81 about the orders and why they weren’t complied with. Nowhere do you say in this affidavit that X [sic] would not speak to his father on the phone. Nowhere do you say in this affidavit that X [sic] wouldn’t see him because he was upset to see him. How do you explain that?‑‑‑I can’t, your Honour.
In fact, when you talk about X’s [sic] demeanour in paragraph 81, you say:
X [sic] remains somewhat reserved with the applicant.
That’s the only reference you make to it. Not “He’s upset:, not “He won’t speak to him”, but “He’s reserved with him.” How do you explain that conflict between that and your evidence in court?‑‑‑I can’t, your Honour.”
Her evidence often was unreliable and where it conflicted with the father’s evidence, I prefer the evidence of the father.
MS A
This lady is the 26 year-old daughter of the mother, she swore an affidavit on the 28th July 2015, and gave evidence by telephone.
She told the court that she cohabited with mother and father from 2003 to 2005 or 2006. I note that X was born in (omitted) 2005.
She agreed in cross-examination that during this period she lead a busy life and therefore her observations were limited.
During cross-examination the following occurred:
“MS GOLDTHORP:
So you’ve had the opportunity to observe for about two years of X’s life, so from zero to two at best? --- Yes, and then, when I would go up to see my mother then I would also observe things that would happen as well, when I would stay up at my mother’s place.”
And further:
“MS GOLDTHORP:
Yes. What my client says – and I think this is agreed – that there were verbal arguments between my client and your mother, and that they both would raise their voice at each other; would you agree that that’s the case? --- There was [sic] always arguments going on in the household when I was living at home…He was always very cranky. And then, he would get cranky. If the – if my little brother was not around, my mum would not raise his – her voice, but if X was in the room she would just walk away.
Okay. But she would raise her voice if X wasn’t around; that’s right, isn’t it? --- Well, when you’re in a heated moment and someone’s trying to, like, argue with you and raise their voice at you, I think ---
Yes? --- the majority of people would do that.”
She was asked about her view of the Applicant father and she said that she felt … “hurt and destroyed.” She was asked if there was there anything good to say about Mr Chapple and she answered…“not at the moment. No.”
I note at paragraph 25, page 4 of her affidavit the witness said as follows:
25. I am aware my mum has largely not participated in the Court proceedings to date. I have talked to my mum about why she has not participated. I said to mum: “Why did you ignore it mum?” My mum said to me: “X didn’t want anything to do with him.”
The mother did not seek to clarify this through the witness or in her own evidence.
The evidence of this witness was limited and in my opinion, was sometimes coloured by her negative view of the father.
The Family Report
This was authored by a Ms A and dated 16 July 2016.
It is rather like “the curate’s egg”; good in parts. The author did not interview the father’s fiancée, Ms T who gave evidence to this court which as I said I found very helpful. Moreover, Ms A did not read the psychological report regarding X prepared on 3rd November 2015 by Ms L at the request of the Victorian Education Department.
This report had previously been tendered at an interim hearing and was on the court file as an exhibit. In my view, it was a significant document in that it detailed the educational strengths and weaknesses of X, the latter of which were clearly very serious.
The author of the Family Report looked at and considered school reports from (omitted) but did not contact or consider similar documents from X’s current school that he has been attending for the last 18 months or so.
Generally, I found parts of the report helpful such as the interview with the child and child/parent observations, but it had too many flaws to accept the recommendation that X should live with his mother. In any event, the expert when cross-examined, changed her position on that recommendation.
I note in the recent judgment of the Full Court of the Family Court of Australia in Morrall & Olmos [2017] FamCAFC 2 in paragraph 60 their Honours said when referring to U v U (2002) 211 CLR 238… “that a judge is not bound by recommendation of a counsellor (Family Consultant) nor bound to accept or reject the whole, or any part of, the evidence of such a witness.”
Relevant Legal Principles
Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the children are met by:
a)ensuring that children have the benefit of both their parents having a meaningful involvement in their life, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests.
Section 60CC factors
The two primary considerations are set out in s.60CC(2) and s.60CC(2A) of the Act. They 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.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I shall consider these matters after I assess the s.60CC(3) criteria below, (see Collu & Rinaldo [2010] FamCAFC 53 at paragraph 335).
Additional considerations are:
As to sub-section 60CC(3) of the Act:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In relation to X’s views, the author of the Family Report said the following:
“44. X is a tall good looking boy who was willing to speak about his thoughts and feelings. He spoke in a variety of voices and informed that he enjoys “acting”, although he gets very nervous if on stage. He had quite a sense of humour and a degree of insight. When sitting in the office for interview he put his feet on the coffee table and enquired if it was “Okay” for him to do so.”
The author then went on to say the following:
“It took some minutes for X to become settled and sound like an 11 year old, initially behaving more like a much younger child…. X appeared to be under some degree of pressure and his cognisance of the complexity of decisions to be made led him to say he was confused and he thought the Family Consultants and Judge were probably therefore also confused.”
At paragraph 47 the author said the following:
“47. X related he makes his own lunches to take to school, describing in detail what he makes. He indicated he likes Ms T, his father’s partner who lives with him and one of her daughters who also lives there. He said Ms T buys him things.”
At paragraph 48 the author said the following:
“48. In relation to spending time with his mother, X said he would like to do that on school holidays.”
The author said in paragraph 50 the following:
“50. X had some difficulty saying how he would feel if he was to remain living with his father or move to live with his mother. Consequently he was asked what he would wish for if he had three magic wishes. His first wish was “to have super-speed so I could go to Mum’s and Dad’s.” His second wish was “to be able to change people’s minds” and his third wish was “to see what people think in their minds and know who’s lying.”
In the s.11F Report prepared by Family Consultant Chapman and dated 19 February 2016, X was reported to say that whilst he missed his mother sometimes… “I’d be happy living with Dad, maybe I don’t really know how ….about living with Mum.”
Overall, it was my impression from the reports and the evidence of the parties and others, that X did miss his mother but he was generally comfortable with the current status quo. However, I am mindful that he is only aged 11 years and it is suggested that he is immature for his age. Therefore, I will not put significant weight on his views, however they will not be ignored.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
The evidence indicates to me that X has a close and loving relationship with both parents. There is no suggestion that his relationship with either of them is difficult, strained or otherwise problematic.
(ii) other persons (including any grandparent or other relative of the child);
It is clear from the Family Consultant’s Report that X has a close relationship with the father’s fiancée, Ms T and it appears also from the evidence that he has close relationships with his half-sisters, and the Applicant father’s children from his earlier relationship.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The evidence is clear that both parties have sought to participate in all of these issues to the extent that they have been able to do so and have the opportunity to do so. The father’s role has been frustrated to some degree when the mother disappeared with X when she went to Sydney and subsequently when orders were made by the Court, which were ignored by the mother. However, more recently this has been carried out fully by both parents. The Applicant father did not help himself by not directly providing the mother with contact details before he left New South Wales.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The child has been basically maintained historically by the parent who has had the primary care and more recently by the father, who has taken on the financial burden with a minor contribution from the mother in a token form, given that she is now on a Carer’s Pension.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
The evidence in my view establishes that X is comfortable with the current status quo in living with his father and he regularly sees (save for a recent “hiccup”) and communicates with his mother. If there was a change in that, there is no doubt in my mind he would miss his father, and it would introduce further instability into his life where historically this little boy has had far too many changes both in his environment and the schools he has attended. It is important that he has stability and routine in his life if he is to achieve a contentment and level of happiness that is appropriate for someone of his age. There have been occasions when he clearly has missed his mother but over time he appears to have adapted well to time with her and his regular communication with her.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
It appears to me that the current status quo, however created, provides X with a close relationship with Ms T and her daughter E. It also suggests to me that to disrupt that current arrangement could be very upsetting for X.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
Notwithstanding the mother lives in New South Wales and the father in Victoria, the parties have effectively agreed to transport arrangements in their proposed final orders and during the running of the trial. This should not be an ongoing problem as both parties agreed to share the financial burden and it should not affect X’s ability to have regular contact and relations with his parents and others.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There was little evidence about any third party in relation to this topic and in the circumstances, I will be focusing on the parents. Soon after the child came into the care of the father, he and/or X’s teacher arranged for X to be assessed by a psychologist. The Report was tendered previously before me at an interim hearing and formed part of the evidence of the trial. This indicated to me that the father is currently proactive in relation to X’s needs, in particular his emotional and intellectual needs.
However, I am very troubled about the mother’s attitude to X’s emotional and intellectual needs given she did not actively promote a relationship with the father post-separation from 2013 and more particularly, after I have made specific and clear orders for communication and time with. She intentionally did not comply with those orders.
The father was cross-examined about X’s intellectual and other needs by Counsel for the Independent Children’s Lawyer as follows:
“MS GLAISTER:
…Now, in relation to schooling issues, when – how – the document which was tendered to his Honour which was the report from the psychologist generated at (omitted) Primary School – how did it come about that that report was prepared?‑‑‑It was prepared as I spoke to his teacher, Ms R, at the time last year.
And what did Ms ‑ ‑ ‑?‑‑‑She had indicated to me that he was a bit behind – he was a year and a half behind with his education – and suggested to see a counsellor and get some – and get a brief description on how he’s going, so that was organised through Ms R, his teacher.
All right. And then that report was generated ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ and I presume you then had a meeting with the school or the teacher to ‑ ‑ ‑?‑‑‑The teacher, yes.
‑ ‑ ‑ figure out what you were going to do about ‑ ‑ ‑?‑‑‑That’s correct, yes.
‑ ‑ ‑ what the report said. And what advice were you given by the teacher as to what should happen as a result of what the report had found?‑‑‑Sure. His – his reading was behind. His speech was behind as well. She – she indicated to me that we need to spend more time reading and reading out loud, really working on his maths as well, which he has a – the ..... program ..... the computer. So we do at least two hours a week of reading and also he does a thousand points on ....., so he might spend an hour or an hour and a half on the computer with doing his maths. I will then sign off every Thursday in a little diary he has to see – say what book he has read and how long he had read for – whether it was an hour or half an hour each night. The teacher will see that, and there has been a couple of occasions if – if it wasn’t sent through or he has – he would be missing out on sport, but they would be signed off every Thursday so the teacher can see that.
And how – for what period of time have you been doing that?‑‑‑I do it every week.
Yes, but when did you start? I mean ‑ ‑ ‑?‑‑‑No – we started as soon as we started the school.
Yes – when was that, about ‑ ‑ ‑?‑‑‑Which was two – around July 2015.
All right. So you’ve been doing that for a little over a year?‑‑‑That’s correct, yes.And have there – have you had meetings with the teachers or the school ‑ ‑ ‑?‑‑‑Yes, I have, yes.
‑ ‑ ‑ on an ongoing basis during ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ that period?‑‑‑Yes. I’ve recently ‑ ‑ ‑
How often do you see the teacher to review how things are going?‑‑‑Very regularly. I spoke to a teacher of his, which is Mrs – Mr C. He’s his grade 6 teacher and he has given great remarks in regards to how he’s improving. His – his speech has improved a great deal. His reading has improved a great deal. His maths has improved and so he’s certainly on the way up. He has – he has improved a great deal from since last year.
All right. And when he first came into your care, did he engage with a school counsellor?‑‑‑He did, yes.
All right. And for what period of time did he do that?‑‑‑He’s still continuing to this – as – as now.
All right. Now, it’s time for him to change schools in any event; that’s right, isn’t it ‑ ‑ ‑?‑‑‑That’s correct, yes.
‑ ‑ ‑ because he has got to go to high school next year?‑‑‑That’s correct, yes.
And do you know what supports, if any, there would be for him in his new school or do you think he needs any or ‑ ‑ ‑?‑‑‑Yes, definitely.
‑ ‑ ‑ would he continue with a counsellor, or – have you turned your mind to any of that?‑‑‑We certainly have, yes. The high school is (omitted) Primary School. We had a good chat with them. We had an open day and that was certainly brought up. Information has also been brought up from (omitted) Primary School, so they are aware of his situation, so they will accommodate and there will be certain areas where they will improve. If he’s down with his reading they certainly will encourage more reading. There will be certain classes for him to improve.”
In relation to the mother, she was cross-examined by Counsel for the father in relation to the assessment prepared by the Victorian State Government Education and Training Department as follows:
“MS GOLDTHORP:
… And now we’re moving forward to when he comes to live with my client and he attends Grade 5 in Victoria. He is about 10?‑‑‑Yes.
… And this report that we’re talking about, prepared by Ms L, psychologist, who is not just from the school. She is from the Victorian state government Education and Training. Okay. She speaks to his teacher who has made those comments I put to you earlier. And then as a result of her assessments of X [sic], she says, “Results on the Vineland-II teacher rating form indicate that X’s [sic] adaptive functioning is moderately low. X’s [sic] social skills are rated as being adequate, however, his communication skills and daily living skills are moderately low”. Do you remember reading that?‑‑‑Yes. I do.
All right. So this is an assessment of X [sic] to – some three months after he has come into my client’s care. All right. It says, “his processing speed fell within the borderline range. His verbal comprehension was also found to be within the borderline range. Indeed his difficulties with processing speed would have an impact on his comprehension, which might be one explanation for why his verbal comprehension index was also behind the level that would be expected for his age”. It says, “his working memory was found to be in the low average range”. These are all pretty concerning things aren’t they?‑‑‑Yes. They are.
And concerning in terms of a prognosis for X’s [sic] future?‑‑‑Yes.
All right. So are you pleased that my client and (omitted) primary school have noticed these problems with X [sic], and that they’ve had him assessed and they’re dealing with those issues?‑‑‑Yes.
All right?‑‑‑But your client had 50 per cent shared care of X [sic] when he was here, like, in New South Wales. Did he pick up on it then too? So ‑ ‑ ‑
Well, they were questions you could have put to him, madam. They’re not questions for you to ask of me?‑‑‑Yes.
And the point is you had X [sic] in your sole care for how many years prior to him coming to live with my client in Victoria?‑‑‑Two.”
________________________________________________________
“MS GOLDTHORP:
All right. But it seems, doesn’t it, now that we’ve had this assessment of X [sic] that he has pretty significant issues around learning, around hearing, around processing information; you would agree with that?‑‑‑Well, it says in that report, but when ‑ ‑ ‑
But it’s not something you notice?‑‑‑ ‑ ‑ ‑he’s with me, it’s not something I’ve noticed.”
At one stage the mother was cross-examined about X’s current school as follows:
“MS GOLDTHORP:
Do you know this, that Mr H is his teacher this year?---Yes, I do.
Have you spoken to Mr H yourself?---No, I haven't.
Did you ever think to call the school and have a chat with X’s teacher?---No.
Why not?---Because I ask X every day - or every time I speak to him, "How's school going? What are you doing at school?" I get all my information from him that I need that he's fine.
All the information that you need, you get from an 11 year old, do you?---Yes, I do. I have a very good relationship with my son and can understand him.So you don't see any value in getting the point of view of an adult, his teacher, as someone who can comment on how X’s going?---No.
HIS HONOUR: How long have you known that he has attended (omitted) Primary?---I found that out at our hearing - one of the hearings we had this year, because I didn't know and you actually - - -
Well, there has been two hearings: March and August?---I think it was the March.
Okay. So once you found out in March, did you contact the school at all or attempt to?‑‑‑No.
Why not?---I just didn't.”
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
This is not particularly relevant and it is covered by the other s.60CC(2) criteria where it is relevant.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I was very troubled by the mother’s attitude to the father and his role in X’s life and their relationship. She was cross-examined by Counsel for the father on this topic as follows:
“MS GOLDTHORP:
Okay. So what were the good things that you thought X got out of spending time with his father?‑‑‑Good things?
Pardon?‑‑‑Good things?
Yes. Surely you ‑ ‑ ‑?‑‑‑That he gets to have a relationship with his father.
Yes, but what entailed - what is in that relationship?‑‑‑I'm not too sure.
There must be some good things. So you just blindly sent him off thinking he must have a relationship?‑‑‑Yes.
Can you name any of the good things that Mr Chapple provided then to X?‑‑‑No.
You do not think he had anything to offer X as a father?‑‑‑No.
Okay. Do you think he has anything to offer him now?‑‑‑No.
Okay. There are no redeeming features of my client in terms of being a father?‑‑‑No.
HIS HONOUR: What do you think of him?‑‑‑Sorry?
What do you think of him?‑‑‑He is a very violent man.
What do you think of him as a person?‑‑‑Yes, a very rude, arrogant person.
Does he have any strengths?‑‑‑No.”
_________________________________________________________
“MS GOLDTHORP:
Did you ever think you had an obligation to contact him and say, "We're moving to Sydney. Here's an address or, you know, a PO box you could write to X" or "Here's a phone number. You're welcome to give X a call"?‑‑‑No.
Did that ever occur to you?‑‑‑No.
Why not?‑‑‑Why not?
Well - okay, sorry. I will withdraw that. Prior to my client relocating, he had X with him, at minimum - well, on your evidence - 50 per cent of the time?‑‑‑Yes.
On my client's evidence about 70 per cent of the time, so they were used to spending a lot of time together. You would agree?‑‑‑50 per cent of the time, yes
All right. That's still a lot of time?‑‑‑Mmm.
So did it occur to you to be the one - you know, maybe be the bigger person - and send my client a message, given you were able to do that because he didn't have an intervention order against you, and say to him, "Here's a phone number if you would like to call X" or "I'm moving to Sydney with X" or "Here's a PO box you can send gifts to or your solicitor can write to". Did anything like that occur to you?---No.
Okay. And that's because you didn't think that there was any value for X in maintaining a relationship with his father?---I was the full-time carer of X, so I moved with X.
Yes, but what I asked you was: is that because you didn't see that there was any value to X in maintaining a relationship with his father?---His father chose to move away from him so I - - -
I'm asking you a question?---No, I don't.
So you didn't see the value of them maintaining a relationship?---No.”
________________________________________________________
“MS GOLDTHORP:
So would you say my client is significant to X just because he's the father?---Yes.
Just by virtue of the fact that he's his biological father?---Yes.
Not because of any other attributes that he brings to X’s life?---No.
So simply as a result of the biological connection between them?---Yes.
Ms Michel, I just want to hand to you a couple of letters, if I could. If you could actually just place them down in front of you, I will just ask you a couple of questions first. So if you just keep them there. You have read my client's trial affidavit regarding X’s current living arrangements with him, haven't you?---Yes.
And in that, my client speaks of X engaging in (hobby omitted)?---Yes.
And that he seems settled and happy; would you agree with that?---Yes.”
“MS GOLDTHORP:
All right. Because, as you have said, you don't consider that my client has any significance in X’s life?---That's right.”
“MS GOLDTHORP:
All right. So in terms of the orders that have been made by his Honour throughout these proceedings, do you recall the first orders made in these proceedings were made on 7 July 2014? Do you recall being served with them?---Yes.
Would you agree that you have been served with material and orders through the court from the beginning of these proceedings?---Yes.
You’re not alleging there has been any miscommunication? It’s certainly not something you have said in any of your affidavits?---No.
So you have received material; all right. So once you received the orders of 2 July, you must have been aware - and those orders provided for my client's material, being his initiating application and affidavit and so on to be served on you. You must have been aware, then, that court proceedings had been issued in Victoria, in Melbourne, and that, certainly, a judge had made orders, were you?---Yes.
……
Do you recall being served with the orders of his Honour dated 15 September 2014? These are orders, just to remind you - because there has been a number of them - states at paragraph 6 that the parties have equal shared parental responsibility of the child, that the child live with the mother, and then it provides for the child to spend time with the father for the second half of the September 2014 New South Wales school term holidays. It says:
‘…times to be agreed and, failing agreement, 27 September 2014.’
Do you recall that?---Yes.
And you didn't comply with those orders, did you?---No.
You didn't think you had to?---I probably thought I had to, but when X didn't want to go, I was just – you go into mum mode.
……
So was the mum mode - is that the reason that you didn't comply with the orders?---Because he was so upset and didn't want to go
…Given there was an order of the court and given you knew that my client was eager to spend time with X - obviously he had issued court proceedings - did it occur to you that this might be a good thing, for X to start spending time with his dad again?---No, because he was still frightened and scared and upset and - no.
HIS HONOUR: Why was he frightened and scared then, but not in 2008 and 2009?---He was still always scared, your Honour.
But you made him go in 2008 and 2009, but not 2014?---He was a lot older - he was older and could express himself more, and he opened up about talking about it.
But you didn't make him go?---No
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––
“MS GOLDTHORP:
What about the telephone calls? I can understand your - well, I understand the evidence you're giving, that you say X was afraid to see his dad. But what about telephone calls twice a week? What would have been the harm in that taking place, in answering the phone?---He didn't want to talk to his father on the phone.
All right. So how old was X at this stage? Nine?---Yes.
So a nine year old dictates what happens in his life, does he?---I don't want to upset him.
All right. Well, what if X has to do study for a maths test that he doesn't want to study for and he gets really upset because you make him. What would you do then?---He has never done it, so I can't assume what I would do.
Well, can you imagine as a matter what you might do?---Tell him that he has to study for the maths test.
Sure. So did it occur to you that a nine year old doesn't get to determine whether he speaks to his father? Did you think to say to him: “It's all right. It's just two phone calls, mate. Get on the phone with dad and have a chat." Did that occur to you?---No.
Again, because you don't see the value in Mr Chapple as a father, do you?---No.”
Many of the issues relevant to this topic are also covered by (f) above. I do not want to repeat myself nor cover matters I have already dealt with. However, one further topic that should be addressed is the arrangement for the June/July school term holidays when X was supposed to travel to New South Wales to spend time with his mother. It appears that due to the parties’ poor communication and late discussion of each proposal, the arrangements could not be agreed to. One of the major errors they both fell into, was leaving it very late to try to come to some arrangement, and I have drafted orders to ensure there are adequate time frames and notice in the future to avoid this problem re-occurring. I am satisfied that this recent confusion was a one-off error that is unlikely to be repeated.
(j) any family violence involving the child or a member of the child's family;
In the Family Report dated 16 July 2016 at page 5, paragraph 5, it is reported as follows:
“5…. Ms Michel alleged Mr Chapple “punched her in the stomach, threw her into walls and shoved her when he walked past her.” She said in retrospect she does not understand how she could have stayed, and that Mr Chapple would “threaten me all the time.”
This style of allegation was repeated by Ms Michel in her material and in the Court. She sought to project an image of being fearful of the father.
Whilst I am satisfied that during cohabitation and early post-separation, each parent was a victim of abuse, threats and other criticism by the other, being family violence as defined by the Family Law Act 1975, Ms Michel overstated her role as a victim.
She was cross-examined on this topic by Counsel for the father as follows:
“MS GOLDTHORP:
Fact is, you weren't scared of Mr Chapple then and you're not scared of him now. I put that to you?---Yes, I am.
There's an entry in the New South Wales Police records. It was 5 May 2010. “Person of interest, Mr Chapple. Victim, Ms Michel.” It talks about you receiving some text messages from my client. It says:
‘Victim has been getting numerous text messages from the POI in recent days calling her a bad mother. Text messages were not threatening and nor were there an excessive amount of text messages. The victim informed police that she did not feel intimidated; however, she just did not wish him to contact her.’
Further on:
‘Victim states she's sick of the text messages but not afraid of the person of interest.’
Do you recall that?---No.
All right. So 5 May 2010. You don't recall contacting the police to make complaints about Mr Chapple?---About the text messages, yes.
All right. So do you recall saying to the police:
‘The victim states that she is sick of the text messages but is not afraid of the POI.’
?---I have always told the police I was afraid of him, so - - -
So it's another mistake by the police, is it?---Well, I'm not too sure. I can't remember back six years ago.
Ms Michel, this is extraordinary; you're saying that the - - -?---Not the exact words that were said.
All right. But it's possible that you could have said you were sick of the messages but not afraid of him?---Maybe not afraid of the messages.
No, it says “not afraid of the POI”?---I have always been afraid of him.
So the explanation for the police for this record is, what, police incompetence or - - -?---Maybe I said I wasn't afraid of those messages.
The police notes say that the messages were not threatening, nor were there an excessive amount of text messages. So you called the police in circumstances where you received the messages, but they weren't threatening and there weren't an excessive amount?---There was excessive amount.
Because that's what you would do, wouldn't you, whenever you could: you would call the police about Mr Chapple, try and make his life difficult?---No, not to make it difficult; to stand up for myself.
All right. And throughout the relationship, whenever you had an argument, you would threaten him with that, wouldn't you? You would say, "I'm gonna [sic] call the police. I'm gonna [sic] make a complaint for an AVO"?---The first time I ever called the police was back in 2007/08 when we separated. That was the first time and first time I ever come strong enough to be able to do it.”
Counsel for the Independent Children’s Lawyer also cross-examined the mother on this topic and the following exchange took place:
“MS GLAISTER:
…nonetheless, you send a very young child to spend significant periods of time with him?‑‑‑Yes.
And, really, most of X’s [sic] formative life has been in a relatively shared care arrangement between you and his father?‑‑‑Yes.
So if he was about two when you separated, there was about eight or nine years of this shared care going on?‑‑‑Yes.
And so he had six years to form a pretty close relationship with his dad?‑‑‑Yes.
And given that it was at least shared care, you would have to think that his relationship with his dad was pretty much as close as his relationship as his mum, wouldn’t you think?‑‑‑Yes.
And do you accept that that’s how it was?‑‑‑Yes. Not right from the start, because he only had him from Saturday – Saturday morning to Sunday. Yes.
Not right from the start, but by the – but that certainly developed?‑‑‑Yes.
Okay. And you would agree that during that six-year period when he was having shared care, nothing adverse happened to X? [sic]‑‑‑No.
The – X [sic] wasn’t during that period dwelling on the issues of violence from the past?‑‑‑He would talk about things as he got older. Not so much when he was younger, of course.
Okay. But you just told me that you thought he bonded equally with his father, that he was having at least half time with him ‑ ‑ ‑?‑‑‑Yes. Yes.
‑ ‑ ‑ and that he had a good relationship with him?‑‑‑Yes.”
She also put to the mother a major incident that occurred between them on 10 February 2008 which went as follows:
“MS GLAISTER:
Okay. Now, from the police records, there was a record of an incident occurring on 10 February 2008. And that’s where the father was alleged to have hit you with a tea towel, remember that?‑‑‑Yes.
Okay. There’s a – an entry in the police records that says this:
On Tuesday 30 April 2008 police spoke with the victim in the matter.
Which was you:
Upon speaking with her she stated to police that she will not be attending court for any matter other than the current AVO which is in place for the next 12 months.
So did you attend the police and tell them that?‑‑‑I’m sorry. I don’t recall back to 2000 – that in 2008.
All right. Well, if it’s a – police record, do you agree with me that it’s likely you did?‑‑‑Yes. Yes.
All right. And it says – goes on to say:
Victim also stated that there were assaults from both parties on the day of the incident which was also corroborated from the alleged accused.
So did you tell the police that?‑‑‑If it’s in the report, yes.
Okay:
Both had separated and only speak with each other when arranging child care.
That’s right, isn’t it?‑‑‑Yes.
Due to Police being unable to distinguish who is the accused and victim, nil prosecution will be the result, both parties informed and happy with police action.
So you agree that that’s probably an accurate description of what occurred on the day?‑‑‑Yes.
Okay. So with respect to the events that were reported on – in February 2008, you accept that there were assaults from both sides on that day? Both you and him?‑‑‑In February or April, sorry?
February – incident was reported 10 February ’08. That’s the incident with respect to the flicking of the towel, and the police were going to charge him with an assault, and you attend at the police station and say, “Don’t charge him with an assault. We both were involved in interactions on that day.” And that that’s what the accused said as well?‑‑‑Yes.”
As I indicated earlier, both parents during the period of the failing relationship and early post-separation were often verbally abusive to the other and had bitter arguments that in my view constituted family violence. Moreover, it appears they did not appreciate the negative effect of this on X (and any other children in the household) and they should have been aware that he would have overheard or witnessed their antisocial behaviour.
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
Post-separation the mother sought and obtained three Apprehended Domestic Violence Orders against the father, one of which was subsequently revoked.
Post-separation, the father sought and obtained one Apprehended Domestic Violence Order against the mother’s boyfriend or then partner.
It was common ground that it is or was then a requirement in New South Wales that once a complaint of domestic violence is made to the Police Force, they are required by law to make an application for an Apprehended Domestic Violence Order.
I do not have before me any detailed findings made by the Court in relation to these proceedings, but given the mother resides in New South Wales and the father now resides in Victoria, and their communication has recently improved, I do not expect these parents to be involved in any sort of violence between themselves in the future. It appears to me that they have learned to tolerate each other to the extent that they can communicate in a fashion that benefits X’s best interests.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is imperative that these parties move on and do not seek to undertake further litigation which, by its very nature, is corrosive to their relationship as parents. I will attempt to draft orders which avoids them returning to this Court and would expect that if there are any further problems in their parenting relationship, they would undertake counselling or some form of mediation.
(m) any other fact or circumstance that the court thinks is relevant.
A significant factor in this case is notwithstanding the recommendations in the Family Report, the author in cross-examination moved her position. At one stage she was asked the following question by Counsel for the father:
“MS GOLDTHORP:
Just finally, Ms A, given the cumulative effect of the issues that I’ve put to you today; that is the evidence that has come out since you prepared the report about X’s education, and the evidence I put to you about the mother’s attitude towards the father, and the fact that he has no significance in X’s life, I just want to give you the opportunity, or ask you if your recommendations in terms of where X should live would be different?‑‑‑The most concerning things are what you pointed out so that’s the mother’s attitude about information from teachers, so professionals, and the belief that the father doesn’t contribute anything positive are very concerning. So on that basis, and without some kind of diagnosis I guess of post-traumatic stress, or something like that I probably would reconsider the recommendations.”
Section 60CC(2) Factors
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
In the case of McCall & Clark (2009) FLC 93-405 the Full Court considered this sub-section. At paragraph 109 the Court said:
“The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
It then went on to discuss in paragraph 115 the decision of Mazorski & Albright (2007) 37 Fam LR 518, where the Honourable Justice Brown said the following:
“…I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one.”
At paragraph 170, the Full Court said as follows:
“Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage of a child [sic].”
It then went on to say that there are three possible interpretations of section 60C(2)(a) and concluded that it preferred the interpretation that was called the ‘prospective approach’ but also said that depending on the factual circumstances, the ‘present relationship approach’ may be relevant.
The ‘present relationship approach’ was defined by the Court in paragraph 118 as follows:
“(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”).
The prospective approach, which I prefer, was set out at paragraph 118 as follows:
“(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)
Currently, X has a meaningful relationship with his father and mother. He loves them both and wants an ongoing relationship with them. I will maintain that relationship through these orders. I am very concerned that should X live with the mother, he would not have an ongoing meaningful relationship with both parents. She has failed to do that in the past and it may well be repeated given her attitude to previous court orders and her very negative attitude to and view of the father.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
There is a definition of family violence in section 4AB of the Family Law Act 1975. When one applies that to these facts it is clear that violence has occurred from time to time between the parties historically. Given their geographic barrier and experience of this trial, I expect that it will not be repeated.
Parental Responsibility
The mother was cross-examined on this topic by Counsel for the Independent Children’s Lawyer as follows:
“MS GLAISTER:
The first one says that you should have sole parental responsibility. Do you agree that parental responsibility should now be shared or do you say that you should have sole parental?‑‑‑I would say shared now that he has spent time with his father.Okay. You understand that shared parental responsibility requires the parents to consult with each other with respect to major decisions concerning the child?‑‑‑Yes. Yes.
To take into account the other person’s view?‑‑‑Yes.
And do you think you would be able to do that?‑‑‑Yes. We’ve been doing it in - like, we say, the phone calls, so the text messages have been a good way - or the emails.
All right. Well, be fair to say that these - these troubles didn’t start well. You would agree with me about that?‑‑‑Yes.
Between you and him?‑‑‑Yes.
And he gave evidence that - when I asked him about communication and whether there was a glimmer of hope for the future, you heard him give some evidence to say that he thought that things were relatively better than they had been?‑‑‑Yes.
You agree with that?‑‑‑Yes.”
Pursuant to s.61DA(1) of the Family Law Act 1975 there is a presumption that it is in the best interests of the child for their parents to have equal shared responsibility for that child. However this can be rebutted pursuant to sub-section (2) when there is clear evidence of family violence, and sub-section (4) if not in the child’s best interests.
Both of these parents have been involved in family violence. Both of them historically have acted badly. However, given the evidence of the mother and the father that their communication has improved, that they are now living in different states and will not see each other much if at all, it appears to me they should be given another chance to equally share in the issues of parental responsibility, save that the father should choose what secondary school X is to attend given his role more recently in the child’s education and his proposal seems well considered.
Conclusion
The child, X was born into a dysfunctional relationship between his parents nearly twelve years ago. They separated when he was over 2 years of age and over time until he was around 8 years of age, his parents shared his care equally for a number of years.
From X’s perspective, his father then dropped out of his life for around two years until he was suddenly placed in his father’s care in 2015.
Each parent seeks the role of primary carer of X but the mother has a number of problems with her proposal, which are as follows:
a)Her negative attitude to the father and his role or lack of it in X’s life from 2013 to 2015. I have referred to earlier in this judgment some answers she gave Counsel in cross-examination under sub-paragraph (i) of s.60CC(3) but it is worth repeating here again, given her answers. She said she could not name any good things about Mr Chapple that he provided to X, that he had nothing to offer and that there are no redeeming features in relation to Mr Chapple. She described him as a very violent man, a very rude and arrogant person that had no strengths. She clearly saw no value in X maintaining a relationship with his father after he left New South Wales in 2013.
That type of attitude erodes my confidence that she would promote a relationship between her son and his father in the future. Given her answers I seriously doubt whether X would have a meaningful, satisfying and ongoing relationship with his father should he reside primarily in the care of the mother.
In my opinion, her attitude towards the father was further reflected in the mother’s non-compliance with my earlier orders for X to communicate with and spend time with his father. I do not accept her evidence that X was scared, frightened or upset and would not communicate with or see his father. The mother was cross-examined on this topic by Counsel for the Independent Children’s Lawyer as follows:
“MS GLAISTER:
And my learned friend has been with you – been through with you the fact that even though court orders were made, you didn’t comply with the orders?‑‑‑Yes.
And knowing his Honour as I do, I’m sure that when you were appearing in court either by in person or by video link, that his Honour would have taken grant pains to explain to you that orders are serious – it’s a serious matter when orders are made?‑‑‑Yes
The judge told you that?‑‑‑Yes.
And the judge would have told you that you were required to comply with his orders?‑‑‑Yes.
And I suggest to you that when you were talking to the judge in court, you would have reassured him that, “Yes. I will comply with your orders, your Honour.” Correct?‑‑‑Yes.
And you just thumbed your nose at that promise that you gave to him?‑‑‑Yes.”
b)The mother’s attitude to X’s learning problems and education generally, also troubles me. The evidence is clear that in May 2010, the school counsellor employed at (omitted) Primary School wrote to the mother saying as follows:
“Dear Ms Michel,
Thank you discussing X’s progress with me. The counsellor who saw him felt a speech and language assessment was needed. X seemed happy and has friends But he doesn’t always understand what the teacher says, and he might find learning to read hard if he doesn’t get help with his speech.
Please ring (omitted) to arrange a Language Assessment with (omitted) Health. This is a free service which gives us information about how he expresses and understands spoken language and will help us teach him. They will see you at a nearby Community Health Centre such as (omitted) (opposite (omitted)). There is a long wait for the appointments so it is good to phone soon. You can also ring any of the private Speech Pathologists in the phone book who will charge a fee.
It’s a good idea to also book a Hearing Assessment on (omitted) in case this is a factor.
Please tell the staff when you ring that the counsellor (Ms N) felt X showed articulation problems, disorganised expressive language and poor understanding of receptive language. Also that his teacher has concerns about his following instructions and explaining his answers.
Thanks for making these phone calls which will help X. I’ll give you a ring in a few weeks to see how its [sic] going.
Regards,
Mr M, School Counsellor, (omitted) PS.”
This letter was marked as Exhibit F6 and whilst the mother may complain that the father did nothing about this as well, her problem was that she was clearly the contact parent as far as the school was concerned and the school did in fact contact her about the problems they were observing in relation to X’s education. I am satisfied that the school not only contacted her but that she did nothing or very little about it, and she did not convince me that she was proactive as a parent with these problems.
This was underlined by a further document from the same school which was marked Exhibit F5. This was an undated note from one staff member to another being addressed to Mr M which detailed the following:
“Hi Mr M,
I am still concerned that X’s mum has still not had his hearing tested despite several meetings with me during the year. She does not seem to see the urgent need for X’s language to be assessed.
It is very evidence that X is still struggling to follow all classroom instructions and finds it difficult to complete any tasks without 1:1 assistance.
Is it possible for you to give her a ring and follow up on the hearing test? It is [sic] also possible for you to ring Area Health to see where he is on the waiting list or am I allowed to do this? Are there any other avenues for them to access speech therapy other than private?
Mum and dad are separated, I am trying to arrange a meeting to get them together to try and express how worrying X’s language difficulties are and how they are impacting on his school life.
He needs intervention and we have reached a time in the year where it is becoming more noticeable than ever how far behind he is compared to his classmates in the areas of expressive and expressive language. It has recently impacted on his safety at school as he did not follow an instruction.
Sorry for the notes Mr C but I am not here on Fridays some [sic] sometimes find it hard to catch you. Will speak to you on Monday.
Thanks Ms N.”
This memo is consistent with the earlier letter (F6) dated 4 May 2010 and I was very concerned that the evidence suggests that the school that the child was then attending was seeking to have the mother ensure X attended for speech and language assessment and yet the mother failed to do this. I do not accept her evidence she knew nothing of the request or the letter dated 4th May 2010.
There was a further document in relation to X’s educational issues which was F7 the psychological report prepared by a Ms L through the Victorian Education and Training Department being an assessment of X on the 3rd of November 2015. The most relevant parts of this report are as follows:
“X’s current classroom teacher, Ms R, also provided information on how X presents in class. Ms R noted that it appears that X has difficulties with processing auditory information. She said that X doesn’t seem to listen in class, doesn’t remember what he is told, has trouble following instructions and directions, requires information to be repeated to him, mispronounces words, and has difficulty sounding out words.
Ms R also noted that there may be some deficits in X’s language abilities. She said that X is slow to respond, and that he demonstrates poor articulation, limited and immature speaking and listening vocabulary, that he occasionally uses the incorrect verb tense, his sentences can seem jumbled at times, he dislikes participation in class discussions, and he demonstrated difficulties with inferences, jokes and double meanings.
With regards to written information, Ms R noted that X demonstrates a number of difficulties. She said that he demonstrates poor writing posture, poor sequencing of movements of letter formation, that his writing varies in size, upper and lower case and wanders off the lines. She said that he has problems copying especially from, that he is slow to complete his work, and that he has difficulty expressing his ideas in writing. With regards to spelling, she said that X has difficulty spelling out words, and that he does not use syntactic, semantic or grapho-phonic clues.
When asked about X’s behaviour in class, Ms R stated that X is easily distracted and that he demonstrates a short attention span. She said he can be impulsive at times, and that he is constantly moving. She also said that he can occasionally be disruptive in class.
……
Ms R stated that X's On Demand testing has indicated that he is currently at a Grade 3 level. She is concerned that X may be having difficulties with processing information.
… …
Assessments
Cognitive Assessment
Current Assessment Presentation
The current assessment took place at (omitted) Primary School using the Wechsler Intelligence Scale for Children – Forth [sic] Edition (WISC-IV). The assessment was conducted in a room which was relatively quiet and free from distractions, and the assessment session lasted just over one hour.
……
Overall, the presented results can be considered to be a valid and reliable representation of X’s cognitive functioning at the time of assessment.
……
Summary and Recommendations
X is in Grade 5 at (omitted) Primary School. He was referred for intellectual assessment as his teacher was concerned about his processing of information and his academic progress. A cognitive assessment was conducted in order to evaluate X’s strengths and weaknesses.
X's Full Scale IQ was found to be within the Borderline range. However, there were significant differences between his composite scores, and therefore his FSIQ is not the best indicator of his overall abilities. Rather, attention should be paid to his performance in each of the composite areas.
X's Processing Speed fell within the Borderline range. Processing Speed involves the ability to perform relatively simple cognitive tasks automatically (i.e., quickly and without conscious deliberation), particularly when under pressure to maintain focused attention. Deficits in Processing Speed may be influenced by attention. Possible implications include: processing information rapidly, completing assignments within time limits, taking timed tests, making rapid comparisons between and among bits of information, and copying.
Recommendations to help X with his processing speed:
o Provide more time to complete assignments
o Reduce quantity of work in favour of quality
o Limit or structure copying activities
X's Verbal Comprehension was also found to be within the Borderline range. Indeed, his difficulties with Processing Speed would have an impact on his comprehension, which may be one explanation for why his Verbal Comprehension Index was also below the level that would be expected for his age. Verbal Comprehension involves expressive vocabulary, ability to grasp the relationships among word meanings, and knowledge acquired from general experience within the mainstream culture. Possible implication include: learning vocabulary, answering factual questions, comprehending oral and written language, acquiring general knowledge and knowledge in content areas, and using prior knowledge to perform activities and understand new concepts.
Recommendations to help X with his Verbal Comprehension:
o Relate new information to acquired knowledge
o Assess prior knowledge before introducing new topics and concepts
o Pre-teach relevant vocabulary or background knowledge
o Provide specific vocabulary instruction such as the meaning of common prefixes, suffixes and root words
o Incorporate interests and prior knowledge areas into instructional activities
o When presenting directions and discussing concepts, use vocabulary that is understood by X
o Refer X for an assessment by a Speech Pathologist
X's Working Memory was found to be within the Low Average range. Working Memory involves the ability to hold information in mental awareness and use it within a few seconds. It may be influenced by attention. Possible implications include: following directions, remembering information long enough to process it for understanding, recalling sequences, memorizing factual information (e.g., math facts), listening to and comprehending lengthy discourse, taking notes.
Recommendation to help X with his Working Memory
o Keep oral directions short and simple
o Ensure instructions are understood; have X paraphrase the instructions back to you
o Provide compensatory aids (e.g., write directions, procedures and assignments down for him)
o Provide overlearning, review and repetition
o Teach memory strategies (e.g., chunking, verbal rehearsal, visual imagery)
X's Perceptual Reasoning was within the Average range indicating that he can adequately solve problem [sic] when the information provided is of a visual nature. This indicates that visuals should be used as much as possible to help X learn and process information.
It was a pleasure to assess X and I wish him all the best for his future schooling. If there are any queries regarding this assessment, please do not hesitate to contact me.
Ms L
Psychologist
(omitted)
03/11/2015”
This document clearly details problems that probably have been long standing. They have negatively impacted on X and him achieving a satisfactory education and lifestyle. Notwithstanding the mother was advised by his school in 2010 it appears she did very little or nothing. If she was a competent parent I would have expected her to be aware of this or alert to some of his problems before she was even advised by the school, but to effectively do nothing after the school advises you, indicates to me that in her care, his opportunities to have a full and proper education would be frustrated by her lack of concern.
This lack of concern was underlined further when the mother gave evidence about X’s current school. She has known that he has attended that school for many months and at best has only contacted it once to inquire about his progress. This is not indicative of a parent concerned about her child’s education. To say that she discussed it regularly with X, (and not his teachers), indicates to me that she only gives token effort to being concerned about his educational welfare.
c)Historically when the mother had care of X he changed schools far too frequently. The evidence was that he attended (omitted) Primary School, (omitted) Primary School, (omitted) Public School (in Sydney) and then again (omitted) Primary School. This cannot promote his education to have so many changes and to disrupt his routine. She may repeat this in the future.
d)The evidence indicates to me that currently X is in a caring, stable relationship living with his father, step-mother and her daughter. Moreover, in cross-examination the mother conceded that X seems settled and happy with his current living arrangements. It is my view that he is currently in a stable routine that he has not always enjoyed in the past when in the care of the mother.
e)The proposals of the mother seem to be uncertain and lack substance. For example, she talked of returning to work next year subject to her own mother’s health and that X will be cared for pre or post-school by one of her three sisters or brothers-in-law should she return to full time employment. The difficulty with this is that none of those people are on affidavit. I do not know who they are, what their capacity is to care for X and whether in fact they want to undertake that role.
Further, I have little information about the school he is proposed to attend in New South Wales in 2017 should he reside with the mother. There is no substance to this proposal nor other aspects of her care of the child should she be the primary carer, which makes me concerned about whether it is well planned and really would promote the best interests of this child.
f)On Day 4 of trial, the Family Consultant Ms A gave evidence and I asked her the following:
“His Honour:
One of the last questions for counsel for the father was the cumulative effect of the information she has provided to you, and the effect on your recommendations, and you said you would reconsider your recommendations. What do you say – do you have fresh recommendations, or do you now say you’re uncertain to make any, or do you have a particular view one way or the other?.... ---I think the major concern I have really is from the evidence and the way it has been put today is the mother’s reluctance to accept professional advice, and that’s teachers, the court, and medical professionals. The concern about that is that it indicates that – so when a person can’t do that, that they’re unable to learn, and that has implications for parenting and, I guess ‑ ‑ ‑
In the long term, yes?‑‑‑And in this matter in terms of X’s need to have a relationship with his father, because that’s an important parenting issue. And even if it was accepted – and I’m not saying that it did occur. But if there was family violence, it’s still important for a child to have a relationship with that parent and for opportunities for both parents to learn and grow. So that’s the major concern, and that’s the main reason I would change my recommendations in the matter.
When you say “change them”, change it to what?‑‑‑I do think that it – X should probably live with his father, and basically that the father’s proposal be adopted, and that Ms Michel needs to learn from this, I guess, that when there are orders made and they’re firm orders about time that she needs to abide by those because X is the person who suffers in the end. It was my view that X very much misses his mother and very much wants – wanted to be with her, I think. That was subjective in the way that I described that I came to that. But part of the adult of the parenting role is to abide by the rules and to teach him that as well. And so that’s the main concern I have now, and that would be the reason for changing the recommendations. There are concerns too about if it’s not accepted that he has learning needs then things won’t happen at home that might support what the school does in relation to that. So, again, you need to be able to take advice from professionals to do that….”
I accept the recommendation of the expert that in all the circumstances X should live with his father, and I note that the Independent Children’s Lawyer also supports X remaining in the primary care of his father.
Overall, it is my assessment that the best interests of X are best promoted by him remaining in the primary care of his father.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Curtain
Date: 2 February 2017
Key Legal Topics
Areas of Law
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Appeal
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Duty of Care
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Negligence
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Causation
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Damages
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4
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