DENHAM & WHELAN
[2011] FMCAfam 603
•12 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DENHAM & WHELAN | [2011] FMCAfam 603 |
| FAMILY LAW – Contested parenting applications – father alleges child should live with him as mother has a history of abusive relationships and drinking to excess – child fearful of mother’s partner’s drinking and arguments – father has heavy work commitments most of the year – family violence perpetrated by the father against the mother – father has unbridled bitterness towards the mother – best interests of child. |
| Family Law Act 1975, ss.60 B, 60CC, 65DAA |
| Mazorski and Albright [2007] FamCA 520 MRR v GR [2010] HCA 4 |
| Applicant: | MR DENHAM |
| First Respondent: | MS WHELAN |
| File Number: | BRC 5882 of 2010 |
| Judgment of: | Willis FM |
| Hearing dates: | 30 November 2010 and 1 December 2010 |
| Date of Last Submission: | 1 December 2010 |
| Delivered at: | Cairns |
| Delivered on: | 12 August 2011 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondents: | In person |
ORDERS
That the child [X] born [in] 2002 (“the child”) live with the mother on the condition that she re-engage with a counsellor from a recognized agency in relation to family violence and continue to attend upon that counsellor as recommended. The mother is to file and serve an affidavit within 14 days of today’s date deposing to the name of the agency or counsellor upon whom she will be attending.
The child is to commence living with the mother on 12 August 2011 at the conclusion of today’s hearing.
That the child spend time with the father at all times as agreed and failing agreement only at the times as set out in these Orders.
Regular weekend contact
The child will spend time with the father on each alternate weekend. The first weekend will commence on 26 August 2011. The weekends will commence after school on Friday and conclude at 5pm on Sunday, or in the event Monday is a public holiday, at 5pm on Monday.
The father is to collect the child from school on Friday afternoons. In the event that the father is not able to collect the child from school, the father is to collect the child from the [H] Contact Centre in [G] at a time nominated by the mother after school being no later than the time [H] closes. The father is to inform the mother, the school and [H] in the event that he is not able to collect the child from school, such advice to be given no later than 2pm on the Thursday preceding the Friday that the father is to collect [X].
The father is to return the child to the mother at the [H] Contact Centre in [R] on Sunday afternoons by 5pm, or in the case of a public holiday on the Monday, then at 5pm Monday.
Each of the parties are to do all acts and things to complete the intake procedures to enable handovers to occur pursuant to these Orders at [H] in [G] and [H] in [R].
During the swimming season, in the event that the child wishes to participate in the swimming program for the state age championships and that occurs during the mother’s weekend, the mother is to ensure that the child attends for the swim meet only (not the whole weekend unless by agreement), noting that this is to occur on a maximum of three weekends whilst the child is in the mother’s care. The father is to advise the mother no less than fourteen days in advance that the programmed swimming event is to occur.
In the event that the father spends time in [G] on a Sunday with the child pursuant to these Orders (or Monday in the case of a long weekend) the child is to be returned to the mother at [H] in [G] instead of [H] in [R].
The father is to spend time by telephone communication with the child each Wednesday and Sunday evenings commencing at 6.45pm. The father is to initiate the Wednesday call and the mother is to initiate the Sunday call.
Holidays
The weekend contact that the child spends with the father is suspended during all of the holiday periods referred to in these Orders, commencing from the first weekend of the holidays and concluding on the last weekend of the holidays.
The child is to spend the first half of the school holiday periods with the father in Easter, June/July and September school holidays each year. The child is to spend time with the mother for the other half of each of these holidays.
The child is to spend time with the father for one half of the Christmas School holiday period being the first half in even numbered years and the second half in odd numbered years. The child is to live with the mother for the other half of each of these holidays.
The father is to collect the child from school on the last day of school prior to the school holidays commencing (or if he is unable to do so, from [H] in [G] on terms as referred to in Order 5 herein). The father is to deliver up the child at the half way point in the holidays to the mother at [H] in [R], unless the child is in [G] on the last day of his holiday period with the father, at which time the father is to deliver up the child to the mother at [H] in [G].
When the child is living with the father during the holiday periods referred to in these Orders, the father is to facilitate the child ringing the mother each Wednesday and Sunday at 6.45pm. The father is to ensure that the child has telephone contact with the mother in a quiet undisturbed fashion and out of range of the father’s voice and other loud talking and background noise.
When the child spends the last weekend with the father prior to the commencement of the school holidays, the father’s weekend contact will commence on the first weekend after the conclusion of the holiday period, and when father has the second half of the holidays, the father’s weekend contact pursuant to these Orders will recommence on the second weekend after the commencement of school.
The child will always spend Father’s Day with the father and Mother’s Day with the mother and the parties should swap weekends to enable this to occur.
The child’s birthday
If the father is in [G] on the child’s birthday on a school day, the father will spend 2 hours with the child on the child’s birthday in [G] commencing at 3pm and concluding at 5pm. The father will collect the child from school and return the child to [H] in [G] by 5pm.
In the event that the child’s birthday falls on a non-school day, the child will spend one half of the day with each parent, to be taken so that the parent with whom the child is otherwise living on that day will have the first part of the day and deliver up the child to the other parent no later than 1.30pm. The other parent will spend time with the child from 1.30pm to 5pm returning the child to the closest [H] to the resident parent.
Parental responsibility
The mother is to have sole parental responsibility for making decisions to do with major long term decisions about the child. Such decisions include but are not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
Counselling
The mother is to forthwith enrol the child in counselling with a recognized agency as recommended by Mr O. Each of the parties to all acts and things to ensure that the child attends counselling when it is scheduled to occur. Each of the parties are directed to participate in the counselling, only as and when directed to do so by the counsellor.
Restraints
Each of the parties are restrained from drinking alcohol to excess when the child is in their care.
The father is restrained from consuming or being under the influence of any illegal drug at any time the child is in his care.
The father is to file and serve and affidavit upon the mother and this Court forthwith upon being charged with any drug offence or being investigated by the police for any drug offence.
Each of the parties are restrained from making arrangements for the child which occur during the other parent’s weekend, without the prior written agreement of the other party except as referred to in these Orders.
The mother is restrained from bringing the child into contact with
Mr M.
Each party is restrained from showing the child any document associated with this litigation or discussing the contents any document referred to in this litigation.
IT IS NOTED that publication of this judgment under the pseudonym Denham & Whelan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 5882 of 2010
| MR DENHAM |
Applicant
And
| MS WHELAN |
Respondent
REASONS FOR JUDGMENT
This parenting application is regarding a bright and loving child called [X], the only child of the relationship between the Mr Denham (“the father”) and Ms Whelan (“the mother”). [X] was born [in] 2002 and at the time of trial [X] was 8 years of age, almost 9.
[X]’s parents separated in July 2005 and on 18 November 2005 when [X] was aged about 3 years old, the parties entered into Consent Orders (“Consent Orders”) which provided for [X] to live with the mother and spend time with the father on each alternate weekend from 4pm Friday to 6pm Sunday and one half of the school holidays. These are the arrangements that have been in place for the past five years, up to June 2010.
In June 2010 the father refused to return the child following weekend contact. The father retained [X] in his care on the basis that the child did not wish to return to the mother’s home primarily because of the child’s fear of the mother’s then partner, Mr M. This event led to an interim hearing, a child inclusive conference and an Order subsequently being made that [X] was to live with the father in [M] while the matter was prepared for a final trial.
As at the trial date, the parties are unable to agree as to the future living arrangements for [X]. The father submits that [X] should remain living with him in [M]. He contends that the mother’s capacity to provide a home life for [X] is lacking and cites the mother’s previous conduct in drinking too much and having boyfriends who have been physically violent or abusive toward the mother as creating a very difficult and troubling home life for [X]. He says that [X] is enjoying himself and that he is not exposed to the kind of household that the mother has had [X] and his half sister [Y], living in.
The mother submits that [X] should return to live with her with whom he has lived his whole life. The mother submits that [X] is very close to herself and his half sister [Y]. The mother contends she is the only parent who offers [X] the opportunity to maintain a close relationship with [Y] with whom he has grown up. The mother says that she realizes she has made mistakes in the past. She refers to remaining in relationships which involved violent partners (and she includes the father in this category), and drinking to excess in the past. She says, however, that she has had an awakening about the effect of that conduct on herself and [X] and learnt from her experiences. She submits that the father has been treated for alcohol abuse in the past and still continues to drink. She says that he has been violent to her in the presence of the children and that he is regular user of marijuana and has on an occasion used amphetamines. The mother also submits that the father’s lifestyle is such that he is not in a position to supervise [X]’s day to day arrangements given the nature and extent of his work commitments as a [omitted]. At the trial the mother said that her relationship with Mr M had ended and would not be resumed. The mother said the comments of [X] regarding Mr M had taken their toll on the relationship between herself and Mr M and he would not be returning.
Background
The father says he was born [in] 1975, making him 35 years old at the time of trial. The mother was born [in] 1974 making her 36 years old at the time of trial.
The parents met in 2001, and separated in 2005 when [X] was around 3 years. They have been separated for around 5 years. When the parties met the mother had another child [Y], then aged around 3 or 4 from a prior relationship. [Y] lived as part of the family with the parties. [Y] was around 8 years old at the time of separation and is now aged 13.
[Y] lives in shared living arrangement with her father and the mother, both of whom live fairly close to each other in [G]. [Y]’s father and the mother have worked reasonably co-operatively in an informal shared residence arrangement. [Y] is in grade 8 and she has a close and loving relationship with her half brother [X], with whom she has always lived when she is with her mother, up until the interim hearing. The mother says that [Y] now moves between households freely, sometimes she stays for a week with the mother and then goes to her father, at other times she comes and goes each three or so days.
On 24 June 2010 the father filed interim orders seeking that the child remain living with him for the remainder of the school term, that [X] be permitted to travel to Darwin and Katherine on 26 June 2010 to
4 July 2010, that [X] not be brought within 500 metres of Mr M, that the mother remain sober at all times that [X] is in her care, that the child have unlimited phone access to his parents and that the father have sole parental responsibility. The father sought final Orders that [X] live with him and spend each second weekend and half the holidays with the mother, that the mother’s boyfriend Mr M have no contact with [X] and that the child be protected by his parents from having to witness domestic violence.
On the first return date on 8 July 2010 before Federal Magistrate Spelleken, Orders were made for a child inclusive conference with a family consultant to be held on 13 July 2010. The court also issued subpoenas to the Department of Communities (Child Safety) and the Department of Education.
On 13 July 2010 Ms D, the family consultant appointed to conduct the child inclusive conference, gave an oral report after the child inclusive conference held that morning. I have obtained and read a copy of the transcript of the evidence of Ms D at the interim hearing, as requested by the father and agreed to by the mother. The interim hearing was resumed on 13 July 2010 when the evidence of Ms D was given orally. Following that evidence, the interim hearing was adjourned to the following day noting that the evidence had been distressing for the mother and the matter resumed on 14 July 2010.
During the final trial the father made several references to the comments made by Federal Magistrate Spelleken and the nature of the Orders made on an interim basis. On 14 July 2010 Federal Magistrate Spelleken, having heard the evidence of Ms D, ultimately decided that the child should live with the father. I will refer to her evidence more fully elsewhere in these reasons. Her Honour then adopted the mother’s draft Orders which included a provision that the child should spend time with his mother on any weekend that the child requests from Saturday morning until Sunday afternoon, such time to be extended to the public holiday if it’s a long weekend.
The father made submissions to me at the final trial that Federal Magistrate Spelleken had noted how rare it was to make Orders in terms of a child seeing a parent only when that child requested to do so. I note from the transcript, as submitted by the father, that Federal Magistrate Spelleken expressed surprise that the mother was suggesting that the Orders be made in these terms, effectively leaving the decision to the child to request time. In relation to the indication that the child was to request the weekend time, the father stated that I’m not sure how many he will request, although we’re even offering, you know, the three out of four. Her Honour in response stated I am a little bit surprised by the mother making that suggestion, but no doubt she has her reasons for it and they’ve been discussed with her solicitor. Can I say this; he may not think to request it[1]. Her Honour then told the father that it was important in terms of the father’s own case and for [X], that the father take responsibility effectively for organising time between [X] and the mother. The father said that he would definitely try absolutely everything in order….. yes[2] and that we understand it is so important.
[1] Transcript 14/7/10, page 6, line 20.
[2] Transcript 14/7/10, page 6, line 35.
It was also the mother’s position that [X] should spend the first half of the school holidays with herself and [Y] and that telephone contact should happen daily. Federal Magistrate Spelleken made orders accordingly and this was agreed to by the father[3].
[3] Transcript 14/7/10, page 8, line 1 - 5.
Since the Interim Orders were made, the child has spent time with his mother for one night on fairly regular alternate weekends or each three weeks since the making of those Orders. The time has not been three out of four weekends.
The parties in this matter have had a long and acrimonious history of continued arguments, alleged physical assaults, exposing [X] and [Y] to the direct line of fire of the inter-party conflict at handovers and incidents of domestic violence. Each admit to engaging in consuming alcohol to excess during previous periods of their lives, including whilst they were together which led to arguments and conflict.
The father admits he has had treatment for alcohol abuse prior to meeting the mother. The father says he continues to drink about a carton a week. The father admits to taking amphetamines on an occasion and to being a regular user of marijuana throughout the relationship and currently when the occasion presents itself. The father says he attended University for six years, that he did various majors; he kept changing his subjects and did not ever finish his degree. He then took up [occupation omitted].
The mother admits drinking to excess post separation, particularly during 2009/2010 when she was in a relationship with Mr M. The mother has lost her driver’s licence twice for drink driving in one
18 month period in the last couple of years, the second time being the following morning. The mother has been working as a [omitted] at the same firm for 3 years. She says that the people she works with are like a second family.
The father says that [X] has told his father on many occasions of incidents that have happened at the mother’s home whilst she lived with two partners. The first was Mr C, a violent partner. The second was Mr M who became regularly drunk and had many arguments with the mother in the presence or hearing of the children.
The mother alleges domestic violence against her by the father during their short and unhappy relationship and continued intimidation and controlling conduct by the father in the years post separation and up to the current time. She says she is worn out by the father’s abusive phone calls and his attitude towards her. The mother has twice sought and obtained protection through Domestic Violence Orders against the father in the post separation period, most recently in 2009. The father admits to leaving abusive phone messages for the mother as recently as 2010.
Notifications have been made to the Department of Child Safety in relation to the mother. Each notification has not reached the threshold of harm sufficient for the Department to take any further action.
Despite all of this ongoing turmoil in the life of the child, [X] is described by his teachers at [G] School as being a bright and delightful child who is achieving at the high end of his primary school studies. In her oral report on 13 July 2010 however, Ms D, the family consultant, gave evidence that it cannot be taken for granted that just because [X] is doing well at school that he is not feeling the impact of his parent’s ongoing conflict. Ms D said whilst children can’t control the ongoing conflict, the one area they can feel safe in and they can have some control over is their school, so they do put a lot of effort into that[4].
[4] Trancript 13/7/10, page 4, line 5-10.
The father has a girlfriend who lives in Brisbane and has children of her own who he sees from time to time. The mother informed the Court that her relationship with her former partner Mr M has ended sometime after the July 2010 hearing and will not be resumed.
Each of the parties were self represented at the trial.
Each of the parties gave evidence and were cross examined. Mr O, the Report Writer, also gave evidence and was cross examined.
I have had regard to the evidence of each of the parties, the transcript of the oral report of the Family Consultant Ms D and the evidence of Mr O, given at the trial and written in the Family Report.
In these reasons a statement of fact represents a finding unless otherwise indicated.
Competing applications
The father is seeking final Orders that [X] live with him. On the morning of trial the father handed up a prepared set of Orders which the father says are in line with the Family Report writer’s recommendations. The father’s Orders request that [X] live with the father and spend time with the mother on any weekend that the child requests to spend time with the mother from Saturday morning until Sunday afternoon, such time to be extended to the public holiday if a long weekend. When the report writer gave evidence at the final Trial, he did not support Orders which left the decision to have time with his mother up to [X].
During final submissions, the father handed up another Order as a substitute in which he proposes that if the Court determines that Orders should be made for the child to spend time with the mother at defined periods, those periods be subject to the proviso that the mother take the child on her weekend to the child’s extra curricular sporting activities which at this stage include swimming throughout the swimming season from September to April with the father and rugby now that [X] has allegedly expressed an interest in attending rugby, which is played from April to September. Together the two sporting commitments cover a twelve month period.
The father says he is prepared to extend the one night a fortnight on Saturday nights to include Friday night however, that is qualified with the caveat which applies to every weekend, which is that the mother ensures the child does not miss any sporting or recreational clubs or things that the child is currently enrolled in or wishes to become in enrolled in[5]. The father added that there could be negotiation about this being mindful of [X]’s actual and proposed weekend commitments or weekends could be swapped.
[5] Transcript page 201, line 20 25.
In the event the father is unsuccessful in his application for [X] to live primarily with him, the father seeks orders for [X] to live with him each alternate weekend and to also swap and negotiate with the mother to ensure that [X] also attends swimming carnivals that are qualifying events if [X] is not already with him on that weekend. The father anticipates these carnivals are on each second weekend and he estimates that it would be necessary to swap three times every summer[6]. Elsewhere in his evidence the father estimated that the swimming carnivals are each fortnight, sometimes every three weeks[7].
[6] Transcript p 203, line 5- 10 and page 202 line 5 - 30.
[7] Transcript page 202, line 10-15.
The mother seeks Orders that [X] live with her and spend each alternate weekend with the father from Friday at 4pm until Sunday with the time being extended to a public holiday if a long weekend. The mother says that if she is unsuccessful in having an Order that [X] live with her, she seeks Orders for three weekends out of four or a variation of that pattern.
Each of the parties accepts the benefit of handovers being at [H]. The mother seeks to include [H] in [G] where appropriate and not just [H] in [R]. The mother has also suggested that depending on the Orders made, it may be possible for the father to return to collecting [X] from school in [G] as was the case in the past.
The parties are each agreeable to sharing the holidays.
The mother wishes to have phone contact as it used to be in the Consent Orders. The father expresses a wish for no phone calls on Wednesday night, or alternatively later to fit in with the mid week [occupation omitted] that occurs on Wednesday night. He says the mother rings right when [occupation omitted].
The mother’s response document seeks an order for equal shared parental responsibility. The father sought an order for sole parental responsibility.
Witnesses - The father
The father, who was self represented, gave evidence and was cross examined. He provided to the Court a draft of final Orders sought obviously prepared by a lawyer. The father had sufficient opportunity throughout the trial to add oral evidence to his scant written evidence.
I have no doubt that the father loves [X] and that [X] and the father have spent plenty of enjoyable times together in the past. The father is, as might be expected of a [occupation omitted], keen for [X] to do well at swimming and proud of his achievements to date. The father is keen for him to swim in the age championships. The father strongly supports [X]’s interest in skateboard riding and other activities such as playing rugby. The father wishes [X] to attend to those activities all year as a priority. The father has a fairly relaxed attitude to parenting of [X] and allows him much independence.
The father was cross examined by the mother. This was a difficult task for her. Not only because she was also self represented, but also because of the father’s inability to stop talking over the top of her. The father continually spoke with rapid and unending sentences over the top of myself and the mother, despite many warnings to cease from doing so. At one point I adjourned the Court as a mechanism to stop the father talking over the mother given that the father simply would not stop talking when requested to do so. The father told me that when he appeared in the State Magistrates Court the presiding Magistrate had become irritated with him during that hearing for the same reason.
I observed the father for some hours over two days. He is a tall and imposing man. I have no doubt he would be a forceful and driven [occupation omitted]. Although the father is around the same age as the mother, he gave me the impression of being much less mature than the mother. He has led a peripatetic lifestyle.
At one point in the proceedings the father attempted to justify his continual talking over the mother and myself in the court room by saying he was “a leader.” The father gave speeches and lectures to both the Court and the mother at any and all opportunities. He often gave commentary rather than answering questions. He took every opportunity to regale the mother with all manner of criticisms, many of them going back for years. The father often corrected the mother’s speech and asked her to repeat what she had just said so he could highlight what he thought was the mother’s misuse of a word or phrase. He often held his finger out at the mother pointing at her as he told her how very wrong she was. I noted at least one of these occasions in the transcript and had the father confirm that this is what he was doing. His comments were at times acidic; his manner was at all times overbearing.
The report writer Mr O described the father as having unbridled bitterness towards Ms Whelan[8]. I agree with this description of the father’s attitude towards the mother. I found the father to be dismissive and insulting in his interaction with the mother and I saw no indication that the father had insight into his own conduct in this regard. It seemed to me the father was attempting to humiliate and intimidate the mother.
[8] Family Report paragraph 72.
The report writer Mr O described the father as garrulous and said that during the Family Report interviews the father had to be managed as he insisted on taking over the interview, liked hearing the sound of his own voice and talking about himself. His presentation was observed to be troubling. Mr O concluded amongst other things that it would be extremely difficult for anyone to negotiate with the father. This description accords with my own observations. I also consider that the father’s language shows a degree of grandiosity about himself.
Generally I found the father resistant to giving evidence against his own interests unless pressed to do so. At times his answers were deliberately evasive or lacking in candour. Where his evidence contradicts that of the mother, in the absence of any independent evidence, I prefer the evidence of the mother.
Witnesses - The Mother
The mother also conducted her own case. She stood quietly during most of the occasions whilst the father talked over her, pointed at her, lectured her, quoted evidence from various other hearsay sources, and highlighted that she had used the wrong word in her sentence in response to his questions. Several times the mother became exasperated and simply could not stop the father talking over her questions and she stood silent for the duration of the father’s tirade.
The mother was responsive in her answers. She was mature in her outlook and her evidence gave me the impression of an experienced and pragmatic parent.
The mother readily made admissions and gave evidence against her own interests. She said she had felt devastated and shocked at hearing the oral evidence of the Family Consultant who relayed an account of her discussions with [X] and the concerns [X] had with his home life. I found the mother to be genuine in her testimony and a more accurate and truthful historian than the father. I formed the view from listening to the mother’s evidence that she was deeply affected by [X]’s comments to the extent that she suggested orders that [X] only see her when he wished to. The mother gave me the impression that through the Court processes she had gained some recognition of her previous failure to acknowledge the difficulties her boyfriends and relationships posed for [X] and [Y].
The mother gave me the impression of an otherwise competent, mature and experienced parent who was well attuned to the sensitivities of [X].
I regarded the mother as a truthful witness.
Witnesses – The Family Report Writer
Mr O gave evidence and was cross examined. His view of the father as garrulous and needing to be contained during the interview process accorded with my own observations of the father’s dominating style observed in the Court room.
His report makes a recommendation that the child remains living with the father at this juncture and spends time with the mother. He used words “as per the current arrangement” but did not support the choice as to whether to see his mother or not being left to [X]. The report writer gave oral evidence that :
a)His most significant reservation about the mother being the primary carer was that he was not sure she had fully appreciated the seriousness of her past problems of drinking and being in violent relationships. Mr O said if he did not hold these doubts, his recommendation that the child continue to live with the father would have been different.
b)It is not appropriate or desirable to have an order (as sought by the father) which leaves the decision as to whether the child is to spend a weekend with his mother up to the child. It would give the child much more security to know that set arrangements are in place. It also means the child can have more order in his day to day existence. I accept this. I consider that the child would be in an intolerable position in having to choose each weekend whether he did what the father would like him to do, or saw his mother.
c)The father’s proposal as presented to the Court, for the child to spend each alternate weekend in the event that defined times are ordered, includes a proviso to be made that the child does not miss any sport that the child is enrolled in (or will become enrolled in) noting that the child is currently in swimming from September to April and wishes to participate in rugby from April to September. Such an arrangement does not allow the mother to spend meaningful time with the child, would not be a practical arrangement and places sport above the child’s opportunities and need to spend time with his mother.
d)He considered that the mother should have arranged counselling for both her children if they had been exposed to domestic violence as alleged by her, or been exposed to domestic violence within her subsequent relationships. He recommends that this occur even now for [X] and [Y] at an agency such as Relationships Australia. I intend to make this Order.
e)He considered that the relationship between the parties is characterised by disharmony, bitterness, acrimony, and that their relationship is entirely dysfunctional.
f)In his view an order for equal shared parental responsibility would be unlikely to work, as the parties have such poor communication. I will decide this when I work my way through the relevant best interest considerations and the primary considerations.
g)He says that the father’s presentation and reference to him as being “garrulous” is a reference to how difficult it was to interview the father. The father wanted to talk all the time during the interview, likes the sound of his own voice, wanted to talk over the top of the report writer and the report writer had to “manage” the interview as the father wanted to control the discussion.
The Family Report writer was not briefed with the Affidavit material of the parties. He was not present in court when the parties gave their evidence. I agree wholeheartedly with the observation in regard to the father that his presentation was problematic.
I note that in relation to family violence, Mr O referred to the family violence between the parties but he was unable to say from his interviews if the father was more violent to the mother or vice versa. He was clear that [X] had been exposed to volatility and family violence on the part of his fighting parents but he was not able to say if one was the perpetrator.
Mr O believed each parent should attend counselling with the emphasis upon substance abuse. Mr O is concerned with the father’s current drug use and continued drinking, noting his background and he is concerned at the mother’s drinking and lack of insight and the problems it has caused for the children.
Counselling from Relationships Australia or similar agency is also recommended for [X]. He has been subjected to long term conflict on an ongoing basis now for five years and counselling is required to address the affects of his parent’s ongoing acrimony. Mr O was concerned that with his past experiences and exposure to conflict that moving into adolescence, [X] may have more struggles about his sense of identity and confidence and that counselling would give him his own sounding board.
I have found Mr O’s report and evidence most helpful.
The Law
This application is governed by the principles set out in Part V11 of the Family Law Act 1975 (Cth) (“The Act”). In making parenting Orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA as “twin pillars”. Her Honour stated: The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from psychical and psychological harm. These are stressed in s.60B (1) which sets out the objects of the legislation in relation to children and are reiterated as the primary considerations in s.60CC (1).
When I determine the best interests of [X] I must consider the primary and additional considerations set out in s.60CC, noting that if an Order for equal shared parental responsibility is to be made, I must have reference to s.65DAA (5) which canvasses issues of reasonable practicality as referred to in MRR v GR [2010] HCA 4.
In their initial Consent Orders of 18 November 2005 the parties each had shared parental responsibility. The mother continues to seek an Order for equal shared parental responsibility. The father proposed Orders for sole parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. An Order for equal shared parental responsibility will not be made if it is not in the best interests of [X] that such an Order be made.
There are no issues of child abuse in this matter, however, there are issues of family violence which have occurred in the presence of [X]. If an Order for equal shared parental responsibility is made, the legislative pathway requires that I consider the child spending equal time with each parent and if not equal, then significant and substantial time. Before doing so the two issues referred to in s.65DAA (i) of reasonable practicability and best interests of the child have to be answered in the affirmative. When those two threshold issues are addressed and answered in the affirmative, only then am I able to consider equal time and if equal time is not in the child’s best interests, then I must do the same exercise in relation to considering significant and substantial time. If neither equal time nor significant and substantial time is in the child’s best interests, then an Order is made based on the child’s best interests.
This case involves competing applications by each parent to be the primary carer of [X]. The father lives in [M] and the mother lives in [G].
As to the proposals of the parties, neither party is seeking an order for equal time given that each party lives in a different township and the geographical distance between their respective homes. There are obvious practical difficulties for [X] that arise from this distance which I accept.
Evaluating the competing proposals –s.60CC factors
Section 60CC (2) The primary considerations are: The benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The primary considerations as I have already referred to are the benefit of the child to have a meaningful relationship with each parent and the need to protect the child from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The report writer has expressed an opinion that the child needs to be protected from the ongoing acrimony and bitterness of the parental dynamic in this matter. Each of the parties have admitted to arguments, conflict and physical confrontations in the presence of [X] at separation and post separation.
I will examine the competing allegations in regard to the specific family violence allegations under the relevant s.60CC (3) heading. I am mindful in this matter that Orders need to be made to protect [X] from ongoing exposure to the entrenched parental conflict and likelihood of further family violence. I am also mindful of the exposure that [X] had had to conflict and violence between the mother and her two other partners.
I will now turn to discuss those factors which are relevant to the competing applications as referred to in section 60CC.
Section 60CC 3 (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
[X] is described in his school records from [G] School where he attended all of his school life until the interim hearing, as being a wonderful and delightful student. The report writer considered that he was mature and very bright. Mr O has described him as an emotional little boy.
[X] told Ms D at the interim hearing that he thought he was at the child inclusive conference because of “family stuff” which he later clarified and said well mum’s boyfriend is always getting drunk. He is swearing and then I can’t sleep. He then next morning takes me bike riding and asks for my forgiveness and then it starts all over again[9] [X] also reported He calls mum swear words and mum kicks him out. Then he comes back and he says he’s sorry and then he comes into my room and he grabs my teddy and he rubs it in my face. Then mum pushes him out of the room and he’s still holding on to the teddy and he says “I love you [Ms Whelan]” and then - he said this happens about once a week and it makes him feel like crying.
[9] Transcript 13/7/10, page 4, line 20 - 35.
[X] also said When [Mr M] is not there I sleep with mum because he gets scared of the dark, I think someone is going to pop out and he’s going to be there drunk.[10]
[10] Transcript 13/7/10 - page 4 line 30 - 35.
At that time [X] expressed a view to want to try living with his father. He said he wanted to spend more time with his father and that I’d kind of like to give dad a go[11]. [X] at that time was not trusting of the mother or Mr M. [X] explained that Even if Mum said [Mr M] won’t be there, I don’t trust her. He’s supposed to live with his mum, but he’s always at my mum’s. [X] said that he and Mr M used to be best friends. [X] said Two years ago, we were best, best friends until he started to get drunk.
[11] Transcript 13/7/10, page 6, line 10-15.
[X] also expressed a wish for his mum and dad to live together which Ms D noted was typical of most children.
Prior to the final hearing, Mr O undertook an assessment of the child and the child’s views. At that stage [X] had been living with his father for about 4 months.
When Mr O interviewed [X] for the preparation of the family report, [X]’s initial enthusiasm to try living with his father had changed and turned into uncertainty. [X] was tearful and uncertain whether he wanted to go back to his mother or not.
[X] was less than keen to say what he wanted. The impression gained was that [X] would prefer others to work it out. [X] said he missed his mother and his home, referring to his mother’s home. [X] himself stated that he feels lonely at his father’s and he feels like he doesn't belong.
The family consultant made observations that [X] has always lived with his mother up until July 2010 and that he has not yet settled into his father’s care.
[X] is nearly 9 years old and is still a young child. I am mindful of his remarks to Mr O and of the significant change that was made to his living arrangements on an interim basis in the midst of a long history of conflict and that [X] does not wish to express a view about his future living arrangements.
Section 60CC 3 (b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
[X] has lived with his mother all his life, until July 2010.
The report writer noted the strong bond of [X] with his mother and that he missed his sister and the more familiar environment of his mother. Whilst noting the primary bond was with the mother, his view was that the bond was imbued with anxiety due to the unstable relations between the parents and the mother’s use of alcohol and her relationships with men. Mr O considered that the mother was in denial about the extent of her problems noting that had marred her care of [X] up to the time of assessment. He noted the mother was not abstinent from alcohol.
Ms D also noted in her oral report that the child’s primary attachment was to his mother. I accept that this is so. The mother described [X] as sweet and loving. Mr O described him as an emotional little boy.[12]
[12] Transcript page 192, line 5.
[X] also has a strong and close bond with his sister [Y]. Whilst [X] lives with the father, he misses out on the opportunity to grow up with his sister [Y] as he has done in the past. [Y] and [X] are close and it is clear to me that they miss each other. Living in the same household, waking up in the same house, both going to and from school, sharing meals, the daily routine and their mutual experiences as children do when they live together are the incidental opportunities for siblings to bond. I regard the sibling relationship as a positive feature of [X]’s life with his mother. The father’s proposal involves [X] seeing [Y] when [X] is with his mother which will be each alternate weekend, generally commencing Saturday and ending Sunday and subject to [X]’s other sporting commitments.
Other significant people in [X]’s life have been his maternal grandparents and the mother gave evidence of their close involvement over many years, sometimes on a daily basis. They have recently moved from [G] to [T]. The father has poor relations with the mother’s parents and it seems there has been some hostility by the father towards both the maternal grandmother and grandfather. Whilst [X] remains living primarily with the father, his time spent with his grandparents will be reduced to the weekends he is with his mother. I have a lingering concern that the father’s hostile and aggressive attitude to the maternal grandparents will, in time, influence [X] and may lead to a diminished relationship between [X] and his grandparents.
[Y] does not have a good relationship with the father.
[X] is described as wanting to have good relationships with both parents[13]. [X] has had a relationship with his father in the past where he has spent weekends and holidays with the father and it seems at the interim hearing that [X] wished to spend more time than he was then having with his father as expressed to Ms D. Mr O described [X] as being happy and chatty with his mother, sister and father. [X] was affectionate and close with each of his parents and each were responsive to him. [X]’s father has been aware of [X]’s problems at his mother’s with Mr M and he has been genuinely concerned to help [X] and protect his interests.
[13] Family Report writer, page 192, line 5-10.
My strong impression is that by the time of the final hearing, [X] had been with his father long enough for the newness of the change to have subsided and that [X] was now aware that he was living in a very different day to day routine and life with his father than he had for the past five years with his mother and sister.
His life with his father seems to me to be much more impersonal than their weekends spent together. Over the course of a week [X] is at the swimming pool for hours every day. These are the same hours that the father is working [omitted]. The father during this time is not able to supervise [X] one on one and he is not emotionally available to support and interact with [X], who is still a young child, as might otherwise occur at home with the father, or as it did on the weekends when [X] spent time with his father.
The father showed no insight into appreciating life from [X]’s perspective. He viewed all [X]’s hours at the swimming pool as [X] having a great time and being the envy of other children that he was able to spend so much time at the swimming pool. The father made reference to [X] begging to go to the swimming pool each day and said that [X] is a popular kid in a small town, being the pool child who lives next door. Many kids are very jealous and envious.
Mr O said that the child’s primary attachment to his mother was imbued with some anxiety about (a) the unstable relations between the parents and (b) the mother’s use of alcohol and her relationships with men.
The unstable relationship between the mother and father is an ongoing matter. It seems to me that the Orders which best address [X]’s anxiety about his parents’ relationship are Orders that ensure the parties have very little opportunity to be in the same place at the same time. Also, with the level of past conflict, acrimony and family violence, I consider that it is not feasible to allow the parties to negotiate about matters to do with [X]’s care on a day to day basis. The father mentioned several times in his evidence that he and the mother could negotiate about weekends, swimming carnivals and sporting commitments. I do not accept that there should be room for too much negotiation between the parties as it will only lead to further conflict. This in turn will lead to more anxiety for [X].
As to the mother’s physically violent relationships, these are with
Mr C with whom the mother lived for a year ending around 2006 when [X] was two or three, and also with the father. The mother said when the relationship turned violent with Mr C she left. She says that [X] saw things he ought not to have seen.
In relation to Mr M, the father’s initial application was that Mr M have no contact with [X]. I note that [X] described he and Mr M as best, best friends for a period, and that their friendship deteriorated when Mr M took up heavy drinking in the past two years, arguing with the mother, and then apologising to [X] the following morning. [X] was exposed to the mother’s drunken boyfriend being abusive to his mother saying what he described as “rude words” to his mother and he was exposed to the fear of being in the household when this was occurring. This would be a most frightening experience for a child.
The mother said Mr M is not coming back, their relationship is over. Having read the mother’s comments at the child inclusive conference, in my view she then realised that changes needed to be made in regard to Mr M living in the house with [X].
I consider that the mother’s subsequent suggestion that [X] see her only when he wanted to, at that time, is an indicator that the mother wished to remove all pressure from [X] and allow him time to consider his position. This was a decision made with [X]’s emotions being paramount and an acknowledgment that [X]’s concerns were valid.
In regard to the mother’s drinking, [X]’s own evidence was that the mother had not drunk much for the last two or three years and that she did not drink heavily with Mr M; that she was watching out for [X]. The mother gave evidence that she has cut back her drinking further. I accept this.
Prior to the mother’s relationship with Mr C, the mother says that she was in a relationship with the father, and that he also was violent. I have examined the Family Violence between these parties closely under the relevant s.60CC heading.
The mother sought some counselling following the breakdown of her relationship with the father, but found her experiences difficult and she had to re-organise her plans to cater for herself and the two children. The mother says she now realizes she ought to have persisted with that counselling. I agree with the report writer who also was concerned that the mother had not continued with her counselling regarding being in domestically violent relationships. I consider that the mother has been genuine in her experiences of being shocked to hear the report of the Family Consultant, that she has learned a lot about herself from reading the Family Report and realizing that she has not always done the right thing as a parent.
As to the father’s relationship with [X], the father in my view is driven and committed to his own beliefs and opinions. I saw little scope or ability on his part to accommodate the views and opinions of others. The mother submitted that she is worried sick that [X] would end up like his father, talking over the top of everyone and feeling that he has to control every situation like the father. The mother also submitted that [X] is going to become subservient to his father’s views and controlling ways, and that [X] will struggle to assert his own opinions to his father, or to have an even handed dialogue with his father if differences arose, such as having a friend that the father didn’t like. Having regard to all of the evidence, my observations of the father and those of the report writer, I accept that the mother’s concerns are legitimate if [X] is to remain living primarily with his father.
Section 60CC 3 (c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
When [X] lived with the mother she was willing to swap weekends to fit in with the father’s arrangements. She has swapped weeks of the holidays to allow [X] to travel and see the father’s relatives, found out afterwards that [X] didn't go as planned, but takes no issues with that. When [X] was in grade one, two and three, the mother willingly allowed the father to remove [X] from school on a Friday morning from as early as 10.45am so that [X] could spend time with the father before the father had to start work on a Friday. The mother was prepared to do this as she considered that the time between father and son was beneficial for their relationship and that absences from school could be tolerated. The regular and early removal of [X] from school on a Friday is shown in the school records.
The father has not been so flexible nor has he been so willing to encourage a relationship between the mother and [X]. A Recovery Order issued post separation on an occasion when the father held over [X]. The father says he did this because the mother’s boyfriend attended at handover and according to the father he was not authorized to be the handovers. The mother agreed that the Orders said that her boyfriend was not to attend; however, she was caught at work and had no one else to attend to collect [X]. The father has shown little to no flexibility when the mother has asked for an indulgence about changing the arrangements.
The father throughout the proceedings emphasised that [X] did or did not wish to see the mother at certain times such as when [X] and the father attended at [G] for a swimming carnival on a weekend.
I do not accept the father’s evidence that [X] did not wish to see his mother. [X] has had a close and loving relationship with his mother, he is a sensitive little boy. He says he misses his mother. In my view, the father was obstructive in enabling or agreeing to the mother and [Y] spending as much time as possible with [X] whilst he was actually spending the day in [G], where the mother lives. The father raised the issue of not being able to do a handover at the swimming pool where he was attending a carnival, as the Orders stated the handover had to occur at the contact centre at [R]. The mother has asked him to attend handover at [H] in [G], but he refused to do so. The carnival was taking place in a public place. I do not understand why the father would not simply do a handover at the swimming pool.
The father refused to facilitate [X] spending Saturday night with his mother and sister, the father saying that [X] wanted to go to Brisbane the next day to go skate boarding with a friend. The father then called by the mother’s house, in contravention of the current Domestic Violence Order, allegedly to allow [X] to say one further goodbye to his mother. Notably the father used the opportunity to place an offer in the mother’s letter box together with a letter which the mother said was quite intimidating which said Take this offer or I will see you in Court.
I am critical of the father for not ensuring that [X] did spend time with the mother on this weekend. The father it seems to me is looking for reasons why [X] need not spend time with his mother at a time when [X] and the father were actually in [G] where the mother lives. The father had a myriad of excuses as to why [X] did not spend time with his mother in [G]. None of them were convincing. He has shown little real understanding of the importance of [X]’s relationship with his mother, or [Y]. This is exemplified in the Orders that he currently seeks, which include [X]’s first priority being sporting commitments over spending time with his mother on weekends. The father is in my view long on rhetoric about respecting the child’s relationship with the mother, but his actions and conduct speak for themselves.
On one occasion he has refused to take [X] to his grandparents at the conclusion of a period of his one half of the holiday period as the mother had arranged, and the father held on to [X] for a further four days until the mother returned from Cambodia. The father said he didn’t approve of the arrangement of [X] staying with his grandparents. The grandparents have played a significant role in the upbringing of [X]. The father held on to [X] until the mother returned from overseas. His reasons for doing so were not valid in my view but his conduct in doing so confirms my impression that the father does not value [X]’s relationship with his grandparents. The father then insisted that the mother collect [X] from [M] instead of delivering him to the mother.
The father raises the issue of the mother not returning his phone calls when he said he was trying to organise a mediation. The mother said that she arranged a time for mediation, but did not go, as she couldn’t bear the thought of hearing the fathers’ voice on the phone, and she knew he would not negotiate to anything other than what he wanted (which is what he said to her). Having watched the father for two days, including long periods giving evidence, I am quite satisfied that the process of negotiation would be quite foreign to the father. His communication style is not compatible with negotiating and being mindful of the opinions of others such as the mother.
There was an abundance of evidence though that the father had phoned [X] successfully whilst [X] was at his maternal grandparents and had lengthy conversations both overtly and covertly with [X] and [Y]. The father gave evidence that he would ring [X] and that [X] would hand the phone to [Y] who he says would willingly tell him things about the mother. The father said that the grandparents would not realize he was on the phone because [Y] would say that it was “[name omitted]” on the phone indicating that was a friend of [Y]’s when it was in fact the father. The father gave evidence of many long conversations with a myriad of details that he said he gleaned from [Y] and [X] when the children allegedly volunteered all of this information. The extent of the information that the father gave about what the children said suggested to me that the father had been extensively questioning [X] and [Y] for years from when they were very young.
The father spent time at the trial traversing issues of missed phone calls going back years. I was not satisfied that the situation was remotely as bad as the father suggested. There is no history of a contravention of the Orders by the mother.
Mr O has been critical of the chronic conflict between these two parents. I do not consider that the mother is entirely without blame in regard to the conflicts which have occurred in the past. She and the father were each involved in drinking to excess when they were together, their arguments were heated and a feature of their relationship. I am however, satisfied that notwithstanding this ongoing conflict and the mother’s poor experiences with the father and impoverished relationship, the mother has been prepared to genuinely facilitate and encourage a relationship between [X] and the father. If [X] lives with the mother, I am confident that, as has happened in the past, the mother will continue to encourage an ongoing relationship between [X] and the father.
In my view the father holds the mother in absolute contempt. The Family Report writer referred to the father having unbridled bitterness towards the mother. I accept this. In my view the father’s hostile and demeaning attitude towards the mother is a most significant issue and one which likely underlies his reluctance to willingly promote a relationship between [X] and the mother.
Section 60CC (3) (d) Likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either or his parents or any other child or person (including grandparent)
Living with the mother in [G] since separation, [X] had attended the same school since pre-school, his mother works designated working hours between Monday to Friday in normal business hours. [X] spent regular and frequent time with his maternal grandparents. He lived with his sister [Y]. The mother’s proposed Orders involve [X] returning to that living arrangement and returning to his school and old friends.
The father’s proposals involve [X] continuing to live in the arrangements which have been in place since July 2010 and attending the school in [M]. The father had [accommodation omitted] in September 2010, for a period of time.
The father says he is doing well at this school and given his records from [G] School, I have no doubt that this is so. [X] is a bright student. [X] was missing his old friends after attending [M] School for a period and the father tried to help [X] get in touch by email with at least one of his [G] School friends. When [X] spoke with the family consultant at the interim hearing, he was not troubled by the prospect of changing schools saying that he already knew some of the children that would be going to the new school because he had met them at the father’s [workplace]. The subpoenaed records show though he had told the principal in an earlier interview at [G] School that he was nervous at the prospect of changing schools. [X] found the reality of moving schools was that he very much missed his old friends of long standing at [G].
Living with the father, [X] has a very different daily routine which fits in with and is driven by the father’s occupation of [omitted]. Prior to the change in July 2010 to live with the father, the father spent each alternate weekend with the [X]. He said I was a weekend dad, where I would organise [omitted] to work the [omitted], or else [X] would come down with me, or at the end of last summer, we would go to [omitted] together.
The father may have been able to organise others to work for him on alternate weekends, however, on a day to day basis, the father’s own [omitted] commitments are substantial and time consuming. During the trial the father explained his occupation as [omitted].
The mother contended that the father’s work over seven days a week precluded him from properly supervising [X] and assisting with his home work.
In answer to a question about his work pattern, the father’s evidence was that he did not work in the off season unless he had to. The father said but I work seven days a week for seven months of the year. At the final trial, when asked his work hours the father replied from 6am until quarter to 9 in the mornings… That’s five days a week…that’s the week days, and 2.30pm in the afternoon until 6pm…Every weekday Monday to Friday… The father said he left home on weekdays next door to the [workplace], just before 6am as it took 45 seconds to get to the [workplace].
The father further explained that a 20 metre demountable club room exists separate from the kiosk with a microwave and a fridge. In the club room there were televisions and separate desks where [X] can do his homework after he’s done his swimming training.
As to the weekends the father explained that he worked both days. The father said and the weekends…Saturday is 11am until 4.30pm, which I’ve changed to allow contact, dropping [X] at his mother’s if it’s required, and then I can get back to work by 11am, and then on Sundays, it’s 9am until 3pm, also so I can finish up at 3pm and go and collect [X] on the Sunday afternoons.
The reality of the father’s work routine is that he is heavily committed to working seven days a week for the times he stated during the swimming season running from September to April. The father says that he is a sole trading business, running the [omitted][14].
[14] Transcript, 30/11/10 - page 28, line 10.
As to [X]’s routine the father said He wakes up on his own in the mornings, and that’s been his own request. I did have babysitters from the beginning, a 16 year old Year 11 student, part of the family, the [workplace omitted] club family, I guess. And [X] was waking up before her in the mornings, you know, with me in the mornings, anyway, and having himself ready very quickly, and wanting to come over and ride his scooter and play handball at the [workplace]. So it defeated the purpose of having her there. He has shown that maturity and responsibility that he can wake up in the house next door. I have his school uniforms and lunches packed and cleaned, laid out in the bathroom, and the lunch box in the - in the fridge as he wakes up in the morning, with a good morning note there as well, and he gets - has a shower, gets dressed, grabs his lunch box and puts it in his school bag, and gets on his scooter and comes over to the [workplace]. We have breakfast together… he can even - he even makes me a cup of coffee Your Honour and comes out and says good morning to me on [workplace omitted].
The father said at trial in relation to [occupation omitted] that he [omitted] every day from 2.30pm to 6pm. He said every day [X] rides his scooter from the school to the [workplace], has afternoon tea and then participates in the junior squad training each afternoon. The father when queried then said that [X] trained probably three or four afternoons a week and that [X] himself allocates a Thursday for homework if he becomes preoccupied on Monday and Tuesdays.
The father said that [X] had been going to judo training on a Wednesday with the father of some other boys who swim, and they are all collected by that father, taken to judo and dropped back to the father at 6pm in time for [occupation omitted]. The father described how [X] after training either does his homework or hangs around playing with other kids in a similar boat, older brothers and sisters doing the next squads, and they hang around and play.
The father described [X] as being very mature in terms of putting himself to bed, knowing our timetable and our routine for the week. The father also described [X]’s involvement in skate boarding saying that [X] has befriended a family that come up from Caloundra, half an hour away, up to [occupation omitted] with me twice a week in the mornings. [X] has befriended that family as well, and the 10 year old son comes up, [omitted], [X] goes to the skate park as well, it’s Monday and Thursday this week[15].
[15] Transcript 20/11/10 - page 26, 30/11/10.
The father said that he and [X] go home at the end of [occupation omitted], have dinner and the father gets the uniforms and lunch ready for the next day and [X] puts himself to bed after watching TV by about 8pm or 8:30pm.
The father also described a [omitted] meeting that he attends every third Thursday night of the month from 6pm to 7pm at which time the eldest of the four children of the secretary have been taking it in turns looking after [X] next door to their house while the mother and I are having the meeting in the club room with the other committee members.
The father leases [workplace omitted]. He was hopeful of renewing the contract in August 2011. Between April and August the father anticipates having time off for a couple of months, assess his finances and find some part time work if I need it Your Honour. But at this stage, things are going well enough that I’m planning for my winter.
The swimming carnivals that the father referred to occur every week early in the season and he attends every fortnight. The father says that [X] has already qualified for the 50 metre back stroke as an
8 year old, so he has a goal for the rest of the season to compete at the state championships in February 2011.
The father also works for half of the Christmas school holidays and most September school holidays (either all or half). The father spoke of the September school holidays as the beginning of the season or our main kick off for the season. The father says that June/July holidays he is free and Easter, though I note that he said specifically that he closes the [workplace] for Easter, but that seems to mean only one day. He said so Good Friday - I’ll be closed.
The impact of the parenting arrangements put in place by the father is that [X] is leading a very different lifestyle than he did living with his mother and sister. He has hours each day at the swimming pool in which he has to occupy himself whilst his father works [omitted]. It seems to me that whilst [X] may be surrounded by other pupils and their parents for much of the time at the pool, he personally has much loosely supervised time. [X]’s time with his father occurs whilst the father is [occupation omitted].
My strong impression is that [X] is leading a solitary life. He is alone much of the time, either physically or emotionally. He puts himself to bed and gets up in the morning alone, gets dressed and packs his school bag alone, and has to share his father’s time during the morning and afternoons during the week with all of the other [clients]. Homework is done at [X]’s discretion in the donga in the presence of other children and a television, whilst the father is working [omitted]. This happens for hours before school and again after school. The father is also occupied for many hours on the weekends unless he gets assistance from other staff. [X] is given much responsibility to care for himself in my view.
The overarching proposal of the father for [X] to live with him and spend time on alternate weekends with his mother and sister, in reality, provides very limited time for [X] to spend with his mother and [Y]. The timing is from Saturday to Sunday though the father did indicate he would substitute Friday to Sunday but only on the condition that [X] doesn’t miss any sporting or recreational activities in which he is enrolled or wishes to become involved such as rugby.
The father’s proposal proceeds on the basis that [X]’s swimming commitments will be on most weekends for six months a year (in addition to the mid week training and club nights), and then weekend rugby commitments that he proposes enrolling [X] along with any other commitments [X] wishes to be involved in, for the next six months. If I adopted the father’s proposals as they stand either at the beginning or end of the trial, [X] will likely go for many weekends seeing little of his mother or sister.
The sheer lack of physical time to be loved and cared for by his mother represents in my view a significant and negative change to what had been [X]’s life. He had lived primarily with his mother from 2003 to 2010. Significantly, I consider that between school and sporting commitments, [X] would have so little time with his mother and sister, that in all likelihood, the closeness of their relationship would be affected. The father’s proposal provides so little opportunity for [X] to receive physical and emotional comfort and support from his mother. His life would primarily consist of school and sporting commitments.
Mr O was of the view that the father’s proposal was most impractical and that it provided an opting out clause for [X] seeing his mother[16]. I accept this. I am troubled that his sibling relationship with [Y] will be severely impacted and suffer as a result.
[16] Transcript 1/12/10, page 203 line 10-15.
I am also troubled that the lifestyle [X] is living in is one in which [X] is left to occupy himself for hours on end, day after day. [X] told the report writer that he felt lonely. I accept that a young sensitive child as [X] is described would find life at his father’s home a much more solitary and lonely life.
The other aspect to the father’s lifestyle is that the father gave evidence of constantly moving since separation[17]. He said the longest he had been in any one place was less than two years. The evidence of his moving shows him spending sometimes only months at one place, before he moves to another. His regular movement from place to place provides me with little confidence that he will be in a position to offer a stable lifestyle and living arrangements in the future. As well as the upheaval of such constant moving, it could extend to changing schools.
[17] Transcript page 1/12/10, page 116 and117.
Often in the past he has had to live at one place and travel to [omitted] for work for 15 or 20 minutes. This is not a difficulty for the father when he lives alone, however, if this was the situation in the future, the further arrangements for supervision of [X] would need to be addressed with a carer staying over, as the father has organised in the past, or [X] going to work with the father for a 6am start.
At the time of trial, he had just secured a house next door to the [workplace] which the father said made things easier for [X]. The father pays $320 a week. There was no evidence that the father was on a formal lease, the father instead saying it was a private rent and No, it’s open. Yes, it’s a private lease. When asked is it week by week or monthly the father said that it was and that he paid fortnightly[18].
[18] Transcript 30/11/10 page 26, lines 5-25.
The father says he finds accommodation for the [omitted] season, however, during the winter he does not work unless he has too. In the past the father has taken up other accommodation during the off season. He says he sometimes does other work during this time if he needs to, such as [omitted].
In addition to having very different day to day arrangements at his father’s home, [X] has spent considerably less time with his mother and his sister.
The mother’s proposal for [X] to return to her home also now represents a change, as it means that [X] will see less of his father with whom he has been living, and [X] will have another change of school. He will however be returning to the home he has lived in with his mother and the school he has always attended since pre-school up to July 2010 where he has friends of many years standing. The mother submits that this will not represent a significant change. I accept this.
The mother’s proposals for [X] to spend time with the father have varied from each alternate weekend, to three out of four weekends or a variation on that. [X] has sustained a good relationship with his father seeing him each alternate weekend; the state of their current good relationship is testimony to that.
In relation to phone communication, the mother asks that the arrangements in the consent orders remain in place but that the phone calls happen in private. She says that during her phone calls, the discussion between herself and [X] is interrupted by the constant noise of the father talking loudly in the background. The father admits he talks loudly as says he has to do this as a [occupation omitted]. It is not an ideal setting to have phone contact between [X] and the mother, with the father talking loudly in the background. I intend to order that when [X] has phone contact with the mother that he be provided with a quiet space to do so.
Section 60CC 3 (e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties do not live close to each other. When the Consent Orders were made in November 2005, the father remained living in [omitted] and the mother lived in [G] with the two children.
They each have a car and each have accepted that driving for an hour or so is part of the contact arrangements.
The travelling between the parents’ homes is therefore the journey between [M] and [G]. The interim orders provided, for the first time it seems, for the parties to use the services of a handover centre known as [H]. Each of the parties agreed that the changeovers at [H] have been beneficial.
I am mindful of the evidence of a physical altercation at a handover in the presence of [X] and of the past and ongoing acrimony between the parties. The mother has given evidence, which I accept, that she is fearful of the father, he is overbearing, will not stop talking over the top of her and that he has been abusive through phone messages and texts. The father has described the scene at the changeover when the mother’s boyfriend attended contrary to the Orders and the physical violence which occurred at the time.
The mother says that the relief and lack of conflict from having handovers at [H] as opposed to the previous long standing arrangement of occurring directly between the parties, has been significant and that it should be maintained. The father also was in favour of using [H].
I am mindful also of the absurd situation which arose when [X] had a swimming carnival on during a weekend in [G] where the mother lived. The father’s desire to adhere to the changeovers at [H] at [R], rather than use [H] at [G] as suggested by the mother, was in my view obstructive. When pressed to answer why he wouldn’t agree to enrol in [H] in [G], the father finally answered I don’t know. The father gave no valid reason for not agreeing to change the handover to [H] in [G][19] .
[19] Page 71, transcript 30/11/10 - line 25.
To expect the mother and child to drive to and from [G] to [R], and then drive back to [G], and then drive back to [R] defies any logic.
For all of these reasons I consider that it is highly preferable that the parties do not encounter each other regularly at handover. I consider that it is important for the well being of [X] that handovers occur either at school or at [H], either in [G] or [R]. I also consider that collections from school would be appropriate as this would not involve the other parent being present and give the collecting parent an opportunity to engage with [X]’s school.
Each of the parties has their own work commitments. The father is, as he has said on numerous occasions, apparently in a position to hire and fire people and have [omitted] stand in for him. He suggests he has more flexibility than the mother. I note that he has altered the [work] times on weekends to give himself time to drop [X] off and collect him. The mother works set hours from Monday to Friday and occasionally on a Saturday morning. The father is critical of her for not insisting with her employers that she be given more flexible work hours. I am not. It is hypocritical of the father to adopt the attitude that he does in relation to the requirements of the mother’s work particularly when he admits he has paid no child support since separation and therefore the mother is the sole financial provider for [X] on a day to day basis.
Section 60CC (3) f The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
As to the dynamic between the mother and father the Report Writer was of the view that neither parent had the capacity to appreciate the effect that their acrimonious relationship has had and continues to have on [X]’s life. Mr O stated that the parents will likely remain locked into an entrenched conflict pattern, that there had been much conflict and arguing in the presence of [X] at handovers and that handovers need to occur cautiously. I accept this.
Likewise the report writer expressed reservations about the father and his past alcohol problems leading to spending time at a rehabilitation facility, that he still drinks and possibly to excess, his admitted use of marijuana throughout the relationship and his continued use, and his unbridled bitterness shown towards the mother. The father described himself to Mr O as he did to this Court as I am a [occupation omitted]. The father is noted as saying when he met the mother he had a pattern of [occupation omitted] and the drinking that accompanied that lifestyle. The father admitted the mother’s allegation that he had become so drunk during the relationship that he had once pissed on the TV.
Generally the mother has shown she is a responsible parent who has made appropriate arrangements for the children’s day to day lives. The issue with Mr M has been addressed. It did not reach the level of violence of her former partner Mr C, though I accept there were arguments and there was drinking on the part mostly of Mr M.
I considered that the mother was most genuine in her evidence that she had cut back her own drinking and that she had received a shock when hearing [X] talk with the family consultant.The mother said reading the family report has shown her that she has flaws in her parenting, that she can see she made bad decisions with her choice of two violent relationships one with the father and one with Mr C. She said she left the father and did get help from counselling with Scope but perhaps not for long enough. The mother says that her abusive relationship with the father has continued through his interaction with her, through his text messages and phone calls, the way the father speaks to her and looks at her even now and that his ongoing intimidation has consumed her life.
I accept that the father’s conduct towards the mother has been as aggressive and abusive as she describes. Given that this is the case, I consider that the mother has had a struggle to maintain her equilibrium in the face of this ongoing abuse.
Section 60 CC 3 (j) Any family violence involving the child or a member of the child’s family; and
Section 60 CC 3 (k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order; or the making of the order was contested by a person;
When challenged about the prior domestic violence at the trial, the father for the first time fell silent momentarily. He then quickly said that the orders were made without admissions, and he had a range of reasons for doing that, including it was no difficulty for him to have the order, and it actually ensured that the mother would behave herself.
His evidence then proceeded to be a self justifying account of his levels of frustrations and all of his behaviour was minimised or justified. I am satisfied that the father feigned memory loss of important details of the domestic violence and that he attempted to justify his poor behaviour rather than acknowledge it.
The father admits to having two Domestic Violence Orders taken out against him. The most recent Order was taken out by the mother in November 2009. An early Order had expired some years prior[22].
[22] Transcript, 1/12/10 page 181, line 30- 35.
He admits to be convicted of assaulting a police officer when he was at University at age 20 or so. In relation to the mother’s father and abusive behaviour, the father said he gave as good as he got. In relation to the mother’s father, the mother alleged that the father had made threats that he would be turning up at her doorstep in a threatening way.
The father himself admits to currently drinking regularly and to having a drinking problem earlier in his life and going to rehabilitation. He admits to regular drug use throughout the relationship and being a regular user of marijuana up to the time of trial. He admits to sending the mother repeated insulting messages and using foul language with the mother’s partner.
His intimidating style has continued right up to trial, by the father placing a proposal for orders that he wished to enter into in the mother’s letterbox and by leaving a note with those orders saying sign & return or I’ll see you in Court. Given that there is a “no contact” Domestic Violence Order in place, except for times as permitted in a Family Court order, the father’s explanation of being at the mother’s house was in my view disingenuous.
In relation to the family violence at separation, which Mr O described as a critical event, the father says the evening before he drank two cans of OP rum and three “tallies of Fourex bitter”[23].
[23] Transcript, page 104, line 35 – 40.
The father said that an argument ensured the next morning when the mother was leaving and taking [X] with her. As the mother was packing bags to leave the father was preventing her from doing so. He said he was unpacking bags, and throwing them back into the bedroom. He said the mother gave [Y] the car keys to sit on, and the mother said that happened because the father would always take the keys and prevent her from leaving. The father admitted that he had possibly hidden the keys before. The mother said when she tried to leave the father physically stopped her from leaving by dragging her around the bedroom by the legs, pulling her clothes off. At this time the father was throwing the mother’s belongings back into the bedroom. The mother fell to the floor when the father grabbed her leg. He says that the mother kicked him and he grabbed her foot during the kick and she fell. He denies pulling her clothes off, dragging her around the room. The father says instead that It was a right bum cheek that it was nothing like that… That left bum cheek, right, of her pyjama pants is not pulling her pants off dragging her around the floor.
The father admits that he went out to the car and pulled out a lead from under the hood so that the mother and children could not go anywhere at that time. The father denies that [X] who was still in nappies at the time was screaming as alleged by the mother. He says he has discussed it with him about a year ago, and that [X] has no memory of this. The mother also alleged that the father hit her in the face with an open hand during this argument. This is denied by the father. [Y] told the report writer she saw this.
Even on the father’s version of events, I am satisfied that his behaviour towards the mother and her property has caused the mother to reasonably fear for her personal well being and safety.
The father has admitted to saying to the mother you are the most disgusting filthy-haired woman I have ever met[24]. He admits to calling the mother a filthy lice ridden bitch[25]. He says he said these things when he was upset and furious with the mother, over head lice amongst other things. I accept that he called the mother a disgusting whore.[26] The father admitted to making foul phone calls to the mother with abuse such as “head lice maggot” all because he wanted to have a mediation and the mother wasn't writing letters to him and he was angry.
[24] Transcript p111 line 30.
[25] Transcript p 112 line 1.
[26] Family Report paragraph 15.
The parties engaged in another incident at handover, in an altercation in which the father alleges he was crash tackled by the mother. [X] told the family consultant that he saw his mother crash tackle the father. The mother denied that she did attack the father and gave her version of events. She said she has been fearful of the father for years and that she always dreaded handovers and the intimidation from the father which has continued up to the present time with abusive texts and phone calls.
The report writer was not able to determine one way or the other if one person was the perpetrator, noting that the allegations went both ways. His impression was that the parties have engaged in violence to each other, though if the Court accepted the evidence that the father had committed acts of domestic violence as per the mother’s evidence, it meant that the father was impulsive, lacked control and was a poor role model. The constant abuse, taunts and phone calls are evidence of this self control.
The report writer accepted that the phone calls from the father, in which he made abusive comments as outlined in the mother’s material and which the father admits to making, show an impulsivity and inability to control himself, even if the child had head lice or was witness to events of the mother being drunk or being abused by her partner.
I have no doubt that generally the father has been intimidating and overbearing towards the mother in their communication and their interactions. I accept that she is in fear of him and that his conduct has caused her to fear for her own safety.
I accept the evidence of the mother as to her long history of being abused both physically and verbally by the father.
I regard the father as an extremely poor role model for [X] given the father’s hostile and aggressive manner. I consider that the father’s history of family violence has a profound effect upon the father’s capacity to parent and his responsibility towards parenting.
Section 60CC 3 (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;
The Orders I intend to make will be made in the knowledge of the contested hearing and all of the evidence the mother and the father have each aired, their questions and all of the evidence has been ventilated. It will be in [X]’s best interest for this litigation to end. I intend for these Orders to be final. If either party brings any further Applications, the issues raised will need to be fresh issues and not a revisitation of the matters ventilated in this trial. The parties will have to meet the legal threshold in Rice & Asplund [1979] FLC 90-725. Neither of the proposals are more or less likely to lead to institution of further proceedings, save and except that the option of too much negotiation will likely lead to disputes and contraventions.
Section 60 CC (4) Extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent including - make decisions about major long term issues - spend time with the child - fulfilled or failed to fulfil the parent’s obligation to maintain the child
The father has never paid the mother child support for the cost of raising [X]. The father justifies this on the basis that the mother took a car with her at separation and in his view the car that the mother took was in lieu of child support. This is despite the father himself keeping two cars and other monies were divided between them. The father admits that there was no agreement to this effect. The mother says that she was entitled to have a car as they split up their assets and she brought a car in, and the father kept two other cars.
I regard the father’s explanation to justify his non payment of any financial support for [X] as being disingenuous. I reject the suggestion that their informal property settlement in which he also retained assets was intended to represent his legal responsibility to pay for a share in the cost of raising his child, presumably until [X] was 18. This suggestion shows a serious lack of insight into the cost, responsibility and financial burden assumed by the mother. The father did not recognise that he had both a moral and legal obligation to financially support his son.
The father was most critical of the mother for failing to make arrangements to leave work early enough to facilitate changeovers earlier or not taking time off on Saturday mornings suggesting that she ought to prioritise handovers over her work commitments. The father said No, I don’t see that you did anything out of your way. You did not go out of your way to enable this child to spend weekend time with his father, and you are not going out of your way to take off time on a Saturday morning on those weekends you had to work, and you do not go out of your way to take - make up those few hours on a Friday afternoon to be able to come and do it. You have specifically asked, with Spelleken FM, to be able to only have the Saturday until Sunday because of your work obligations, and we are respecting that over and over. And then when you click your fingers.
The father gave evidence of earning around $60,000.00 per annum and that as a [omitted] he generally does not work during the winter unless he has to. I regard the father’s complete failure to assist in the financial support of [X] as a significant failure in exercising his parental obligations. Five years is a long time not to assist financially.
Section 61DA – Presumption of Equal Shared Parental Responsibility
In relation to the issue of equal shared parental responsibility, what is abundantly clear from the evidence is that these two parents have had an acrimonious and conflicted relationship whilst they were together. Post separation the conflict has continued at hand overs.
I am satisfied on the balance of probabilities noting the seriousness of the allegations that the father has engaged in Family Violence against the mother and that on his own evidence, he has exerted physical and controlling violence upon the mother and caused her to fear for her safety. I consider that the presumption of equal shared parental responsibility is rebutted by the evidence of family violence.
Given the father’s unbridled bitterness towards the mother, his insulting and demeaning conduct shown towards her, the past conflict, and given my discussion under each of the relevant section s.60CC factors elsewhere in these reasons, I do not consider it to be in the best interests of [X] to make an order for equal shared parental responsibility.
Evaluating the competing proposals
Unlike Mr O, I am satisfied that the mother has developed an insight into her past behaviour in entering into abusive relationships. I accept that hearing the family consultant’s oral evidence was a devastating experience for the mother. The mother’s response to hearing [X]’s concerns was that [X] should spend time with her when he wished to do so. This showed some understanding of the distress that had been caused through her inaction with Mr M’s intoxication levels, along with the mother’s comments to Ms D at the child inclusive conference.
The mother has admitted to the court that she realizes she has not been the best parent and that [X] had seen things he ought not to have. She is prepared to do more of the counselling she started when she left her former partner Mr C and the father.
I am satisfied that the mother has learnt about her own shortcomings in relation to abusive partners and excessive drinking. The result of her past conduct was the loss of [X] living with her. I consider that the mother has shown sufficient insight into her previous drinking patterns to make adjustments as she says she has done. The mother has held down permanent employment for 3 years and raised two children. The mother has taken steps to prevent any further drink driving saying that she does not drink if she has to drive. She expressed humiliation at being caught a second time the morning after. I accept that her contrition was genuine. She showed regret and insight into her using alcohol to excess during 2009. She said that the family consultant’s evidence given in July had been devastating and she had suggested that if the child didn’t want to be with her that he should get to choose. This is borne out by comments that Federal Magistrate Spelleken made, as the father referred me to, that she was somewhat surprised at the mother’s suggestion the child was to request when he wanted to spend a weekend with the mother.
The mother said she realises now that she should have spent more time having counselling or support from the group Scope, a family violence counselling service, which she attended at separation, but which she did not continue to attend due to other pressures.
The mother is no longer in a relationship with Mr M and I believe that she well and truly knows that this relationship cannot be resumed given [X]’s experiences. It was this partner that caused [X] to have his concerns and fears. It seems, unfortunately, that [X] once enjoyed a good relationship with Mr M, however, the damage has been done and it is in [X]’s interests that this relationship, nor any relationship like it, ever be resumed. I accept that the mother believes that this is [X]’s wish and that she must ensure that this does not happen again.
It is somewhat ironic of the father to be critical of the mother’s capacity to parent by being in a violent relationship when I am satisfied that he himself has been physically violent, controlling and demeaning toward the mother. I consider it essential that the mother engage in a long course of counselling from the Domestic Violence Service or similar organisation to ensure that she gains the skills and insights into the broader topic of domestic violence.
I need to make Orders that enable [X] to achieve his full potential in life and which are in his best interests.
The father’s proposal for [X] to live with him and spend what I regard as very limited time with the mother demonstrates the priorities that he sees in [X]’s life. Mr O described the father’s proposal as entirely unworkable and insufficient to enable the child to have a meaningful relationship with his mother. I accept this. A childhood of pursuing sporting and other interests for [X] at his young age in place of spending time with his mother is not in [X]’s best interests.
The proposal also ignores the importance of the significant sibling relationship between [Y] and [X], a relationship which has been on foot all of [X]’s life, a relationship in which both children have a close bond to the other.
I am satisfied that the Orders proposed by the father will result in [X]’s close relationship with his mother being undermined by the father through his overt hostility and loathing for the mother. I consider that the father’s personality is so strong that it is likely his attitude toward the mother will inevitably undermine [X]’s relationship with his mother. Also I consider that it would be a struggle for [X] to openly adopt a position contrary to that of the father and maintain his love and close relationship with his mother in the face of the father’s unbridled bitterness towards the mother. I am also troubled that [X] will be negatively influenced by his father’s domineering style and lack of respect for his mother.
I am also troubled by the evidence of the day to day routine in the father’s care for [X]. I do not accept that he is as happy with the arrangement as the father suggests and I do not regard the level of involvement and supervision by the father directly with [X], given the father’s work commitments, as being adequate for [X]’s emotional and physical well being. I consider that the arrangements that the mother has had in place for many years represent a stable and secure routine for [X] in which he is emotionally supported.
The father has failed in his responsibility to provide financial support for [X]
In terms of parenting capacity, I consider that the mother has a maturity and experience in her parenting that the father lacks. The mother has ensured that [X] has a good and loving relationship with his father in the past, notwithstanding serious hurdles for the mother in terms of the father’s vehemence towards her. I am satisfied that if [X] lives with the mother, his relationship with his father will continue to be respected and encouraged by the mother.
I regard the father’s overt contempt for the mother including the family violence I have referred to, together with his ongoing use of illegal drugs, as serious and significant issues which have a negative impact upon his capacity to parent [X] and his responsibility towards parenting. I regard the father as being a poor role model for [X] in regard to these matters.
On weighing up all of the s.60CC factors, including the primary considerations of enabling the child to have a meaningful relationship with each parent whilst protecting him from family violence, I consider that [X]’s best interests are served by him living with his mother primarily and spending time with his father.
Having had regard to all of the section s.60CC factors and the primary considerations, I intend to make an Order that the mother have sole parental responsibility. The parties live in separate townships; their communication is entirely impoverished. The mother is in fear of the father, which I accept and there is a history of family violence with the father being the perpetrator of that violence. The father’s own style of communication does not lend itself to listening with respect to the mother’s views. I am satisfied that the presumption of equal shared parental responsibility is rebutted.
These parties do not have the capacity to communicate sufficiently to facilitate the making of joint decisions in relation to long term issues. The report writer stated that Communication between them is so dysfunctional that it would be difficult to imagine agreement about many things. The mother has made these decisions in the past, and the father has not criticised her decision making in relation to issues of education, health and other long term issues. Having considered all of the relevant s.60CC matters, I find that it is the best interest of [X] that the mother have sole parental responsibility. I am satisfied that the mother will exercise her decision making responsibilities in a child focused manner, with the best interests of [X] in mind.
The father says that if the child is to live with the mother, he “can go with” Orders for each alternate weekend. The father wishes [X] to attend qualifying swimming carnivals and also rugby and other interests that [X] may develop, including skateboarding commitments on weekends. I do not accept that it is in [X]’s best interests that he spends all of his weekends away from his mother and sister engaging in sporting pursuits. I intend to make an order that neither parent is to make any arrangement that impinges on [X]’s weekends with the other parent. Like most children it will be beneficial for [X] to be exposed to the weekend and holiday life that each parent has to offer him.
The mother’s final position is that [X] spend time with his father three out of four weekends. This would involve [X] in a reasonable amount of travel, most weekends. I consider it is important for [X] to have a social and home life in [G] separately from his swimming commitments. As [X] becomes older I would expect that he will want to have time in [G] to spend with his school friends on weekends in developing his own social life. I therefore consider that [X] should spend each alternate weekend with the father, as suggested by the father[27]. I am satisfied that this time, together with half of the holidays will provide sufficient opportunity for [X] to have a meaningful relationship with his father. The weekend contact is to be suspended during all of the holiday periods. I am also confident that if [X] requested additional weekends from time to time with his father, the mother would do her best to accommodate his request, if possible.
[27] Transcript page 205, line 40 -45.
I will make a provision for the possibility of the mother taking [X] to a swimming carnival which is part of the program to enable [X], should he wish, to participate in the age championships program, up to 3 times during the swimming season, when he is otherwise with the mother.
I intend to adopt the recommendation of Mr O and make an order that each of the parties be restrained from drinking to excess at any time that [X] is in their care. Likewise the father is restrained from using or being under the influence of illegal drugs at any time [X] is in his care.
Given that the father has shown little insight into the effect of his own drug consumption, I will also make an Order that the father is to file and serve an affidavit in the event that he is charged with any criminal offence involving drugs, such affidavit to be filed and served on the mother within 4 days of being charged.
I certify that the preceding two hundred and forty-four (244) paragraphs are a true copy of the reasons for judgment of Willis FM
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