DAWE & DAWE

[2013] FCCA 1069

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAWE & DAWE [2013] FCCA 1069

Catchwords:
FAMILY LAW – Children – parental responsibility – family violence – impact upon mother – weight to be attached to child’s views – shared care.

Legislation:  
Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61DA, 65DAA, 69ZT

Goode & Goode (2006) FamCA 1346

Applicant: MS DAWE

Respondent: MR DAWE

File Number: ADC 1072 of 2012

Judgment of: Judge Kelly

Hearing dates: 11, 12 and 18 April 2013

Date of Last Submission: 18 April 2013

Delivered at: Adelaide

Delivered on: 13 August 2013

REPRESENTATION

Counsel for the Applicant: Ms M Dickson

Solicitors for the Applicant: Donlan Lawyers

The Respondent: In Person

ORDERS

1. The parents share equally in parental responsibility for the child X born on (omitted) 2001.

2. The parents consult and endeavour to reach agreement in relation to major issues regarding X’s care, welfare and development and attend family dispute resolution in relation to any major long term issue about which they are unable to reach agreement.

3. In the event the parents remain unable to reach agreement, then the mother shall exercise sole parental responsibility in relation to the specific issue in dispute.

4. Each parent has parental responsibility for X’s day to day care whilst X is living with that parent.

X’s living arrangements until first term 2015

1. X live with the mother SAVE as otherwise provided for in these orders.

2. X live with the father as follows:

   (a)each alternate week from the conclusion of school Thursday until the commencement of school Monday (or Tuesday in the event of a public holiday or pupil free day);

   (b)each intervening week from the conclusion of school Thursday until the commencement of school Friday;

   (c)for one half of each short school holiday period at times to be agreed between the parties and in default of agreement from 5.00pm on the first Friday of the school holidays until 5.00pm on the Saturday one week later;

   (d)for one half of each Christmas school holiday period as agreed between the parties and in default of agreement on a week about basis commencing at 5.00pm on the first Friday of the school holidays until 5.00pm on the following Friday and each alternate week thereafter between the same times.

X’s living arrangements commencing first term 2015 and ongoing

1. X live with each parent as follows:

   (a)in alternate weeks from the conclusion of school Friday until the conclusion of school on the Friday one week following, commencing with the father on the first Friday in Term One 2015;

   (b)the alternate week arrangement continues during each short school holiday period unless otherwise agreed between the parties, with handovers to take place at 5.00pm on Fridays;

   (c)for one half of each Christmas school holiday period as agreed between the parties and in default of agreement the existing week about arrangement continue with handovers to take place at 5.00pm on Fridays.

Special occasions

1. X spend time with each parent on special occasions as may be agreed between them and in default of agreement as follows:

   (a)with the mother from 10.00am until 5.00pm on Mother’s Day;

   (b)with the father from 10.00am until 5.00pm on Father’s Day;

   (c)for a period of at least three (3) hours on X’s birthday with the parent in whose care she is not already living on that day, at times to be agreed and in default of agreement from 4.00pm until 7.00pm;

   (d)with the mother for a period of three (3) hours on the mother’s birthday at times to be agreed and in default of agreement from 4.00pm until 7.00pm;

   (e)with the father for a period of three (3) hours on the father’s birthday at times to be agreed and in default of agreement from 4.00pm until 7.00pm.

2. Notwithstanding any other parenting orders X spend time with the mother to participate in the following (religion omitted) celebrations:

   (a)the three day (religion omitted) celebrations;

   (b)the two day (religion omitted) celebrations;

   (c)the one day (religion omitted) celebration;

   (d)the (omitted) Celebration, subject to paragraph 10 of these orders;

3. Both parents are at liberty to attend the (religion omitted) Celebration with X and the parent with the care of X on this occasion (which falls on (omitted) of the (omitted) calendar in each year) shall ensure that X attend the (omitted) Celebration.  

4. The mother notify the father of the relevant dates for the above celebrations via the Communication Book at least fourteen (14) days prior to each occasion.

Ancillary parenting orders

1. Handovers take place with the relevant parent collecting X from school at the conclusion of the school day.

2. Any handover not taking place at X’s school shall occur at the father’s residence or such other convenient location as may be agreed between the parties from time to time.

3. The parties use a Communication Book to exchange information in relation to X’s health, education and welfare.

4. The parties ensure that they maintain a polite and respectful tone when communicating with the other parent or talking about the other parent in X’s presence.

5. Each parent is restrained from:

   (a)denigrating or criticising the other parent or any member of that parent’s family in X’s presence;

   (b)permitting any other person to denigrate or criticise the other parent or any member of that parent’s family in X’s presence;

   (c)discussing these proceedings with X;

   (d)showing X any Court documents or written material in relation to these proceedings;

   (e)taping any conversations with the other parent or with X; or

   (f)taking X to see any counsellor or psychologist without the written consent of the other parent first being obtained.

6. All proceedings are dismissed as finalised.

IT IS NOTED that publication of this judgment under the pseudonym Dawe & Dawe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 1072 of 2012

MS DAWE

Applicant

And

MR DAWE

Respondent

REASONS FOR JUDGMENT

1. X is 11 years old.  Her parents separated on 22 March 2012. Her mother filed her Initiating Application on 23 March 2012 and the parties have been in dispute regarding X’s parenting arrangements ever since.

2. Ms Dawe says that she has always been X’s primary care giver and she should continue in that role.  In addition, she seeks an order for sole parental responsibility.  Mr Dawe initially said X should live in his primary care but now proposes a week about parenting arrangement.  He proposes that the parties share parental responsibility for X.

3. As the parties have been unable to resolve these issues, it now falls to the Court to determine X’s long term parenting arrangements. 

Background

1. The mother was born on (omitted) 1964 and the father was born on (omitted) 1966.  The mother converted to the (religion omitted) religion, which led to some estrangement from her family.  The father was also a member of the (religion omitted) Church and the parties met in 1991 through their Congregation.  They married on (omitted) 1992. 

2. Both parties provided a great deal of affidavit evidence about the early years of their marriage and it is clear that they found themselves in a deeply unhappy relationship.  Neither party seems to have been particularly well equipped to manage the transition to married life. 

3. The mother experienced a severe depressive episode in 1992/3, which she describes as ‘a nervous breakdown’.  Her general practitioner prescribed antidepressant medication before referring her to a psychiatrist, Dr R. The mother slowly recovered but it is clear that both parties were unhappy and felt trapped within their marriage. 

4. X was born on (omitted) 2001.  The parties continued to live a traditional family life where the father was the breadwinner and the mother was the primary homemaker and parent.  Sadly their relationship remained fraught and within months of X’s birth the parties were discussing the possibility of divorce.

5. From the mother’s perspective, the father was aggressive and domineering. As the relationship deteriorated, the father made it clear that divorce was “a real possibility” in the future, once X was older.  He informed the mother that she needed to plan for her own financial future.   

6. From the father’s perspective, the mother was cold and withdrawn and he felt trapped in a loveless marriage.  Nonetheless the parties continued to live together, partly due to their religious beliefs, partly due to the importance of their marriage vows and partly due to their commitment to their daughter.  It is hard to imagine what X’s life must have been like within the household, given the tense and dysfunctional relationship that existed between her parents.   

7. The mother continued to consult occasionally with Dr R over subsequent years as she struggled within the relationship.  The psychiatric reports prepared by Dr R and subsequently by Dr B provide considerable insight into the ongoing nature of the mother’s depressive condition. 

8. In November 2010 the father informed the mother that he intended to separate from her within the next two years.  He then changed the financial arrangements within the household, insisting that both parties contribute equally to household bills and expenses.  The father believed his actions were reasonable and realistic, designed to remind the mother that she would need to be responsible for her own financial support after separation.  The mother saw this as yet again another example of the father’s controlling behaviour, which placed her under financial stress and simply added to the tension within the household.

9. In late 2011 the father implemented a shared care arrangement for X such that each parent took responsibility for her day to day care in alternate weeks.  The father says that he and the mother agreed to this arrangement after discussions with a counsellor, but the mother says that she had no choice in the situation. I accept that this parenting arrangement was imposed upon the household by Mr Dawe insisting on it, rather than the mother actively supporting the arrangement.  Either way, it must have been a baffling emotional experience for X.

10. This arrangement remained in place until March 2012 when the mother decided she could no longer continue in the marriage.  Having made the decision to leave, she and X went to stay with her family for the weekend.  The mother did not tell the father or X that she and X would not be returning to the family home.

11. The father was understandably upset when informed that the mother had left permanently with X.  This was obviously a distressing and difficult time for everyone within the family. 

12. The mother facilitated telephone calls between X and her father but became concerned that the father was using this communication to undermine her relationship with X.  The parties were able to agree an informal regime for X to spend some time with her father, but the mother insisted that her sister remain present, to ensure the father did not attempt to influence X’s views about her long term living arrangements.

These proceedings

1. The parties’ competing applications came before the Court on 24 April 2012.  On that date orders were made for X to remain in her mother’s primary care and to live four nights per fortnight in her father’s care.  Interim parenting orders were made in relation to handover arrangements and both parties were restrained from abusing the other parent and from discussing the proceedings or parenting arrangements with X.  The parties agreed to obtain a family assessment report, and various other orders were made in relation to property settlement proceedings.

2. The parties instructed Ms J to prepare a family assessment and her report became available in August 2012. The parties considered her report but remained unable to reach agreement in relation to X’s care arrangements.  Following argument on 13 September 2012 the interim parenting orders were varied and X’s time in the father’s care was extended by one night per fortnight.  Parenting issues were then listed for trial in February 2013.

3. The parties entered into consent orders in relation to financial matters on 9 October 2012.  Trial directions were also pronounced, including an order that each party could call up to three supporting witnesses. Shortly thereafter the parties became aware that Ms J was not available to give evidence in February 2013.  A further directions hearing took place on 30 October 2012, when the trial was re-listed to 11, 12 and 15 April 2013.

4. The hearing commenced before me on 11 April 2013.  The applicant mother relied upon the following documents:

   a)Her Initiating Application filed 23 March 2012;

   b)Her Trial Affidavit filed 4 March 2013;

   c)Trial Affidavit of her sister Ms E filed 4 March 2013;

   d)Report of Dr B dated 6 July 2012 (annexed to Affidavit of Mr D filed 11 July 2012);

   e)Family Assessment Report of Ms J dated 14 August 2012 (annexed to Affidavit of Mr D filed 20 August 2012).

5. The father relied upon the following documents:

   a)His Response filed 28 March 2012;

   b)His Trial Affidavit filed 25 March 2013;

   c)Affidavit of Ms C filed 25 March 2012;

   d)Affidavit of the father’s sister Ms C filed 23 April 2012;

   e)Affidavit of Mr W filed 18 July 2012;

   f)Ms J’s report dated 14 August 2012.

6. I am satisfied both parties gave their evidence honestly and to the best of their recollection.  Both parties were able to make appropriate concessions in the course of giving evidence. 

7. Ms Dawe clearly found the experience of giving evidence extremely stressful, however she became noticeably more relaxed as the hearing progressed.  The mother was generally able to respond to questions put to her in cross examination although she acknowledged that her recollection of certain periods was sometimes patchy, given her past psychological difficulties.  I accept the mother’s past psychological history means there may be events or situations she cannot recall precisely, but that does not mean that the Court should discount or disregard all of her evidence on other topics or events.  On the contrary I find the mother was generally a reliable witness.

8. The father was also a reliable witness.  Not surprisingly however, both parties’ evidence differed greatly about significant issues, particularly regarding their past relationship.  Where their evidence conflicts, this arises more from each party’s different perspective on such matters, rather than from any attempt to mislead the Court. 

9. The parties’ supporting witnesses also gave their evidence honestly and to the best of their recollection.  The evidence of the father’s work colleagues was not of great significance, given they had very little direct opportunity to observe the family dynamic between the father, the mother and X.  Both parties’ family members were genuine and honest witnesses, but somewhat partisan in their evidence and tended to recall past events in such a way as to support their brother or sister. 

10. Dr B’s evidence was of considerable assistance, particularly as she provided to the Court the earlier notes from the mother’s treating psychiatrist, Dr R.[1] Dr R was not available for cross examination as she is no longer in practice. However pursuant to s.69ZT of the Family Law Act 1975, her notes and reports were received into evidence.

    [1] Exhibit M1 Medical Notes from Dr R 1994-2011

11. Ms J’s evidence was also of great assistance to the Court.  She gave her evidence in a calm, professional manner and provided considerable insight into the overall family dynamic as it affects X. 

Legal principles

1. The Family Law Act 1975 was amended in July 2012, however the relevant legislation is that which applied when these proceedings commenced in March 2012. 

2. Section 65D empowers the Court to make such parenting orders as it thinks proper, subject to certain limitations set out in that section. When making a parenting order, the best interests of the children are the paramount consideration (s.60CA). Section 60B sets out the objects and principles which govern the Court’s decision making responsibilities. This section focuses on the importance of parents having a meaningful role in children’s lives, on the need to protect children from harm, and on parents fulfilling their parenting duties.

3. Section 60CC sets out the factors the Court must apply in determining the children’s best interests. In Goode & Goode[2] the Full Court noted that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”.  Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the legislative pathway the Court should follow in any parenting case and their comments apply equally to final hearings. 

   [2] Goode & Goode (2006) FamCA 1346

4. First, the Court should address the considerations set out in s.60CC. Section 60CC is divided into primary considerations and additional considerations. The two primary considerations are as follows:

   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.  

5. There are thirteen additional considerations in s.60CC(3) which must be taken into account. I must also consider the extent to which each party has fulfilled, or failed to fulfil, their parental responsibilities (s.60CC(4), (4A)). The Court is also required to ensure that any parenting orders do not expose the children or either party to an unacceptable risk of family violence.

6. Family violence is defined as “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety”.[3] 

   [3] s.4, Family Law Act 1975

7. It is important to remember that ‘conduct’ can include verbal or emotional abuse as well as physical abuse.  Similarly, ‘personal wellbeing or safety’ goes beyond a person’s physical safety and can include a person’s emotional or psychological safety.

8. Section 61DA requires the Court to presume that it is in the child’s best interests for her parents to share parental responsibility equally, unless the presumption does not apply, or is rebutted. An order for equal shared parental responsibility triggers s.65DAA, which requires the Court to consider whether it will be in the child’s best interest to spend equal time, or substantial and significant time with each parent, assuming such an arrangement is also reasonably practicable.

9. The Court is not required to rule on every issue in dispute between the parties. Rather, these reasons will focus on those issues that most directly affect my assessment of the relevant s.60CC considerations.

Section 60CC primary considerations

1. Both parents acknowledge that X will benefit from having a meaningful relationship with each of them in the future.  They both acknowledge the important role they each play in X’s life, notwithstanding the criticisms they make of each other within their Affidavit material.

2. Both parents believe the other party has been responsible for causing X psychological harm, either due to their behaviour during the marriage, or in the period since separation.  I agree that both parties have cause to reflect upon their behaviour towards each other and within their parenting relationship with X.  However, I do not consider X is at risk of physical or psychological harm in the care of either parent in the future. 

1. The mother alleges that the father’s behaviour towards her during the marriage was abusive and violent. I will address this issue first, together with my findings regarding the mother’s mental health. Both issues provide an essential underpinning of my further discussion of the additional considerations set out in s.60CC(3).

Findings in relation to family violence

1. The father concedes that his behaviour contributed to the difficulties within their marriage but argues that the mother was not simply an innocent victim.  He considers she was the controlling partner in the relationship and described how she would speak in ‘the voice’, a caustic tone that he found distressing.  I accept that the father may well have experienced the mother’s behaviour as cold and emotionally distressing.  No doubt the mother behaved hurtfully towards the father at times, but I do not consider that he was frightened or intimidated by the mother during their marriage.

2. The father acknowledged that there were occasions early in their marriage when he reacted aggressively during arguments.  On one occasion he conceded that he made ‘some smart remark’ and the mother reacted by punching him in the arm.  He then stormed out of the room, hitting the door three times with sufficient force that he left a hole in the door.  On another occasion he slammed a door open with such force that the handle left a hole in the gyprock wall.  He conceded it was possible he may have thrown a TV remote control down on the table, in frustration, but denied throwing anything at the mother. [4]  

   [4]  Father’s evidence in cross examination, 12 April 2013

3. The father acknowledged that he has a strong personality and that he might ‘try and push through a solution’, when necessary.  He agreed that he might have called the mother ‘lazy’ or ‘incompetent’ when criticising her housekeeping.  He further agreed that in the course of an argument about financial issues, he made a comment along the lines ‘if this had happened in my father’s house, you’d be in hospital now’. He does not believe that the mother received this comment as a threat of physical violence.  With respect, it is hard to see how else this comment could be received.    

4. These few incidents, which the father concedes, provide a telling insight into the overall power dynamic within the relationship.  Whether a partner is physically violent, emotionally abusive or demonstrates coercive and controlling behaviour, family violence has an invidious impact within a relationship. If the abused partner remains in the relationship, inevitably that partner learns to moderate their own behaviour, in order to avoid provoking an angry reaction from their partner.  

5. I conclude that this is the dynamic that developed between the parties early in their married life together.  The father was over-reactive, controlling and aggressive at times, as he endeavoured to assert his authority within the marital relationship. The mother was already emotionally fragile, which no doubt undermined her capacity to respond assertively.  I accept that she felt intimidated by the father and managed the situation by withdrawing, so as not to provoke an outburst.  Taking into account all of the evidence, I conclude that the mother felt frightened and intimidated by the father’s behaviour.

6. I consider the medical reports and notes from Dr R support this conclusion. Dr R was unavailable to give evidence, which limits the weight the Court should place upon this material.  Nonetheless, her notes and reports provide a longitudinal insight into the mother’s psychological wellbeing and the impact of the father’s behaviour upon the mother, at least insofar as she described it to Dr R across the years.  Significantly, the medical records confirm that the mother experienced the father as controlling and abusive across a number of years.

7. The father rightly points out that the mother did not raise relationship difficulties in her early years of therapy with Dr R.  The mother concedes this, saying she was initially reluctant to talk about this issue.  Subsequently the husband attended appointments with her, which made it impossible for her to discuss his behaviour.  I accept the mother’s evidence on this point. 

8. The mother conceded that the father reacted less ‘explosively’ as X became older, so as not to upset X.  However she continued to feel intimidated by the father and again responded by withdrawing further into herself.  The father agrees that their communication was virtually non existent in the latter few years, beyond day to day practicalities.  However, he is unable to accept that his behaviour was intimidating. 

9. I disagree.  I am satisfied that the father continued to behave in ways that caused the mother significant emotional distress. His insistence that they each contribute equally to household expenses was a form of financial intimidation, given that the wife earned a much lower income.  Similarly, when the mother would not agree to a week about shared care regime for X prior to separation, the father’s threat to raise her past psychiatric history in any Court process was intended to intimidate the mother into acquiescing with his proposal.  

10. I find that the father’s behaviour during the marriage falls within the definition of family violence and that this past behaviour continues to affect the power dynamic between parties into the present. 

11. I do not consider that there is an ongoing risk that either X or the mother will be exposed to violent behaviour in the future, however. The father’s past behaviour indicates his own immature and unacceptable response to the stressors within the marital relationship.  Hopefully his participation in this Court process has provided the father with an opportunity to reflect on his past behaviour.      

The mother’s mental health

1. The mother says that her breakdown was a result of the father’s bullying and aggressive behaviour towards her after their marriage.  I note however that her medical records suggest she was already vulnerable to mental health issues prior to the marriage.

2. The father denies that he was abusive or controlling or that his behaviour led to the mother’s nervous breakdown.  He believes the mother’s breakdown arose because of other issues quite separate from their marriage.  In hindsight, he concedes that he may not have handled the mother’s health issues very well and could have been more supportive.  The father acknowledged that he and the mother have very different communication styles and that she may have perceived him as controlling or verbally abusive when, from his perspective, all he was trying to do was to talk through and resolve the particular issue in dispute.

3. It would be wrong to conclude that the father’s behaviour was the only cause of the mother’s depressive episodes.  The mother’s psychiatric notes show that she struggled with a range of other pre-existing issues, which also affected her psychological health and she brought this psychological frailty into the marriage, as well.  However the difficulties within the marriage were certainly identified as an ongoing stressor for her across the years.  

4. Despite her early breakdown, the notes indicate that the mother responded positively to treatment, to the point where she did not consult Dr R for some years, before returning again in 2010.  

5. The Court heard evidence from Dr B who conducted a psychiatric assessment of the mother in July 2012 and consulted with her again in early 2013, prior to the trial.  Dr B agreed with Dr R’s opinion that the mother could be quite driven, with a tendency to perfectionism and obsessionality.  

6. Dr B concluded that the mother experienced a Major Depressive Disorder in 1993/94, but responded well to treatment over time.  Since then she experienced “chronic and recurrent depression and anxiety”, but not at the level of a diagnosable psychiatric condition.  She noted that the mother managed her condition with therapeutic support over the years, despite living in an atmosphere of criticism, control, intimidation and coercion within the marriage.  She described the parties’ relationship as ‘highly toxic’.  It is easy to see how both parties’ respective personalities may have added to that toxicity.

7. Dr B concluded that the mother has continued to maintain stable mental health, notwithstanding the stress associated with the separation and subsequent Court processes.  However, she was concerned that the mother will continue to find interaction with the father stressful.  She was further concerned that ongoing conflict between them may undermine the mother’s mental health. 

8. I conclude that the mother’s mental health does not affect her parental capacity or impact upon her parenting of X.  The father concedes as much, given that he is seeking a shared care arrangement.  However the mother remains vulnerable to the impact of ongoing conflict with the father.

Section 60CC(3) additional considerations

(a)   X’s views

1. The Court has a great deal of information in relation to X’s views.  X was interviewed by Ms J for the purposes of the family assessment.  In addition there is a vast array of text messages and other notes exchanged between the father and X in the period April – June 2012. X herself had prepared a power point display which she provided to Ms J.

2. It is clear from all of this information that X identified strongly with her father and was highly critical of her mother’s actions and behaviour at that time.  The evidence suggests a child who had adopted an extremely polarised view of her parents, where her father could do no wrong and her mother could do no right.

3. Ms J described X’s situation as follows:

   “… As it stands, X presents as firmly aligned with her father.  There were moments when this fluctuated however.  When brought by her mother, X was calmer in her views and spoke more of a week-about arrangement of time.  When brought by her father, X was more strident and negative about Ms Dawe, and vehement that she had to have more time with Mr Dawe.”[5]

   [5] Ms J’s family assessment report, dated 14 August 2012 p.15, annexed to Affidavit of Mr D filed 20 August 2012

4. There are a number of factors to take into account when considering the weight to be attached to X’s views.  First, this interview took place less than four months after her parents separated.  The separation itself occurred in a way where X feels her mother behaved badly and that she was “stolen” by her mother.[6]  This echoes the father’s interpretation of the separation.

   [6] Ms J’s report, p.15

5. I consider X’s sense of unfairness was exacerbated by the father’s behaviour immediately following the separation.  The intensity of the SMS text exchanges between them served to enhance X’s sense that her mother had behaved unfairly.  This is not to say that the father was overtly denigrating or criticising the mother in these text exchanges, but his responses created a scenario where he and X were ‘on the inside team’, with the mother very much on the outer. 

6. The Court did not order an update assessment to obtain more recent insight into X’s views.  Ms J recommended against such a course as she felt X was already too deeply drawn into the parental conflict.  A further interview would simply require X to again demonstrate her alignment one way or the other.

7. The mother argues that X’s expressed views were unduly influenced by the father.  While the father certainly discussed the issue with X early on in the separation and X may have been affected by this, I do not consider I can simply disregard X’s wishes altogether. 

8. Both parties agree that X’s relationship with her mother has improved in recent months and this is a significant factor.  Nonetheless X’s earlier views were clear and should be given due weight.  Not to do so may actually have the effect of undermining X’s relationship with her mother, by giving X a sense that her mother is ignoring her views.

(b)   the nature of X’s relationship with each of her parents and other relevant people

1. There is no doubt X enjoys a strong and loving relationship with her father.  The quality of X’s relationship with her mother is more complex, but I do not consider there is any intrinsic problem within the mother/daughter dynamic. The observed interaction between the mother and X during the family assessment was unremarkable.  While Ms J noted X’s behaviour with her mother was demanding at times, she described their play together overall as “calm and settled with X smiling and engaging in discussion with Ms Dawe”.[7]

   [7] Ms J’s report, p.8,

2. The mother alleges that the father undermined her parental role with X, particularly after he implemented the “week about” care arrangement in the months leading up to separation.  She alleged the father would undermine her discipline or would side with X, agreeing that her mother was being unreasonable or unfair.

3. The father disputes this but I conclude the father’s behaviour did undermine the mother’s relationship with X, even though he may not have intended to do so.  The father is very confident and sure of himself.  No doubt he believed that his actions were appropriate, for example, laying down a disciplinary framework within which the mother should manage X’s behaviour.  The father may have believed he was supporting the mother, but his actions are more likely to have undermined both X’s respect for her mother’s proper parental authority and the mother’s confidence in her own parental capacity.

4. This is not to say that the issues within X’s relationship with the mother are purely as a result of Mr Dawe’s influence.  The mother must take some responsibility for the impact her own behaviour has had upon her relationship with X.  Ms Dawe acknowledged that she needed to communicate more clearly and not over-react when responding to X.  She was able to discuss this with Ms J and acknowledged that she has had to learn a different approach to X, with greater discussion and negotiation.[8]

   [8] Ms J’s report, p.16

5. Both parties agreed that X’s relationship with her mother is much more relaxed and positive now.  This is hardly surprising given that everyone has had time to adjust to the separation.  X has had time to settle into her new living arrangement between her parents’ two households.  Both parents have settled into their new parenting responsibilities and are beginning to move on from the hurt and distress surrounding the separation.  This reduces X’s emotional load and frees her from any need to align herself with one parent or the other.

6. X enjoys strong relationships with her extended maternal and paternal family.  I have no doubt both parents will continue to support these relationships in the future.     

(c)    the willingness and ability of each of X’s parents to facilitate or encourage her relationship with the other parent

1. The father argues that the mother has not supported his relationship with X, particularly in the weeks immediately following the separation.  While Ms Dawe may have had some legitimate concerns about the father undermining X’s relationship with her, it is clear that their very limited time together was a source of distress for X and Mr Dawe in these early weeks.

2. Aside from those first few weeks however, there is no evidence to suggest that Ms Dawe will not facilitate and encourage X’s ongoing relationship with her father.  There have been no difficulties with the implementation of Court orders over the past 12 months. Indeed there is some evidence of an improvement in the level of flexibility between the parents, where they have agreed to vary X’s care arrangements from time to time.

3. The father says that he also respects X’s ongoing relationship with her mother and would actively support it.  Some of his behaviour in the weeks and months following separation seem to contradict this, insofar as he has indirectly or implicitly undermined the mother’s role in X’s life at times.

4. I accept that this behaviour occurred early in the separation and both parties have moved on to a different point in their co-parenting dynamic. The father agrees that X’s relationship with her mother has improved, describing it as ‘the best it has been’.  That being the case, I am confident that the father will support their ongoing relationship and will certainly comply with any Court orders in place.  

5. Nonetheless, I remain concerned that Mr Dawe may react in a way that would again implicitly undermine the mother/daughter relationship, should X complain about her mother’s behaviour in the future.  I am not suggesting Mr Dawe would do so deliberately, rather that he may react out of a misplaced understanding about how best to support his daughter. 

(d)  the likely effect of any changes in X’s circumstances

1. In determining X’s best interests, the Court is not constrained by the parties’ two proposals.  However, I am satisfied on the evidence before me that X’s best interests are promoted by ensuring that each of her parents continue to play a substantial and significant role in her life.

2. Ms J was concerned that placing X in the father’s primary care may undermine X’s relationship with the mother.[9]  Ms J also raised concerns about the parents’ capacity to implement a co-parenting regime.  She discussed the possibility of parallel parenting but noted that this solution places a greater emotional burden upon X.  In circumstances where the parents are unable to manage their parental responsibilities effectively to support their child’s emotional welfare, X would need to ‘pick up the slack’, with the consequential developmental risks for that come with this level of responsibility. 

   [9] Ms J’s Family Report, p.16

3. Both parents acknowledge X’s relationship with her mother has improved over the last few months.  The Court should carefully assess any possible changes, to ensure that this positive development is not compromised.  At the same time, there remains a risk that X may once again blame her mother (albeit with no justification) if she feels that the parenting orders are unfair in some way.

(e)    the practical difficulty and expense

1. There are no practical difficulties relevant to this dispute. 

(f)      parental capacity to provide for the needs of the child including emotional and intellectual needs;

1. the parents’ attitude to the responsibilities of parenthood;

Section 60CC(4)   the extent to which the parents have fulfilled, or failed to fulfil, their responsibilities as a parent

1. I will discuss these considerations together, as they are inter-related.  There is no dispute that both parents are able to provide for X’s day to day care and that X’s needs are generally met by each of her parents.  I am also satisfied that both parents are able to provide for her intellectual needs and to support her through her education and into her high school years.

2. Both parents love their daughter deeply and are devoted to her welfare.  They both take their parenting role very seriously and neither party could be accused of neglecting their parenting responsibilities.   However, it is clear that they hold very different views about X’s needs and about how bet to parent their daughter.  This has led to disagreements and conflict between the parties, both before and after separation.  More significantly, it led to a breakdown in trust and therefore a breakdown in effective parental communication, to the extent that both parents have failed in this aspect of their parental responsibilities at present.

3. Both parties say that the other parent is not meeting X’s emotional needs.  The father argues that the mother has behaved unreasonably and unfairly towards X, to the child’s detriment. He says the mother responds too harshly towards X.  There are certainly criticisms to be made of the mother’s parenting behaviour.  Ms Dawe acknowledged that at times she could be too reactive to X’s misbehaviour and that she needed to broaden her range of responses.  Ms J’s recommended that the mother seek some support in that regard.  The mother consulted with a psychologist, Ms D to develop broader parenting strategies within her relationship with X and has found this support helpful.

1. The mother says the father has compromised X’s emotional welfare by drawing her into the adult dispute and consequently encouraging X to take sides.  The father’s first telephone call with X after the separation is a case in point.  Within the first few minutes the father was telling X that “nasty things get said” and “people go to Court”.  He went on to tell her that “Mum’s lawyers will say look you say these horrible things about Mr Dawe because that is the best thing and my lawyer will say look you say these horrible things about Ms Dawe because that is the best thing”.[10]  This seems an extraordinary discussion to initiate with his daughter, in the circumstances. 

   [10] Father’s Affidavit sworn 25 March 2013, Annexure 1

2. Further in the conversation the father then talked about one of X’s friends who “stays one week with her mum and one week with her dad” before asking X if that is what she wants.  Not surprisingly, X responds by saying “yes 50/50 would be best I think”.  From the father’s very first conversation with X he has drawn her into the conflict between her parents regarding her living arrangements.

3. The mother says that this behaviour has undermined her relationship with X.  She referred to the pattern of SMS text messaging that occurred between X and her father early on in the separation.  I agree that these exchanges, while overtly supporting X, often did so by implicitly criticising or undermining the mother.  These text exchanges sometimes went late into the night, which no doubt added to X’s whole sense of drama. 

4. The father says he was simply responding to X’s emotional needs at the time, but it would have been far more appropriate had the father confined the SMS exchanges, rather than expanding them.  This behaviour calls into question the father’s ability to provide an appropriate parental response to X.  Ms J expressed a similar concern, in that the father’s need to consult with X and to respect what he sees as ‘X’s wishes’ may place an undue burden upon the child.   

5. The father gave evidence that X believes that she can decide where she lives once she turns 12 years old.  His evidence seemed to suggest that this has been a topic of conversation within his household, although the father says that X has come to this view from her own sources, not from any information that he has provided to her. 

6. Ms J commented that the father’s role becomes crucial in situations such as this.  If the father supports (whether explicitly or implicitly) X’s belief that at age 12 she can decide where she lives, that will create a real problem for her, given that the Court will have already decided where she will live. 

7. Ms J was concerned that the father may not appreciate that he has a significant role to play in how X manages the Court outcome.  She reiterated that both parents, but particularly the father, need to explain to X that while she has a voice in the decision about her future living arrangements, hers is not the only voice. Ms J emphasised that both parents should explain to X that, as her parents, they have asked the Court to decide.  Once the Court has made its decision, the question of her parenting arrangements is finalised and the topic is closed. 

8. Turning to the parents’ current co-parenting relationship, both parties agree that they have been able to communicate more effectively in recent times.  They attended a school open day together with respect to X’s high school enrolment.  It is hard to imagine the mother would have felt confident to do so, 12 months ago. This suggests Ms Dawe is feeling more assertive and self assured within their co-parenting dynamic, albeit she still feels easily intimidated by the father.

9. Ms Dawe is concerned that any improvement in the father’s behaviour is a tactical ploy, designed to support his application for shared care.  She believes he will revert to his previous domineering ways, once the Court process is finalised.  While this is possible, it is equally possible that the father has reflected upon Ms J’s report.  Just as the mother is becoming more assertive within the co-parenting relationship, it may be that the father is also becoming more respectful of the mother’s role in X’s life and adjusting his communication and behaviour accordingly.

(g)  X’s overall maturity, sex, lifestyle and background

1. X is 11 years old.  She is currently in grade 6 and is apparently progressing well at school.  Ms J noted there were no concerns regarding X’s school performance.

2. Ms J considered X presented at an age appropriate level of maturity, whereas the father believed X was extremely advanced for her age. Ms J went on to note that X is a somewhat precocious child who presents with a level of self confidence that belies her actual maturity. [11]  She queried whether this led the father to engage with X at a level beyond her years.  

   [11] Ms J’s Family Report, p.15

3. The mother and X are active members of their (religion omitted) congregation and their religious beliefs are central to their lives.  X told Ms J she ‘likes her religion a lot’.  She attends meetings on Sundays and Tuesdays, together with (omitted) on Saturdays and described these activities as important to her.  The (religion omitted) faith does not celebrate (omitted), Easter or Christmas, but X did not consider this caused any major difficulties within her friendship group.

4. Mr Dawe is no longer active within the (religion omitted) church.  He says that he still believes in the teachings of the Church, but does not attend services, or participate in (omitted).  However, the father made it clear that he supports X’s ongoing participation within the (religion omitted) faith.  He accepts the (religion omitted) teachings with respect to (omitted), dis-fellowship and so on.  His main concern was that X not be baptised into the Church at too young an age, so that she is sufficiently mature to understand the religious implications of her decision.

5. Despite the father’s acceptance of X’s faith, it seems that the (religion omitted) beliefs and teachings have caused some conflict between the parents. For example, Ms Dawe felt she could not consent to X standing for the Student Representative Council, as the (religion omitted) teachings do not allow members to participate or (omitted).  However, she made it clear to X that she should search her own soul when making her own decision and that she could ask her father to sign the consent forms, if need be. 

6. The mother agreed that she became angry when the father did sign the consent forms for X as she felt it would have been preferable for him to support her position on the issue.  There may be other occasions when X’s life within the (religion omitted) faith causes conflict between the parents in the future, given the different level of adherence they each demonstrate. 

7. In circumstances where the father does not actively pursue his (religion omitted) faith (unlike X and her mother) and given that he supports X’s ongoing participation in the faith, it seems appropriate that the mother have the ultimate decision making responsibility in the event the parents are unable to agree about any topic relating to X and her faith.

8. I do not consider the remaining s.60CC factors require further discussion.

Conclusions

Parental responsibility

1. I am satisfied the presumption in the favour of equal shared parental responsibility does not apply, in light of my findings about the father’s past violent behaviour.  Nonetheless the Court must consider each party’s parenting proposal when determining X’s best interests, including the father’s proposal for equal shared parental responsibility. 

2. X will continue to spend significant time in the care of each parent and both parents have a great deal to offer in terms of X’s future care, welfare and development.  Even on the mother’s case, X will be spending five nights per fortnight in her father’s care.  In those circumstances, allocating sole parental responsibility to one parent may not be an appropriate outcome.  At the same time, the mother continues to feel intimidated by the father and this power imbalance within the co-parenting relationship remains a significant factor. 

3. The mother’s presentation during the trial provides some insight into her overall emotional resilience.  Ms Dawe was highly stressed when she first entered the witness box, to the point of stuttering whilst giving her evidence-in-chief.  However she grew in confidence across the hearing and was able to respond to the husband’s cross examination calmly and coherently.  

4. Dr B raised concerns about the mother’s capacity to manage ongoing negotiations with the father and the impact upon her mental health.  I note that the mother has not felt the need to consult with Dr B on a regular basis across 2012/2013, notwithstanding she and the father are engaged in a form of co‑parenting at present.  It was only in February 2013 that the mother again consulted with Dr B and then as a result of the stress associated with the preparation for the upcoming trial.

5. Taken together, these observations suggest that the mother’s self confidence has flourished since the separation, which in turn suggests that she is increasingly more assertive when communicating with Mr Dawe.  When both parents treat the other with courtesy and respect, they are better placed to negotiate and far less likely to find themselves locked in ongoing conflict.

6. I consider there is real potential for these parents to develop an effective, respectful co-parenting relationship, given time.  However, there will need to be clear structures in place to deal with any disagreements, including formal family dispute resolution, if necessary.  Mr Dawe needs to understand that he cannot simply “push through” a resolution, as he has done in the past.

7. I conclude that the parties should share equally in parental responsibility and consult in relation to major long term issues about X’s future welfare, including consultation with a family dispute resolution practitioner, if necessary.  In the event the parties remain unable to reach agreement about an issue however, I conclude that it is in X’s best interests for one parent to be authorised to determine the topic in dispute.  This provides a clear framework within which the parties will manage their future parenting responsibilities and reduces the potential for further litigation. 

8. As to which parent should hold this responsibility, I have considered this matter carefully and I conclude the mother is the parent who should be authorised to exercise sole parental responsibility on any given topic, should family dispute resolution prove unsuccessful.  The father’s past behaviour has caused many of the difficulties that presently exist between the parties.  The Court is optimistic that he will continue to engage more respectfully with the mother in the future, however he still needs to earn the mother’s confidence.  

9. X’s religion is also a factor. While the father supports X’s participation in the (religion omitted) faith, the mother is the parent most involved with the Congregation and will continue to guide X in that regard.   The (religion omitted) faith is clearly important to X and it is important that her religion does not become a battleground between her parents. 

10. More generally, I note that in the 15 months or so since separation, the mother has demonstrated that she is open to consider perspectives other than her own.  She has reflected upon Ms J’s report, sought counselling support, and has been willing to act upon the advice and guidance she received. I am confident that the mother will bring the same flexibility to decisions regarding X’s long term care and that she will consider both parents’ point of view on any given topic, particularly within a formal dispute resolution process.  Should a specific major parenting issue remain unresolved, I am confident the mother will exercise her sole decision making responsibility respectfully and in X’s best interests.

11. The mother acknowledged that communication between the parties has improved in recent months.  Hopefully these orders will ensure the parties continue to communicate co-operatively and respectfully in relation to their daughter’s care after the Court proceedings are concluded.

X’s parenting arrangements

1. X is presently living with her father five nights per fortnight and her mother nine nights per fortnight.  Both parents acknowledge that X’s relationship with the mother has improved in recent months and it would seem that the present care arrangements have allowed X to maintain a positive relationship with both of her parents.  At the same time, X has made it clear she wants to increase her time in the father’s care and the Court should not ignore her views, given X’s age. 

2. Ms J was concerned about the implications of a shared care arrangement in light of the communication difficulties between the parties.  While the mother continues to hold doubts that the father’s more respectful behaviour will continue beyond these Court proceedings, I am less concerned in that regard, particularly in light of the parental responsibility orders now to be made by the Court. 

3. I am satisfied the father has come to understand that it is in X’s interests that her parents behave politely and respectfully towards each other in all of their communication, whether X is present or not.   Having said that, I also see some benefit in allowing the existing parenting arrangements to continue for some time yet, to allow further time for the co-parenting dynamic to improve and more importantly, to further enhance and strengthen the mother’s proper parenting role in X’s life.   

4. I conclude that the existing care arrangements should continue until X finishes primary school. However, upon X commencing high school in 2015, I conclude it will be in X’s best interests to move to a week about parenting arrangement, in accordance with X’s views. I consider this arrangement provides a properly balanced outcome between X’s wishes and the other relevant s.60CC factors, particularly focussing on the parents’ capacity to implement a shared parenting regime.

5. This outcome reassures X that her voice has indeed been taken into account in the Court’s decisions about her long term living arrangements.  At the same time, the timing of the change also makes it clear that her views are not the only deciding factor in her future parenting arrangements. 

6. The next 16 months will allow the parents time to further develop a co-operative co-parenting dynamic and for the parents to implement the Court orders with respect to parental responsibility.  It will also provide an opportunity for the parents to explain and reiterate to X that they jointly asked the Court to decide her living arrangements and the issue is resolved by these orders.

7. To their credit, the parties also reached agreement about a range of ancillary parenting orders.  I am satisfied those orders are appropriate and I make those orders accordingly. 

8. I now make orders as published at the commencement of these Reasons.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Kelly

Date:  13 August 2013