Danner and Maddax
[2016] FCCA 68
•12 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DANNER & MADDAX | [2016] FCCA 68 |
| Catchwords: FAMILY LAW – Parenting – with whom the child of the relationship should live – serious lack of communication between the parents – whether trust and respect can be re-established – consideration of Family Report concerns and recommendations – whether either parent has adversely influenced the child – findings as to best interests of the child. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1), (2) & (3), 60CC(2), (2A) & (3), 61C, 61D(1) & (2), 61DA, 65DAA, 65DAC, 65DAE |
| Lansa & Clovelly [2010] FamCA 80 Chappell & Chappell (2008) FLC 93-382 Heath & Hemming (No 2) [2011] FamCA 749 Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010) MRR v GR (2010) 240 CLR 461 |
| Applicant: | MS DANNER |
| Respondent: | MR MADDAX |
| File Number: | BRC 5778 of 2014 |
| Judgment of: | Judge Coker |
| Hearing date: | 1 October 2015 |
| Date of Last Submission: | 30 October 2015 |
| Delivered at: | Townsville |
| Delivered on: | 12 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bunning |
| Solicitors for the Applicant: | MTM Lawyers |
| Counsel for the Respondent: | Mr Cooper |
| Solicitors for the Respondent: | Emerson Family Law |
ORDERS
All previous Orders be discharged.
That the child, X born on (omitted) 2010, live with the Mother.
That the Mother shall have sole parental responsibility for all long term decisions relating to the child and the Mother shall advise the Father about the decision to be made in regards to the child and a process for same shall be as follows:
(a)All communication shall be by email between the Mother and Father;
(b)In the event the Mother wishes to make the decision she shall email the Father 28 days prior to the making of that decision setting out the decision which she is to make, the reasons she wishes to make it and any other options (apart from the one she has elected to make) in relation to the decision that has to be made;
(c)The Father shall reply within 7 days from the date of the email as to his opinion concerning the decision to be made, including any counter-proposal which he wishes to make;
(d)The Mother shall reply within a further 7 days explaining to the Father any further opinion or thoughts that she has in relation to his correspondence in relation to the issue;
(e)The Mother is however at liberty to make the final decision and shall communicate the decision made to the Father within 7 days of making the decision, by email (and in the cases of medical emergency as soon as is reasonably practicable after the decision is made).
That the Applicant Mother be permitted to move with the child from the (omitted) to a suburb within the normal catchment area of the (omitted) Primary School, (omitted).
That the child shall be enrolled to attend (omitted) Primary School at (omitted) commencing within 7 days of the date of this Order.
That the child shall spend time with the Father at all such times as may be agreed between the parents and failing agreement, as follows:
(a)On every alternate weekend from after school on Friday until before school on Monday or Tuesday if it is a public holiday or pupil free day, provided that the Father shall be responsible for collecting and returning the child from/to (omitted) Primary School;
(b)For one half of the end of Terms 1, 2, 3 and 4 gazetted Queensland school holidays, being the first half with the Father in odd numbered years and the second half in even numbered years, and the first half with the Mother in even numbered years and the second half in odd numbered years, with changeovers to be at 5:00pm on Friday.
That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:
(a)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;
(b)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS CONCLUDE WITH THE EASTER LONG WEEKEND THEN:
(c)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday which falls 8 days later;
(d)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday falling 8 days after the commencement of the holidays until 6.00pm on the Monday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(e)The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;
(f)The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(g)The first half of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(h)The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
That should the child not be in the care of the Father on Father’s Day, then the Father is to spend time with the child from 9.00am until 5.00pm and should the child not be in the care of the Mother on Mother’s Day, then the Mother is to spend time with the child from 9.00am until 5.00pm, and the parent to spend time with the child is to be responsible for the collection and return of the child.
That the parent not having the child in their care on the child’s birthday, shall spend time with the child, if this day falls on a school day, from after school until 6:00pm and if on a non-school day from 12 noon until 5:00pm;
That should the parties be in the same locality at Christmas, then the parent not having the child in their care shall have the opportunity to spend time with the child from 3:00pm Christmas Day to 5:00pm Boxing Day.
Changeovers
That for all visits which commence and conclude at school, the Father shall collect and return the child punctually at (omitted) Primary School and for all visits outside of school times and unless otherwise provided or agreed in writing, handovers shall occur at the McDonald’s Restaurant at the (omitted) Service Station.
Telephone Time
That the Mother and the Father shall be able to Skype with the child between 5:00pm and 5:30pm on Wednesday and each alternate Friday at 5:00pm, or telephone the child during these designated times when the child is not in their care and if Skype is not available then the parent will be able to communicate with the child by telephone.
Passports and Travel
That the parents do all such acts and things to maintain current (country omitted) and Australian Passports for the child, with the Mother to hold the Passports.
That each parent shall provide the other with not less than two months prior written notice of their intention to travel overseas with the child, with such travel to be limited to school holiday periods unless otherwise agreed.
That notwithstanding Order 14 herein, the Mother be permitted to take the child on an overseas trip to (country omitted) in August 2016 to attend a family wedding. The Father’s time with the child shall be suspended during that period and the child shall communicate with the Father by Skype during the period of the overseas trip.
That the travelling parent shall provide to the other parent an itinerary of the proposed travel, including flight details, the country or countries the child will visit, their principal address and a contact number.
Other Orders
That unless otherwise arranged in advance with the Mother, the Father shall not attend at the child’s school outside of his scheduled times, however, each parent is at liberty to attend sports carnivals, speech nights and concerts to which parents are normally invited.
Each parent shall keep the other advised of any illness, accident or emergency affecting the child and notify the other of any such incident, including the name and details of any treating doctor and hospital as soon as practicable.
That neither parent shall involve the child in discussions pertaining to any arrangement, dispute or other matters relating to these Orders, nor permit any other person to do so.
Each parent shall encourage the child to go to sleep and sleep in her own bed and ensure that the child has privacy when toileting and showering.
That the parties shall email each other to exchange relevant information pertaining to the child and that the parents shall only communicate directly with each other by telephone for any urgent matters affecting the child.
That neither parent shall denigrate the other parent or that parent’s family or culture to or in the presence of the child, nor permit any other person to do so.
Each parent shall keep the other advised at all times of a telephone contact number, email address and their residential address and notify any proposed change not less than seven days in advance.
This Order constitutes an Authority to the child’s school and Doctors to provide either parent with relevant information pertaining to child at that parent’s expense from time to time.
That all other applications be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Danner & Maddax is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
BRC 5778 of 2014
| MS DANNER |
Applicant
And
| MR MADDAX |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION & APPLICATIONS:
These proceedings relate to orders sought with regard to the parenting of a young child, X, born (omitted) 2010. X is the daughter of Ms Danner, whom I shall refer to as the mother, and Mr Maddax, whom I shall refer to as the father.
The mother’s application in these proceedings was filed on 10 July 2014. In that application, she detailed the orders that she proposed with regard to the parenting of X. They could be summarised as follows:
·that all previous parenting orders and parenting plans be discharged;
·that the parents have equal shared parental responsibilities for major long-term determinations in relation to the child;
·that the child live with the mother;
·that the child spend time with the father from 5 pm Friday to 5 pm Sunday in week 1 and from 9 am Friday to 5 pm Friday in week 2;
·that changeovers occur at the (omitted) Contact Centre;
·that the parties use a communication book for the exchange of information regarding the health and general wellbeing of the child;
·that neither party attend at the child’s school or kindergarten unless otherwise agreed between the parties;
·that the parents exchange relevant information in relation to the child, as well as with regard to their own circumstances;
·that the orders authorise any educational or medical provider to provide each parent with information in relation to the child;
·that should the child become distressed whilst in the father’s care that the father facilitate a telephone call to the mother so as to enable the mother to seek to calm the child;
·that during the time that the child is with either parent they will respect the privacy of the other parent, speak respectfully in reference to the other parent, and not denigrate or insult the other parent or members of the other parent’s extended family.
The mother, more particularly, outlined her position in relation to this matter when filing her case outline at the commencement of the hearing. In the case outline, the mother more specifically detailed the precise terms of the orders that she sought in relation to the parenting of the child. That case outline, filed on 25 September 2015, was more extensive and took into account, at least to some extent, various factors that had arisen since the filing of the initiating application, including particularly recommendations contained within the family report which was prepared in relation to this matter by Ms R, the terms of the orders sought by the mother, are as follows:
1.All previous Orders be discharged.
2.That the child X born on (omitted) 2010 lives with the Mother.
3. That the Mother shall have sole parental responsibility for all long term decisions relating to the child and the Mother shall advise the Father about the decision to be made in regards to the child and a process for same shall be as follows:
(a)All communication shall be by email between the Mother and Father;
(b)In the event the Mother wishes to make the decision she shall email the Father 28 days prior to the making of that decision setting out the decision which she is to make, the reasons she wishes to make it and any other options (apart from the one she has elected to make) in relation to the decision that has to be made;
(c)The Father shall reply within 7 days from the date of the email as to his opinion concerning the decision to be made, including any counter-proposal which he wishes to make;
(d)The Mother shall reply within a further 7 days explaining to the Father any further opinion or thoughts that she has in relation to his correspondence in relation to the issue;
(e)The Mother is however at liberty to make the final decision and shall communicate the decision made to the Father within 7 days of making the decision, by email (and in the cases of medical emergency as soon as is reasonably practicable after the decision is made).
4. That the Applicant Mother be permitted to move with the child from the (omitted) to a suburb within the Brisbane region.
5. That the child shall be enrolled to attend (omitted) Primary School at (omitted) commencing in 2016.
6. That the child shall spend time with the Father at all such times as may be agreed between the parents and failing agreement, as follows:
Weekend Time
(a)On every alternate weekend from after school on Friday until before school on Monday or Tuesday if it is a public holiday or pupil free day, provided that the Father shall be responsible for collecting and returning the child at (omitted) Primary School;
Or in the alternative,
(b)On every alternate weekend from after school on Friday until 5:00pm on Sunday afternoon with the Father to collect the child from (omitted) Primary School at the commencement and return the child, together with her school bag, its content and full school uniform, to the Mother at the McDonald’s Restaurant at the (omitted) at the conclusion of the weekend.
Special Days
(c)For every Father’s Day from 5:00pm on the previous day until 5:00pm on Sunday with handovers to occur at the McDonald’s Restaurant at the (omitted), providing that the child shall spend every corresponding Mother’s Day with the Mother such that the child shall spend time with the Mother between 5:00pm on the previous day until 5:00pm on Mother’s Day.
(d)On the child’s birthday, if this falls on a school day from after school until 6:00pm and if on a non-school day from 12 noon until 5:00pm.
Christmas/New Year
(e)From 5:00pm Christmas Eve until 5:00pm Christmas Day in 2015 and every odd numbered year and from 5:00pm Christmas Day to 5:00pm on 2 January in every even numbered year.
School Holidays
(f)For the first half of the gazetted Queensland school holidays in March/April June/July and September/October in all odd numbered years and for the second half in all even numbered years, with changeovers to be at 5:00pm on Friday, save that in the September/October school holidays 2016 the child shall spend the entire period of the school holidays with the Father; and
(g)For the end of year gazetted Queensland school holidays for the first week of the holidays in every odd numbered year and:
a.For a further two week period in mid-January in every odd numbered year commencing at 5:00pm on 2 January and concluding at 5:00pm on 16 January; and
b.For a further two week period in even numbered years such commencing at 5:00pm on 9 January and concluding at 5:00pm 23 January.
Changeovers
7. That for all visits which commence and conclude at school, the Father shall collect and return the child punctually at (omitted) Primary School (and in 2015 changeover when the child is attending school shall occur at the (omitted) State School when the child is at school and when not at school at the McDonald’s Restaurant, (omitted)) and for all visits outside of school times and unless otherwise provided or agreed in writing, handovers shall occur at the McDonald’s Restaurant at the (omitted).
Telephone Time
8. That the Father shall be able to Skype with the child between 5:00 and 5:30pm on Wednesday and each alternate Friday at 5:00pm, or telephone the child during these designated times only if the Mother cannot facilitate Skype.
Passports and Travel
9. That the Parents do all such acts and things to maintain current (country omitted) and Australian Passports for the child, with the Mother to hold the Passports.
10.That each parent shall provide the other with not less than two months prior written notice of their intention to travel overseas with the child, with such travel to be limited to school holiday periods unless otherwise agreed.
11.The Mother be permitted to take the child on an overseas trip to (country omitted) in August 2016 to attend a family wedding. The Father’s time with the child shall be suspended during that period and the child shall communicate with the Father by Skype during the period of the overseas trip in addition:
12.That the travelling parent shall provide to the other parent an itinerary of the proposed travel, including flight details, the country or countries the child will visit, their principal address and a contact number.
Other Orders
13.That unless otherwise arranged in advance with the Mother, the Father shall not attend at the child’s school outside of his scheduled times, however, each parent is at liberty to attend sports carnivals, speech nights and concerts to which parents are normally invited.
14.Each parent shall keep the other advised of any illness, accident or emergency affecting the child and notify the other of any such incident, including the name and details of any treating doctor and hospital as soon as practicable.
15.That neither parent shall involve the child in discussions pertaining to any arrangement, dispute or other matters relating to these Orders, nor permit any other person to do so.
16.Each parent shall encourage the child to go to sleep and sleep in her own bed and ensure that the child has privacy when toileting and showering.
17.That the parties shall email each other to exchange relevant information pertaining to the child and that the parents shall only communicate directly with each other by telephone for any urgent matters affecting the child.
18.That neither parent shall denigrate the other parent or that parent’s family or culture to or in the presence of the child, nor permit any other person to do so.
19.Each parent shall keep the other advised at all times of a telephone contact number, email address and their residential address and notify any proposed change not less than seven days in advance.
20.This Order constitutes an Authority to the child’s school and Doctors to provide either parent with relevant information pertaining to child at that parent’s expense from time to time.
21.That all other applications be dismissed.
The father’s response was filed on 18 July 2014. The response detailed the final orders that were sought by the father, and again can be summarised as follows:
·that the parents have equal shared parental responsibility for the child in relation to decisions to be made with regard to the child’s care, welfare and development;
·that the parents have sole responsibility for decisions to be made in relation to the day-to-day care, welfare and development of the child when the child is in their care;
·that the child live with the father and spend time with the mother as may be agreed, and failing agreement, from the conclusion of kindergarten or school on a Tuesday until the commencement of kindergarten or school on a Wednesday in the first week, and from the conclusion of kindergarten or school on a Wednesday in the second week until the commencement of kindergarten or school on a Monday in the following week;
·that the parents share the school holiday periods on a week-about basis, including where such holiday periods are greater than two weeks in length;
·that the child spend time with each of the parents on special days, including Christmas Eve and Christmas Day, Mother’s Day, Father’s Day, and birthdays;
·Telephone communication with the parent with whom the child is not living or spending time occur at all reasonable times;
·Arrangements in relation to collection and return of the child from one parent to the care of the other;
·Exchange of information between the parents in relation to the issues relevant to the child and authorisations provided to medical and educational providers for the child to enable each parent to obtain information in relation to the child’s health or wellbeing;
·Exchange of information between the parties relating to information relevant to the child, including, particularly, information as to each party’s residence, telephone numbers and other information with regard to each parent’s health and wellbeing;
·that each parent be restrained from denigrating the other parent to or in the presence or hearing of the child and ensuring that the child does not remain in the presence or hearing of other persons behaving in such a manner;
·that each parent be permitted to take the child on an overseas holiday during their respective holiday periods, subject to provision of information, as well as details with regard to a general itinerary, provision of copies of prepaid tickets and the like; and
·that should the parties find themselves involved in dispute, then family dispute resolution be facilitated prior to any further litigation.
The father also, in his case outline filed prior to commencement of the hearing, detailed with some considerable particularity the minutes of final orders that were sought by him in relation to arrangements with regard to parenting. Those orders, numbered 1 through 15, were in these terms:
1. That the Father have sole parental responsibility for X born (omitted) 2010 (“The Child”).
2. That notwithstanding the provisions of Order 1, the Mother shall be responsible for the daily care, welfare and development of the child when the child is living or spending time with her.
3. That the child will continue to attend (omitted) State School.
4. That the Mother is restrained from relocating the residence of the child, when the child is in her care, to any location further than 10 kilometres from the (omitted) State School.
5. That the child will live with the Father.
6. That the child shall spend time with the Mother during school term each week from after school Friday until before school on Tuesday the following week.
7. That the child will spend time with her parents for school holiday periods as follows:
a. The first half of the Autumn, Winter, Spring and Summer school holidays in even numbered years with the Father and in odd numbered years with the Mother; and
b. The second half of the Autumn, Winter, Spring and Summer school holidays in odd numbered years with the Father and in even numbered years with the Mother; and
c. School holidays shall be deemed to commence at close of school on the day of the school term finished and conclude at 9.00am on the day the child returns to school. The number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Mother shall retain the additional night.
8. That the child shall spend time with the parents on special occasions as follows:
a. For Christmas Day:
i.From 5.00pm Christmas Eve until 2.00pm Christmas Day in even numbered years with her Father and in odd numbered years with her Mother; and
ii.From 5.00pm Christmas Day until 2.00pm Boxing Day in odd numbered years with her Father and in even numbered years with her Mother; and
b. On the child’s birthday the child shall spend time with the parent she is not living with on the day as follows:
i.If a school day, from after school until 6.00pm;
ii.If a non-school day, from 1.00pm until 6.00pm; and
iii.With that parent to be responsible to collect and return the child.
c. With her Father on Father’s Day if not already in the Father’s care from 9.00am until 5.00pm with the Father to be responsible to collect and return the child.
d. With her Mother on Mother’s Day if not already in the Mother’s care from 9.00am until 5.00pm with the Mother to be responsible to collect and return the child.
9. The child shall communicate with her parents on the telephone at such times as the child reasonably requests.
Collection and Delivery
10. That except as otherwise agreed the Father and Mother shall collect the child from and return her to school during the times the child is in their respective care.
11. That if the child is not attending school:
a. The child shall be collected by the Father or his nominee from the Mother or her nominee at the commencement of his time with the child at McDonald’s Restaurant in (omitted) or any other location both parents agreed to.
b. The child shall be collected by the Mother or her nominee from the Father or his nominee at the commencement of her time with the child at McDonald’s Restaurant in (omitted) or any other location both parents agreed to.
Travel out of the Country
12. That when the child is spending time with a parent during school holidays, that parent shall be at liberty, during the school holiday time take the child on holidays outside of the Commonwealth of Australia and in relation to this:
a. The travelling parent shall provide the other parent with a copy of their itinerary for the trip including but not limited to departure and return times, contact telephone numbers for travelling parent and the child and the address at which they will be predominantly based at least 28 days prior to scheduled departure.;
b. Upon receiving this information the other parent shall forthwith release the child’s passport;
c. That travelling parent shall then provide to the other parent a copy of the return air tickets for the child; and
d. During the holiday the travelling parent shall arrange for the child to telephone or Skype the other parent on at least one occasion each week.
13. That each parent shall do and sign all things necessary and shall share the cost equally to renew the child’s (country omitted) and Australian passports forthwith when they expire.
Exchange of Information
14. That the Mother and Father shall:
a. Keep the other parent informed at all times of their residential address and contact telephone number;
b. Keep the other parent informed of the names and address of any treating medical or other health practitioners that treat the child and authorise those practitioners to provide the other parent with information that they are able to lawfully provide about the child;
c. Inform the other parent as soon as reasonably practicable of any medical condition or significant illness or health condition suffered by the child. This Order authorises any treating medical practitioners to release the child’s medical information to the other parent.
d. That the parents authorise by this Order the schools attended by the child to give each parent information about the child’s educational progress and other school related activities and supply then with copies of school reports, photographs, certificates and awards obtained by the child at that parent’s cost.
15. That during the child spends with either parent, that parent shall:
a. Respect the privacy of the other parent and not question the child about the personal life of the other parent;
b. Speak of the other parent respectfully; and
c. Not denigrate or insult the other parent in the presence of hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing of or presence of the other child.
It should be noted, however, that the father’s proposed order 6 was to the effect that the child spend time with the mother during school terms each week from after school Friday until before school on Tuesday of the following week. That would result in the child spending four nights each seven nights in the care of the mother. However, the father certainly clarified in his evidence that that was an incorrect statement as to his proposals with regard to what should be occurring with regard to the parenting of the child, and, in fact, counsel for the father acknowledged that it was an error on the part of the solicitor and not the father.
The father’s accurate position in relation to this matter was, in fact, detailed in the application in a case which was filed by the father on 25 June 2015. There, the father detailed what was proposed by him in relation to the mother’s time to be spent with X more precisely. The terms of that proposal were as follows:
That the mother and father share the care for the child equally from the date of this order as following:
(a)Week 1:
(i)The mother collect the child from school on Monday and return her to school on Tuesday morning;
(ii)The father collect the child from school on Tuesday morning and return her to school on Wednesday morning; and
(iii)The mother collect the child from school on Wednesday afternoon and she remains with the mother until the following Monday morning.
(a)Week 2:
(iv)The father collect the child from school on Monday afternoon and return her to school on Tuesday morning.
(v)The mother collect the child from school on Tuesday afternoon and return her to school on Wednesday morning.
(vi)The father collect the child from school on Wednesday afternoon and she remain with the father until the following Monday.
It was not exactly clear whether the proposals in relation to holidays and other arrangements was as reflected in the case outline filed by the father on 24 September 2015 or as detailed in the application in a case filed on 25 June 2015. Certainly there were differences between what was proposed in those two documents. Out of an abundance of caution I note proposed orders 4(c)-(k), contained within the application in a case filed 25 June 2015 as follows:
a. The first half of each school holidays the child shall spend with the mother;
The second half of each school holidays the child shall spend with the father;
b. Every even year the child shall spend Christmas with the mother;
c. Every odd year the child shall spend Christmas with the father;
d. Every even year the child shall spend Easter with the father;
e. Every odd year the child shall spend Easter with the mother;
f. On the mother’s birthday the child shall spend time with the mother from 9am to 5pm.
g. On the father’s birthday the child shall spend time with the father from 9am to 5pm.
h. If the child’s birthday falls into the mother’s care the father shall spend time with the child from 2.30pm to 6pm.
i. If the child’s birthday falls into father’s care the mother shall spend time with the child from 2.30pm to 6pm.
As can be seen from the introduction that preceded, it is clear that the parties have been at loggerheads. In particular, it would seem unfortunately to be the case, that the circumstances of the relationship between the mother and the father has deteriorated from that which originally had existed. The parents had had a far more courteous relationship subsequent to their separation than was in fact the case by the time the matter came to trial. In fact, both the mother and father identified there as being significant trust issues that had arisen between each of them by the time the matter came to hearing.
That, in part, had arisen from a lack of communication of any real or substantial nature between the parents in more recent times, as well as suggestions by each parent that the other had unilaterally held X over and prevented the other parent from seeing or spending time with the child, as well as there being concerns expressed by each parent that the other parent was acting in a manner which reflected a lack of appreciation of any real intent on the part of that parent to engage with the other parent in the decision-making process or, more particularly, to seek to foster a relationship with the other parent.
At the commencement of the hearing, I was advised by the legal representatives for the parties that neither the mother nor the father required other witnesses for the purposes of cross-examination. Certainly, however, from the mother’s perspective she still sought to rely upon the evidence of Ms M and Ms L. Their evidence was contained within their affidavits filed on 17 September 2015. At least insofar as I am able to do so, I will appropriately comment upon their evidence in due course.
Each, however, sought more specifically to rely upon their own case and, of course, to challenge the evidence of each other by way of cross-examination. Each also indicated an intent to cross-examination of the family report writer, Ms R. I shall come to her evidence a little later in these reasons.
THE SUPPORTING WITNESSES:
Insofar as the uncontested evidence is concerned, I note that Ms M in her affidavit of 17 September 2015 noted that she had shared accommodation with the mother, father and X for a period of about four months in the first half of 2011. It is noteworthy that the shared residence was, as I understand it, an apartment owned by Ms M and as she put it in paragraph 6 of her affidavit:
I trusted her (the mother) as a responsible tenant of my property.
Ms M went on to note her observations of an incident on 14 and 15 April 2011, although, I would certainly acknowledge that that is old in time. What she did, however, note and it was not challenged, was that the mother was the parent taking primary care of the child. She also noted at paragraph 14:
I also observed that Mr Maddax was very anti-social. One evening in June 2011, I invited my friends Ms H and Mr J for dinner to introduce them to Mr Maddax and Ms Danner. However, after he greeted them Mr Maddax locked himself in his room to work instead of joining Ms Danner, my friends and myself for dinner. X was already in bed.
Most significantly, however, Ms M spoke of her observations of the mother and the child. Such observations were entirely unchallenged or, in fact, even commented upon by the father or his counsel. At paragraphs 18 through 21, Ms M says:
18.Over the years, I observed how Ms Danner cares for X and I have always been impressed with her loving and patient nature towards X. I can say from my own knowledge of Ms Danner that it is not in her character to be demanding or to X speak (language omitted), (language omitted) or English. Ms Danner and X naturally communicate in (language omitted) because that is Ms Danner’s native language.
19.Ms Danner studied (studies omitted) at University and she is very creative and encouraging when it comes to entertaining and teaching X new things. X is a very bright little girl and effortlessly absorbs knowledge presented to her. Ms Danner is a very social person and connects easily with people around her. I believe that Ms Danner is a great role-model for building X’s social and communication skills, whereas Mr Maddax shies away from social scenes and is judgemental towards people.
20.Since Ms Danner and Mr Maddax separated in 2013 and Ms Danner moved out with X, I have seen Ms Danner and X many times. X seems to be very happy, confident, chatty and she is always excited to see me. I catch up with Ms Danner and X regularly and have not witnessed any occasion that Ms Danner made any negative comments about Mr Maddax in X’s presence. I have also never heard X mention her Father at any time whenever I visited them or stayed for sleepovers.
21.I am impressed with Ms Danner’s attitude and that she always puts X first and only wants and does what is in X’s best interests.
To the extent that it is proper and I am able to do so, I accept the unchallenged evidence of Ms M in relation to these proceedings.
Insofar as Ms L is concerned, it is noteworthy that she details a number of more recent observations. Interestingly, whilst the father suggests that in particular her observations and comments as to an incident which occurred on 30 January 2014 was not accurate, Ms L was not required for cross-examination, Ms L noted that the mother in her observation had a:
Gentle and empowering parenting style and a passionate and determined commitment to her daughter.
More particularly, Ms L noted what she described as different behaviours from X on her arrival and departure, depending on which of her parents were doing the dropping off and picking up. She noted at paragraph 6:
When she arrived with her mother, X had obviously been well prepared for the transition and was generally happy to be here. X appeared to be feeling empowered and secure in herself and the separation was almost always a smooth and peaceful event, or if she was a little bit challenged by it, she was easily distracted and settled into play very quickly.
In paragraph 7, however, she notes different observations when X was delivered by her father. Ms L says the following:
However, when X arrived with her father it was a distressing experience for everyone. Mr Maddax made the goodbye a very drawn out event and was very clingy and needy, and this transferred through X and she lost all her sense of security and, in turn, became clingy and needy as well. I regularly had to peel her from her father’s arms as she screamed and fought. It would then take much of the morning to settle her. I tried on occasion to make suggestions to Mr Maddax around preparing X for this transition and supporting her through it, but to no avail.
Ms L’s comments in relation to the incident on 30 January 2014 were telling. At paragraphs 9 through 12 Ms L says the following:
9. It was during this time – 20 January 2014 – I had occasion to see this inability to recognise X’s need to have her transitions supported, when her Father appeared to deliberately provoke X into a state of despair just to prove to me that she wanted to be with him and not her Mother. It was a very unpleasant experience. Drop-off and pick-up times had been established and agreed to an, as I generally had a car full of children, it was agreed that Mr Maddax and X would meet me at the front gate of his apartment building at the designated time.
10.On this particular day I had contacted Mr Maddax to inform him I was running a little bit late, about ten (10) minutes at the most. When I arrived they were not at the front of the building and, after waiting for almost another ten (10) minuted, I went looking for X.
11.When I knocked at his door, Mr Maddax had X sitting up at the table and asked me if I would mind waiting another fifteen (15) to twenty (20) minutes as he was just cooking her dinner. I had other children with me and was not able to do this, and the times had been pre-planned so that he could have X ready for the transition. Mr Maddax then turned and told X that she was not going to be able to have the yummy dinner he was cooking because I had come to take her away. She immediately became upset because she had been promised this dinner.
12.Mr Maddax nurtured her dismay and despair and actually encouraged her into a screaming frenzy as he carried her out to my car. I have a van and he finally climbed in to secure her seatbelt and spent quite some time telling X how much he would miss her and how much he hated leaving her and how he wished she could have stayed for dinner and that he would make it for again when she came back. As Mr Maddax climbed out of my vehicle he turned to me and stated to me “see what she is doing to my daughter – how can she do this?” This incident was also confronting and upsetting for the other children in my care.
As I indicated, the father says that this exchange did not occur. However, in light of other comments which I will make in due course with regard to the father, and his evidence in relation to this matter, I am certainly of the view that the recitation contained within the affidavit of Ms L is, as far as possible, an accurate recitation of what occurred on 30 January 2014.
Otherwise, I note in particular the comments by Ms L in relation to her observations as to the mother’s interaction with the child, her encouragement of X’s relationship with her father and of her recognition of the importance of that relationship for the benefit of the child. In the circumstances, I am generally accepting of the matters detailed in the affidavit of Ms L.
THE EVIDENCE OF THE PARTIES:
I turn now to the evidence of each of the parties, in relation to these proceedings. I intend, firstly, to comment upon their evidence and then to seek to relate it more specifically to the matters identified by Ms R, in her report dated 31 November 2014. I would indicate at the commencement of these comments, however, that I have absolutely no doubt as to each parent’s love for the child and more particularly X’s love for each of her parents, as well as to acknowledge generally the capacity of each parent to provide for and to meet the day-to-day needs of the child.
The real issues that arise in relation to these proceedings and this family group in particular, are the issues with regard to the relationship as it exists between the parents and the effects of the interaction between the parents, upon the child. I will also comment as necessary in relation to a particular issue of concern which was identified by Ms R and which certainly seems to have raised significant issues from the perspective of the mother, relating to the father’s involvement of the child in the dispute between the two parents.
The mother was, in my assessment, a generally honest and open witness. It was somewhat troubling, therefore, that the first avenue of inquiry raised, by Counsel for the father, no doubt upon instruction, related to issues with regard to the mother’s honesty or integrity, arising from the apparent existence of a bank account in (country omitted) in the mother’s name. It appears to be the case that the father seeks to suggest that the mother has acted in a manner which was dishonest.
He was asked about this bank account and the inclusion of some reference to in his case outline. He was asked why he told his solicitors to put it into his case outline document, and his response was generally to the effect that there was no particular purpose or reason for it to be included other than that the mother was attacking him about not paying child support and he just wanted to show all of the evidence. He was asked specifically whether it was included, in fact, to make her look like a welfare fraudster, and he was emphatic that that was not the case.
Unfortunately, my impression in relation to that particular aspect of the evidence was very different. I am of the view that it was included by the father, specifically for the purpose of seeking to raise some concern in relation to the honesty or integrity of the mother. The best that could be said in that respect, however, is that it fell entirely short of raising any concerns with regard to the mother and her honesty, but certainly raised concerns as to the attitude of the father and the intent on his part to, as best he could, draw any adverse inference and to raise any adverse suggestion, in relation to the mother that could be done.
The mother, in my assessment, did not know of the continued existence of that account, and the father’s suggestions in relation to an improper or dishonest intent on the part of the mother fell entirely short of the mark.
The mother acknowledged the relationship between X and her father. She was asked whether she encouraged and supported that relationship, and she said that she did so. I accept that that was the case, though, of course, as is almost invariably the comment that can be made in relation to contested proceedings, each parent could do better than they have done. Certainly there has been circumstances where each parent should reflect upon their behaviours and the actions that they have taken. However, I am more inclined to the view that the mother is at least aware of her shortfalls and failures, in relation to decisions made with regard to the parenting of the child and perhaps the failures to properly engage with and to exchange information with the father.
But, as she repeatedly indicated, there were difficulties she had in trusting the father. It was troubling, however, that some of those difficulties arose from the fact that the father had, it was suggested by the mother, held the child over and kept her away from her, for a period of about 18 days, when she had acted in a similar manner. She says it was distinguishable because of the fact that there were not at that time orders in place which provided for each parent to spend time with the child.
Quite frankly, the existence or not of orders is of little consequence when it is the actions of the parties and their intent which is a far better indicator of what each party’s real desire, is with regard to fostering and developing a relationship with the other parent. Suffice it to say that neither parent covered themselves in glory when it came to their actions with regard to withholding X from interaction with the other parent.
But that is a matter in the past, and it is clear that there have been recent opportunities for the parents to each foster the relationship with the other parent since orders have been made. And at least during that time the mother has continued to comply with the orders. As I have indicated, the mother has made decisions and taken steps which, in hindsight, no doubt could have been handled more appropriately. They relate, to issues with regard to the decision as to the school that the child is currently attending as well as decisions in relation to the school that the child will attend in the future.
The mother places great sway on the importance of her having support from family and friends and the benefits that would flow in relation to the child. The mother has discussed in the presence of the child issues with regard to future schooling, and it would perhaps have been far wiser to have had any discussions, as evidenced with the principal of the school (omitted) in (omitted), occurring without the child being nearby. But by the same token, I am satisfied that the mother did not set out to include the child in such discussions or to seek to manipulate the child but rather, as she indicated in evidence, it simply arose as a conversation between she and the principal when she was passing through the school for the purposes of seeing her nieces and nephews, the child’s cousins. It was not a deliberate act on the part of the mother.
The mother has been reluctant to communicate with the father. She has explained that as arising from those issues of trust, particularly since the father previously held the child over. Each parent needs to be aware of the importance of the other parent in the life of the child. The mother’s behaviour in refusing to communicate with the father, particularly in relation to suggestions of family dispute resolution or in respect of matters with regard to school enrolments and the like, needs to be addressed. The mother needs to recognise that communication between the parents is beneficial to X and that therefore it is important that such decisions, as much as is possible, be decisions of a joint nature.
By the same token, however, the mother has, to at least some degree, sought to involve the father in the decision-making process. And the father’s reactions have been of such a nature that the mother’s lack of trust or respect for the father is understandable. In particular, the mother made a unilateral decision with regard to X seeing an expressive therapist. She did not discuss it with the father, and the father sought information with regard to that particular aspect of the matter.
It’s noteworthy that in that regard however, the father sought some indication of what was occurring and sought, through his solicitors, information from the mother regarding the counsellor, so that the father could consult with her. In particular, the father, through his solicitors, again, no doubt upon instruction, indicated that it was his intention to, “thereafter be involved in any future treatment.” However, when the mother through her solicitors provided information as to the counsellor, the father’s response was to simply cancel all subsequent appointments.
It is clear that that would be a matter of some concern to the mother because, at least from her perspective, it could be construed that the husband had sought the information and indicated that he had a certain intent with regard to the use of that information, when it was an entirely different reaction on his part. Quite simply, the parents have remained at loggerheads.
They do not communicate with each other. They each act in different ways and at different times unilaterally and as a result of those actions give rise to further circumstances of distrust and dispute between them. An example of that relates to the fact that the father wanted to have the opportunity for telephone communication with the child. The mother says that the father did not seek it and that there were not specific provisions in orders for telephone calls to occur. The parties, however, failed to even consider appropriate discussions in relation to such issues but rather the father provided a four year old child with a mobile telephone. The mother indicated that she was not happy with that and she assessed the giving of a telephone to X as being an irresponsible action.
A lack of communication between the parties is significant and it is a matter of some concern but what is clear is that it is the child who suffers as a result of each parent’s determined view, that it is they who has the child’s best interests at heart and that the other parent is acting inappropriately. The mother certainly acted inappropriately when failing to make a proper arrangement with regard to the father having the opportunity to see X on her birthday or, in fact, on the father’s birthday.
A response by the mother, that he had seen her the day before or had the opportunity to see her the day after is irrelevant. The issue here is not what might suit the parents but what is in the best interests of the child and how that might be facilitated. The general impression I gained in relation to this matter is that the parents still remained at war with each other, and as a result of being at war with each other were unable or unwilling to properly consider what might be child-focused and appropriate arrangements to be made, with regard to the parenting of the child.
That is not to say that the mother is unable to communicate with the father or to engage with the father. It is a difficult process but one that must be entered into and my impression in relation to this matter is that where the mother’s evidence was that she would, as best she could communicate with the father and consider his views and attitudes, in relation to arrangements I am satisfied that that would in fact be something that would be properly considered by her.
Insofar as the evidence of the father was concerned, I was troubled by a number of issues that arose. The distinct impression and in fact the overriding impression I gained, in relation to this matter, was that the father’s attitude was one that was stemming from his appreciation of what was, “fair” and what would satisfy his, “rights”, in relation to the child. There seemed to be little, if any, appreciation of what might be in the best interests of the child.
The parties simply remained conflicted. They challenged each other and whilst both parents must accept a certain degree of responsibility in relation to that attitude, the impression that I gained was that the father was more determined than the mother to achieve his own goals, in relation to the parenting of this child, notwithstanding what might be in the best interests of the child.
That in particular arose, where the father’s proposals, as contained within the application in a case filed 25 June 2015, and which appeared to more accurately reflect what the father proposes with regard to time to be spent by X with each parent, is considered. The father proposes as many as six handovers each fortnight occurring notwithstanding that there have already been clear indicators of difficulties both for the child and for the parents, in facilitating such changes.
Ms R also commented upon the need for there to be a more structured arrangement with less changeovers occurring, in relation to the child and that appears to have fallen on deaf ears, at least insofar as the father is concerned because his desire, though he says it is couched in terms of what the child wants, is to have more changeovers and more time with each parent. The father was asked why he suggested the proposal as contained within the application in a case and how that promoted stability for the child.
His response was to say generally that it enabled X to have the opportunity that she had both parents available in her life but then went on to reframe that answer in terms of what he actually wanted with regard to his interaction with X because he said words to the effect:
I don’t see her for up to 10 days and shorter terms may be better for her.
The father acknowledged that there was a lack of communication between he and the mother and suggested that it was for that reason that he sought sole parental responsibility. The father, however, did so, I thought, on the basis of suggesting not that there would be little communication between he and the mother but rather that he would be the decision-maker. He couched his answer in relation to why he sought sole parental responsibility in terms of not wanting to be excluded and whilst he suggested that he would not seek to exclude the mother from the decision-making process, I gained the impression that the lack of communication and respect between the parties would give rise to difficulties of that nature and unfortunately, as I indicated earlier, my impression is that the mother would be the parent more inclined to seek to include and consider the views of the father, than would be the case if the father were to have sole parental responsibility.
The father emphasised repeatedly during his evidence in relation to the proceedings that what he sought in relation to arrangements with regard to X were not a reflection of what he wanted but rather were matters that arose, he says, as a result of the need to consider the child’s best interests, in relation to parenting. The unfortunate impression I gained, however, was that the father was determined to achieve his own goals in relation to this matter and that that was the reason for his absolute determination for there to be equal time and repeated changes, notwithstanding that there were concerns held in that regard.
Such concerns were made clearer, I thought, when it was noted that the father held X over in July of 2014, because he said that the child was distressed. But there appears to have been little information if any as to the extent of that distress or certainly any appreciation that any distress, if evidenced with the child, may at least to some degree have arisen from the fact that she was being precluded from the opportunity of spending some time and interacting with the mother.
The father denied categorically any suggestion that he had discussed issues of fairness with X. This is notwithstanding the fact, that Ms R specifically referred to statements by X, to the effect that even time would be fair and that it was something that had been spoken of between her and her father. In fact, the father went so far to suggest that any statement to that effect by the report writer was untrue, though it is noteworthy that the reporter was not cross-examined in relation to that particular aspect of the matter.
The distinct impression that I gained in relation to this matter, particularly when being mindful of not only the evidence of the father and of Ms R but also of the unchallenged evidence contained within the affidavits of Ms M and Ms L, is that the father was unable to not engage with X, in relation to what his wishes were and with respect to what he considered fair, in relation to the child and it may even have gone to the extent that the father did not realise that he was doing so.
It was disingenuous, in my assessment, to suggest, as the father did, when asked whether he had ever discussed the issue of time with the child, to suggest that there had been some discussions but it had only arisen when the child had raised such matters with him. The father agreed that sound adult behaviours, particularly those as suggested by Ms M and Ms L, if they occurred would be abusive, but denied that such behaviours had occurred. It is troubling in that respect however where the direct evidence was given by Ms L, in relation to the incident on 30 January 2014 and the father sought not to challenge that evidence.
I am unfortunately more inclined to the view that the father does overly engage the child in matters which are of an adult nature, evidenced not only by those matters to which I have referred but also particularly by providing to a four year old child a mobile telephone without proper discussion with the mother as to the use and operation and particularly times and circumstances for the use of such telephone.
Similarly, the father’s suggestion that notations from the contact centre which were included in subpoenaed documents were inaccurate but then did not challenge the writers gave rise to concerns, as did the father’s behaviour on occasions when X was in his care, of arriving at the school to provide her lunch. He seemed to have no appreciation whatsoever of the disruption that such an attendance on a daily basis, or at least on the days the child was in his care, would have to the child’s opportunity to interact with her peers and develop her social skills, as a result of those behaviours.
Quite simply, the father’s impression to me, in relation to this matter, was that achieving what he sought in relation to the child was far more an indication of what he wanted, than any appreciation of what might be appropriate for the child. Such concerns were emphasised more particularly in relation to financial considerations with regard to the parenting of X as well as issues with regard to where the child might live and how each parent might be able to appropriately foster that.
The father indicated that he had little if any financial wherewithal himself. He described himself as a TAFE student and self-employed, but the best indications were that his employment was of a very limited nature, and clearly he was not constricted in moves, as a result of employment. As best I understand it, at the time of trial at least, the father’s income primarily was derived from the operation of a (omitted) business at a (omitted) in the (omitted) area once a week or once a fortnight.
His income as disclosed by him, however, fell entirely short of what appeared to have been his reasonable expenditure, and it is clear that the father, as he indicated, was receiving support from family in (country omitted), and that therefore there was a considerable degree of flexibility available to the father, in relation to his financial circumstances. Notwithstanding that, however, the father had stopped any form of child support being paid to the mother in June of 2014 and continued to pay no child support.
The father also was asked about the opportunities with regard to changing his place of accommodation and acknowledged that there was little that held him to the (omitted), other than the fact that he has a rental contract, but that would, of course, be something that could be dealt with fairly easily, either by ending the rental arrangement or simply allowing the lease to run out and then looking at other alternatives.
The father, however, would not, apparently, consider such a move, but sought constraints to be placed upon the mother, in requiring her to remain in the (omitted) area, so that the child could attend the school that the father now wished the child to attend, notwithstanding that it appears clearly to be acknowledged that there is little that would hold either now to the (omitted) area, and there are certainly real attachments and supports that the mother would have in Brisbane, in either the (omitted) or (omitted) area.
The father was a man who loved his daughter and wanted nothing more than the best for his daughter. The impression I gained, however, was that the father was lacking in any real insight as to the effects upon the child of the father putting his own wishes ahead of the best interests of the child. In fact, in the family report, and the father was cross-examined about it, there was a concern expressed by Ms R that the father had an inability to separate adult and child issues, and that therefore he was giving rise to a situation where the child was seeking to provide a response that would be supportive of the father’s wishes, rather than to in any way appreciate what might be in the best interests of the child.
The father’s attitude and response to those matters, was to suggest that he had spoken with a psychologist in (country omitted) but that there was no report available, in relation to the involvement that he had with that psychologist. The father’s response was to the effect that he wasn’t ordered to get counselling, and, in any event, he went on a little later in cross-examination to suggest that one of the reasons that he had not acted upon any of the matters that might have been raised in the report, was because the report was not truthful and was, in fact, biased.
With respect, the impression that I gained, however, was that the father did not like to be challenged, and certainly when Ms R gave rise in her report to suggestions that the father was not acting in a manner which was appropriate or in the best interests of the child, the father’s attitude was simply to suggest that the report was, in fact, flawed when there was no evidence to that being the case, and, more particularly, it was clear that Ms R was not in any way challenged as to her methodology or approach, in relation to the preparation of the report.
I was troubled by the father’s attitude in relation to this matter and, in particular, to the lack of insight that he displayed, particularly with regard to the future arrangements with respect to the welfare and best interests of the child.
THE FAMILY REPORT:
I turn now to the family report and the evidence of Ms R. Ms R is a family consultant with social work qualifications and has had extensive experience in both private and public practice. No challenge was raised in relation to Ms R’s experience or expertise. Ms R’s recommendations with regard to the parenting of X were contained within paragraph 201 of her report and included a suggestion that if the parents resided in the same area that they have equal shared parental responsibility, but that the mother be permitted to relocate to the (omitted) area of Brisbane with X and that the child attend the (omitted) Primary School with her maternal cousins.
Additionally, it was suggested that if the relocation were to occur and the father lived within a 35 kilometre radius, (though it should be noted he currently does), then that there should be equal time spent with each parent. The reporter, however, then clarified that if the father lived in the (omitted) area, and X lived with her mother in (omitted), then there should be alternate opportunities for the father to spend time with the child on alternate weekends, as well as for there to be communication and school holiday arrangements put in place.
Ms R was required for cross-examination in relation to the matter and understandably was asked about the suggestion of there being equal shared parental responsibility. Ms R noted that if that was to occur, and, of course, if there were to be equal time flowing from that, then there would need to be appropriate communications and trust held between the parents. She noted that if that were not the case, and it clearly is the situation now and one would anticipate into the future, then she indicated she would have concerns with regard to equal time or equal shared parental responsibility.
Ms R noted, that if equal time arrangements and equal shared parental responsibility were suggested whilst there was that difficulty in communication and lack of trust, then there would be distress caused to X, and certainly it would appear that there were already indicators of various matters that were of concern. In particular, Ms R was asked about the comments contained within paragraph 167 of her report. There, Ms R noted:
When asked about her current living arrangements, X stated that she lives with her mother and spends five days with her father. She said that her parents could “share” her for seven days each, as that would be “fair”. X stated that her father had told her all about the report writer when she was with him, and they had talked about what was fair. X said she has not told her mother about spending seven days with each parent, as her mother would say no. X said that seven days with her mother and then seven days with her father is “fair and gooder”.
Ms R was asked to check her notes in relation to those comments, and she indicated that she had done so and that her notes were consistent with the contents of paragraph 167.
As I indicated, the father suggests that this was either an untruth or a misstatement by Ms R or perhaps by X. However, my overriding impression in relation to the matter, and it was certainly a matter considered by Ms R, was that the child had specifically been the subject of discussion with the father, in relation to what was fair and what the father sought, in relation to parenting and, of course, Ms R specifically noted that, this would be an issue which could add distress to the child.
Ms R noted that, at the time that she had seen the parties, that there were difficulties in their communication and a lack of trust and, unfortunately, her assessment was that, if anything, the dispute between the parents has now increased. As a result of that, Ms R understandably indicated that she could not recommend the repeated changes, particularly as would arise if the father’s proposals were put forward, in relation to the matter. Ms R noted that, in that regard, it would give rise to difficulties for a child of X’s age to cope with the numerous changeovers, particularly when there was the continued conflict between the parents. Ms R went on to note particularly words to the effect:
This is a bright child and she knows exactly what the setup was and it is not in the child’s best interests to impose strict changes and complex arrangements.
Ms R emphasised that the mother’s proposals, whilst obviously suiting the mother, were also arrangements which would be suitable for the child. It would provide support for the mother and therefore assistance with regard to her parenting generally. It would not be overly disruptive to the father, because of the fact that there was little, if anything, that tied him to the current place that he resides and it would enable close interaction between X and her cousins at a school that they attend and a school that she is familiar with.
Ms R was asked about the father’s actions in suspending any opportunity for X to continue in play therapy and she commented, I think quite sensibly, that it was unfortunate that the father’s actions occurred, when he had not made enquiries with regard to the program, particularly when her understanding was that it was a beneficial program. Quite simply, the father’s attitude was one identified by Ms R as being similar to that identified by me, which was far more self-centred and lacking in insight as to the best interests and welfare of the child, than the position taken by the mother.
The cross-examination of Ms R, particularly from the perspective of counsel for the mother, was to emphasise that since the report had been prepared, the circumstances that had existed had continued to deteriorate in relation to the relationship between the mother and the father and that there was therefore a rise in concerns relating to the welfare of the child. Ms R noted that that was the case and spoke particularly about the notation within the (omitted) Kindergarten letter of 5 November 2014, with regard to the father’s failure to appreciate any attitude or recommendations with regard to parenting, other than those which were suggested or intended by him.
Ms R understandably had concerns with regards to the parents and the continued deterioration in their relationship and its effect upon this little girl. At paragraph 175, Ms R noted:
The issues between the parents are largely unresolved and both parents provide disparaging views about the history of their relationship and their separation. The tension and lack of trust between the parents is clearly evident. Both parents displayed little insight into their personal histories and apportioned blame to the other about parental conflict.
She goes on to note at paragraph 176 the following:
It is the report writer’s view that there is no doubt that X will suffer from exposure to the ongoing conflict and hostility between her parents. If this conflict remains unresolved, X will begin to exhibit signs of a disrupted attachment due to the parent’s pattern of refusing to return X to the other parent or threatening to not return X. It is noted that X presented as a well-cared for little girl, despite exposure to the parenting conflict.
Unfortunately, my assessment in relation to this matter, similar to that of Ms R, is that the parents have remained at war and that there are now clear indicators of this child being distressed and that there are negative impacts upon the child. Ms R noted in cross-examination by counsel for the father that X seemed to be a child now more involved in the conflict between her parents and the evidence would indicate that there were issues of very great concerns and, as Ms R put it, that it, “raises alarm bells for me.”
Ms R indicated that, having read the trial material that had now been filed in relation to the matter, that her attitude to equal time and equal shared parental responsibility had changed. She noted in words to the effect in cross-examination:
When I read additional information in relation to this matter, I gained the impression that the child wasn’t being allowed to transition at school. There were circumstances where she had to wait at the fence for the father to have her lunch.
Ms R also went on to note what she said was the significance of the fact that when the child was ill and was taken to hospital, the parties cooperated with each other, though there was no doubt, in my assessment, at least, of some continued hostility between them, but, and it was emphasised by Ms R, the child had asked to go home with her mother. In the circumstances, Ms R noted that it was her assessment that it would be better for the child to live with one parent or the other and to spend time with the other parent and, in the circumstances, her impression was that it would be the best interests of the child being met if X were to live with the mother.
Ms R was asked what might be the alternatives that were available and, in particular, whether, in fact, if the mother needed to move because of issues of her support, X could stay in the care of her father and remain at the school that she was established at. Ms R noted that she would not be confident that the father would stop undermining, as he appeared to still be doing, the relationship with the mother and, in her assessment, there existed at the present time an enmeshed relationship between child and father, evidenced by the father’s attendances at school and otherwise.
I was assisted by the report prepared by Ms R in relation to this matter. In particular, I note in the report under the heading “Evaluation”, Ms R noted at paragraph 195 the following:
In endeavouring to work towards an outcome that will protect X from psychological, emotional and physical harm, there are a number of factors to be considered.
She then goes on to mention those various factors and, in particular, notes the importance of consideration of X’s cultural background and of the fact that her identity is inclusive of (country omitted), (country omitted) and Australian cultural considerations, but then notes at subparagraph (j):
Mr Maddax and Ms Danner state that they want to co-parent X, the report writer is of the view that neither parent has genuinely committed to developing a functional relationship to focus on the future wellbeing of X as evidenced by the current school issue. Each parent has made a unilateral decision to enrol X at the nearby school without any consultation with the other parent.
And finally, at subparagraph (l):
The issues in dispute are adult issues and the parents are not child-focused, which will impact on X’s wellbeing and on her future relationship with each parent. Unless these parents are able to make a child-focused decision, there is the risk that X may emerge into adulthood as a maladjusted young adult due to the complexity of the conflict that surrounds her life, compounded by the ongoing allegations and counter-allegations.
I accept those professional assessments by Ms R in relation to this matter. If anything, they are generally reflective of the concerns that I also have in relation to this matter and whilst, as I had indicated, there are issues of concern with regard to each parent, overall I am more significantly concerned by the effects upon the child of the ongoing attitudes and behaviours of the father. I was assisted by the report and evidence of Ms R in relation to this matter.
THE LAW:
I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, relating to the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the child. In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA of 80, a decision handed down on 11 February 2010, his Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136]The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137]Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138]But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139]The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140]No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141]The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142]Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143]“Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144]Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145]Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146]Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147]A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148]The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149]If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150]The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151]An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152]Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75. In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.
76. We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
Obviously the issue of parental responsibility is one of great significance. Section 61DA provides that there is a general presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
In Heath & Hemming (No 2) [2011] FamCA 749, decision of Justice Kent, his Honour when discussing a parenting case, went on to comment about the decided law in respect of parenting decisions. His Honour said, at paragraph 87, the following:
87.Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: -
(a)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(e)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
(a)Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
(b)Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
In paragraph 87, his Honour detailed a checklist of those matters that need to be considered and, of course, they are reflective of the guidance also provided in Lansa & Clovelly (supra). I have already outlined at some particular length the various matters that have arisen as a result of the evidence that has fallen in relation to this matter and obviously now need to apply those findings to the considerations to be looked at in relation to this matter.
There is therefore a number of steps to be followed in order to assist in the ultimate determination of what might be the most appropriate arrangements in respect of the parenting of this child.
Firstly, there is the need to identify the competing proposals of each of the parties and they are clearly delineated at the commencement of these reasons. The parties’ positions are diametrically opposed, even to the extent now of both seeking orders for them to have sole parental responsibility in relation to decisions to be made, as well as to have the child live primarily with each of them. No other alternatives were suggested during the proceedings and it is clear that whilst there may be some clarification in relation to orders as proposed, only one of the parties’ proposed orders will be able to be acted upon.
The second step then is to consider the objects and principles as detailed in section 60B(1) and (2) and to undertake the consideration of those “best interests” as detailed in section 60CC. Section 60B(1) and (2) are in these terms:
60B(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CC(2), (2A) and (3) are in these terms:
Primary considerations
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(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).
Additional considerations
60CC(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the 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;
(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;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) 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;;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Obviously, a number of factors as identified in these reasons loom large when considering findings to be made about the best interests of the child. The primary considerations relate to the child’s right to a meaningful relationship with each parent and balancing that against the child’s right to be protected from circumstances which might give rise to a risk of either physical or psychological harm. As I have already noted, this little girl has a meaningful and important relationship with each of her parents. The parents love her and the child clearly loves each of her parents.
There is no suggestion or concern that arises with regard to the physical wellbeing of the child with either of the parents. That’s not to say that there are not concerns that are expressed by each parent in respect of decisions made by the other with regard to the care of the child, but there is certainly no significant concern with regard to either party’s capacity to physically provide for the child.
More particularly, each parent does however raise suggestions of concern with regard to the other party’s behaviour and the emotional harm that might flow onto the child as a result of those behaviours. As noted in my commentary with regard to the evidence of the parties, there are concerns with respect to the past actions of both parents, but there is a very significant issue that arises with regard to the father involving the child in the dispute, and certainly making her aware of his concerns with regard to the mother.
As indicated by me, the evidence, some of which was simply unchallenged, is that the father does engage the child in matters of an adult nature which is no doubt beyond the comprehension of this little girl, but which is also distressing for the child. The overwhelming impression that I gained from all of the evidence was that the father did not, knowingly, set out to harm the child, but in some respects even more seriously, unknowingly involved the child in the dispute which must lead to hurt.
As I noted in these reasons, the father’s determined stance was to achieve what he wanted in relation to the parenting of the child and would use fair means or foul, for example, the suggestions relating to the mother’s financial dealings, to achieve his ultimate outcome. I am certainly concerned that the father is not able to recognise the hurt that his actions and behaviours cause to the child and to her relationship with her mother.
There is also obviously the concern as identified by the report writer, Ms R, that the issues between the parents are largely unresolved, that there continues to be tension and a lack of trust between the parents, and most significantly, that the child is suffering from exposure to the ongoing conflict and hostility. Ms R noted that between the occasions that she saw X, the child appears to be more involved in the conflict between her parents.
Ms R was cross-examined in relation to those concerns and noted the child’s wish when ill to go home with her mother, the preference for the child to live with one parent or the other, and the overriding concern that she had that the father would not be able to stop undermining the child’s relationship with her mother. Such issues all give rise to concerns about harm to the child of a psychological nature and of the need for there to be orders which, as best as is possible, reduce the difficulties.
The additional considerations as set out in section 60CC(3) expand, to some extent, upon those primary considerations, but also raise other matters that need to be considered. I have already commented upon the existence of a very positive and significant relationship between X and each of her parents. That relationship must be fostered as best that can be done and there is obviously the distinction that must be drawn between the assessment of the mother’s capacity to do so and that of the father. As noted, there is a concern held in respect of the father’s ability to properly recognise and foster the relationship with the mother.
The child has also expressed a view, but noting, as I do, the age of the child and the fact that she has been influenced by the father, particularly for example in suggesting that seven days with each parent is “fair and gooder”, there is little weight that could be given to such immature and misunderstood wishes or views. If anything, this child wants a proper relationship with each of her parents and each of her parents to recognise the importance of fostering that relationship.
There are concerns that each parent expresses with regard to the other’s actions in participating in decision-making for the child, spending time with the child and communicating with the child, but as I have indicated, the overriding impression is that each parent seeks as much involvement in X’s life as is possible.
The proposals by the parties, certainly from the mother’s perspective, would involve some geographic separation between hers and the father’s residence, but it is not in any way an insurmountable difficulty. The parties have been able to address such issues and in my assessment would be able to continue to do so no matter what order might be made.
Though it has already been touched upon in these reasons, the considerations relating to the capacity of the parents to provide for the needs of the child and to show an appropriate attitude to the child and to the responsibilities of parenthood is a significant factor. There is no concern held with regard to the parties’ capacity to physically provide for the child and I would assess that both are able to meet appropriately her intellectual and educational needs.
As identified, however, whilst there are concerns with regard to the past decisions taken by each parent, there are greater ongoing issues relating to the father and his inability to separate his wants and wishes from the best interests of the child, such that the child’s emotional needs, specifically relating to the fostering of her relationship with her mother, gives rise to real findings favourable to the mother and to her capacity to more fully provide for the child’s emotional needs.
This of course also equates to a more complete appreciation of the responsibilities that arise in relation to the parenting of this little girl, and of the capacity to put the child’s needs ahead of the wishes of one or other of the parents.
Obviously, the orders that need to be made are hoped to provide some certainty and stability and whilst there is never a guarantee that one order or the other is less likely to lead to the institution of further proceedings, I am satisfied that final orders that provide a clear delineation of the responsibilities and opportunities that arise with regard to the parenting of X will also provide a more settled and stable environment, therefore being less likely to lead to further litigation.
Having previously commented on the evidence that has fallen in relation to this matter and now looking at its application to the legal considerations, it is clear that the overwhelmingly significant factor that arises here relates to the child’s emotional wellbeing and the ongoing concerns that the father is not able to sever his own wants from the appropriate course of parenting of this child. As indicated, there is little concern at all with regard to so many of the factors that need to be looked at in relation to determining the capacity of each parent to provide for the needs of the child, but the physical provision for those needs is only part of meeting the overall obligations that arise.
The real distinction to be drawn between the capacity of each of these parents relates to their ability to put the best interests of the child ahead of the hopes or expectations of the parent, and in my assessment the mother is the parent far more capable of ensuring that that is an ongoing consideration in respect of the parenting of X.
Having looked at those various factors and having made findings in relation to them, it is also necessary to consider the presumption arising pursuant to the provisions of section 61DA. Clearly, it would be in the best interests of this child for both parents to engage in a respectful and trusting manner with each other in the decision-making process. The clear indications, however, are that the father is unable to do so, noting particularly the concerns expressed by the report writer, Ms R, and the unchallenged evidence of Ms L.
The father does not communicate well with the mother and as a consequence of that, the mother’s communication with the father is also poor. Both parents could and should have done better in the past, but the particular concern here is that the parties cannot communicate appropriately with each other, do not trust or respect each other as the parent of X, and as such it would be nonsensical to suggest that they should engage in communication and decision-making which is presently beyond their capacity. As such, I am satisfied that the best interests of this child are not met by orders being made for equal shared parental responsibility, and note that in that regard the parents are at least of one mind in each seeking sole parental responsibility vesting in them.
I am satisfied that the best interests of X require the presumption of equal shared parental responsibility to be rebutted.
In that circumstance, it is not necessary to consider the provisions of section 65DAA specifically with regard to equal time or substantial and significant time, though that is not to say that either of those possible arrangements are therefore excluded. Rather, the determination of what is appropriate with regard to the parenting orders to be made arise from the considerations identified previously in these reasons.
It is, like so many of the cases, ultimately a question of what factor or factors might loom large in relation to the arrangements with regard to parenting. Here, the capacity of each parent to foster a proper relationship with the other parent is the factor that looms large and favours the position of the mother. As an aside, but also significant, is the fact that the mother’s proposals will allow X to more fully involve herself in family and cultural activities significant to the mother’s heritage and that can only also be beneficial to this little girl.
As such, the orders generally proposed by the mother, in my assessment, provide best for the child’s future needs and will ensure the greatest opportunity for the child’s relationship with each of her parents and with other significant in her life to be fostered and developed. The orders of the court, therefore, will be in the terms as detailed at the commencement of these reasons.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Coker
Date: 12 February 2016
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Family Law
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