DICKSON & FABRA
[2013] FMCAfam 43
•24 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DICKSON & FABRA | [2013] FMCAfam 43 |
| FAMILY LAW – Parenting – living arrangements for a child aged nine years – parties have been engaged in ongoing litigation for most of the child’s life – very high degree of parental conflict to which the child is being exposed – husband suffers from personality disorders due to in vitro hydrocephalus – wife raises concerns in relation to the husband’s capacity to parent – issue in relation to where changeover should occur if not occurring at the child’s school due to high level of conflict between parties – weight to be given to the child’s strong wishes – orders that child live with the wife and spend time with the husband from after school Friday to 5.00pm on Sunday in accordance with the child’s wishes. CHILD SUPPORT – The wife’s application for a departure order – application dismissed. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA. 65DAA. Child Support (Assessment) Act 1985, ss.98E, 116. 117. 118. |
| AMS v AIF (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR DICKSON |
| Respondent: | MS FABRA |
| File Number: | MLC 6955 of 2008 |
| Judgment of: | Bender FM |
| Hearing dates: | 24 & 25 September 2012 |
| Date of Last Submission: | 25 September 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Testart |
| Solicitors for the Applicant: | James Hopper & Associates |
| Counsel for the Respondent: | Mr Arnold |
| Solicitors for the Respondent: | Peter Lynch |
| Counsel for the Independent Children’s Lawyer: | Mr Ambrose |
| Solicitors for the Independent Children’s Lawyer: | Kenna Teasdale Lawyers |
ORDERS
All previous parenting orders be discharged.
The wife have sole parental responsibility for the child [X] born [in] 2003 (“[X]”).
[X] live with the wife.
[X] spend time with the husband each alternate weekend from after school Friday until 5.00pm Sunday and to 5.00pm Monday in the event that Monday is a public holiday, commencing 25 January 2012 and each alternate weekend thereafter.
When with the wife, [X] communicate with the husband via telephone on the Saturday evening he is not living with the husband and each Tuesday evening for a period of no more than 15 minutes on a mobile/phone number provided by the wife for the purpose of such calls with such call to be no later than 8.00pm.
During the time that [X] spends with the husband, [X] communicate with the wife via telephone on a Saturday evening for a period of no more than ten minutes on a mobile/phone number provided by the husband for the purpose of such calls with such call to be no later than 8.00pm.
For the purposes of order (4) herein, changeover where not at school shall occur at the McDonald’s restaurant in [B], with the parent returning [X] to deliver him to the [omitted] entrance and the receiving parent to collect him from the premises’ rear car park.
For the purposes of the first three instances of changeover at the McDonald’s restaurant in [B], [X] be accompanied by the paternal grandmother or if the paternal grandmother is unavailable, such other adult person as nominated by the husband.
When attending McDonalds [B] for the purposes of changeover, the husband and the wife are each restrained from leaving their motor vehicles.
The husband and the wife each ensure [X] attends all extra-curricular activities in which he is engaged whilst in their care and the wife is to notify the husband in writing as soon as practicable of activities that coincide with his time.
[X] spend special days, including Father’s Day, Mother’s Day and his birthday, with whichever of his parents he is with in accordance with the orders of this Court.
[X] spend time with the parent he is not otherwise with on Christmas Day from 10.00am to 3.00pm.
The husband sign and approve an Application for an Australia Passport for [X] within 28 days of a written request to do so received from the wife.
In the event that the husband fails to comply with order (13) herein, the wife is authorised and permitted to apply for and receive an Australian passport for [X] without first obtaining the written consent of the husband.
The wife be at liberty to suspend one weekend each year that [X] would spend with the husband pursuant to these orders during any of [X]’s school holidays, provided that:
(a)the wife provide the husband with 28 days’ written notice of the intended weekend in which the husband’s time with [X] will be suspended; and
(b)in the event that [X] is to travel overseas, the wife provide the husband with an itinerary for [X]’s proposed travel no less than 28 days’ prior to his departure, whether the purpose of such travel is a holiday or for school or an extra-curricular activity; and
(c)upon [X]’s return following the suspension of the husband’s time with [X], [X] spend the next three weekends with the husband and thereafter the alternate weekend arrangements pursuant to order (4) herein recommence.
Each party keep the other informed at all times of their current residential address and contact telephone number.
The wife authorise [X]’s school to provide the husband, at his expense, with copies of all relevant school reports, school photograph order forms, newsletters, correspondence and any other relevant documentation.
The husband is authorised to attend parent-teacher interviews in relation to [X], with such interviews to take place at a different time and on a different date than that of the wife and subject to [X]’s school being able to accommodate such an arrangement.
The wife is authorised to provide a copy of these orders to [X]’s school.
Each party shall advise the other of any serious illness or injury suffered by [X] as soon as practicable following the onset of the illness or occurrence of the injury and in the event [X] attends a medical practitioner, each parent shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
The wife keep the husband apprised of all [X]’s extra-curricular and social activities and authorise any relevant organisations to speak directly with the husband.
Each parent is restrained from attending [X]’s extra-curricular or school activities when [X] is not otherwise in their care.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X] and from permitting any other person so to do.
The wife do all things necessary to forthwith enable [X] to engage in confidential therapeutic counselling and IT IS REQUESTED THAT the Independent Children’s Lawyer provide the wife with the names of recommended therapeutic counsellors for [X].
For the purposes of order (24) herein, the wife shall provide [X]’s therapeutic counsellor with a copy of these orders, the Family Reports of Mr L dated 25 March 2012 and 29 August 2012 and the judgment of Federal Magistrate Bender dated 24 January 2013.
IT IS REQUESTED THAT the Independent Children’s Lawyer explain or arrange to have Mr L explain these orders to [X] and the wife is directed to do all things necessary to ensure [X] attend upon the Independent Children’s Lawyer or Mr L for the purposes of this order.
The wife’s Application for a departure order pursuant to section 118 of the Child Support (Assessment) Act 1989 filed 13 September 2012 be dismissed.
The parties must seek leave of the Court before any further application in relation to [X]’s living arrangements can be instituted and, where possible, any such application for leave be listed before Federal Magistrate Bender.
IT IS NOTED that publication of this judgment under the pseudonym Dickson & Fabra is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 6955 of 2008
| MR DICKSON |
Applicant
And
| MS FABRA |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the parenting arrangements for the parties’ son [X] born [in] 2003 (“[X]”).
Sadly, the parties, who separated less than 12 months after [X]’s birth, have been engaged in ongoing litigation for almost all of [X]’s life.
The husband’s current application seeks orders that the parties have equal shared parental responsibility for [X], that [X] live with each of the parties on a week-about basis from after school each Friday, that there be a sharing of school holidays and a sharing of special days including Christmas, birthdays, Father’s Day and Mother’s Day.
The husband is also seeking orders that he communicate with [X] when [X] is not in his care by telephone each evening between 5.00pm and 5.30pm.
In relation to changeover between the parties, the husband proposes that when not at school, changeover be at the McDonald’s restaurant in [B]; with the parent returning [X] to deliver him to the [omitted] entrance and the receiving parent to collect him from the premises’ rear car park.
In his closing address on behalf of the husband, the husband’s Counsel advised the Court that whilst the husband’s ‘primary position’ as to the orders he seeks are for a shared-care arrangement, the husband’s
‘fall back position’ is for [X] to live with the wife and spend time with the husband each alternate week from after school Thursday to before school Monday, for a graduated increase in time in the school holidays culminating in [X] spending half of all holidays with each of the parties and for a sharing of special days. Further, if the Court were to make orders that the wife have sole parental responsibility for [X], the husband be advised of all decisions made by the wife and to be authorised to speak to [X]’s teachers, medical practitioners and coaches.
The wife seeks orders that she have sole parental responsibility for [X], that [X] live with her and spend alternate weekends with the husband from after school Friday to 5.00pm Sunday.
The wife seeks orders that, save for Christmas Day (on which day the wife proposes [X] spend from 10.00am to 3.00pm with the parent he is not otherwise with), all other special days such as birthdays, Father’s Day, Mother’s Day be celebrated with the parent that [X] is spending time with pursuant to the Court orders.
The wife seeks orders that any changeovers that do not occur at [X]’s school take place at the [W] Contact Centre.
The wife is also seeking a departure order pursuant to section 118 of the Child Support (Assessment) Act 1989, such that the husband pay, in addition to the periodic support determined under Part V of the Child Support (Assessment) Act 1989, half of [X]’s school fees, school uniform costs, registration fees, costs of uniform and equipment for [X]’s extra-curricular activities and expenses relating to [X]’s health including dental, orthodontic and any operations.
The wife’s application pursuant to the Child Support (Assessment) Act 1989 is opposed by the husband.
For the purposes of the structure of this judgment, it is my intention to address the parenting matters and to then consider the wife’s child support departure application.
Parenting matters
Background
The husband was born [in] 1969 and is 43 years of age. He is employed as an [omitted]. The husband has not re-partnered.
The wife was born [in] 1969 and is 42 years of age. She is employed on a full-time basis as an [omitted]. The wife has re-partnered and married her now husband Mr F on [date omitted] 2011.
The parties married [in] 1999 and separated [in] 2004, at which time the wife obtained an intervention order against the husband.
The parties have been engaged in litigation since their separation.
A summary of their ongoing litigation is informative and is as follows:
August 2004
The wife obtains a 12 month intervention order against the husband.
February 2005
The husband pleads guilty to breach of intervention order and is released on a good behaviour bond.
7 March 2005
Final property orders made by consent.
11 April 2005
Final parenting orders made as follows:
(a) parties to have equal shared parental responsibility for [X];
(b) [X] live with the wife;
(c) [X] spend time with the husband as follows:
(i) commencing 15 March 2005, each Tuesday from 4.00pm to 6.00pm;
(ii) commencing 19 March 2005, each alternate Saturday from 10.00am to 5.00pm;
(iii) commencing 6 August 2005, each alternate Saturday and Sunday from 10.00am to 5.00pm;
(iv) commencing 4 March 2006, each alternate Saturday from 10.00am to 10.00am Sunday;
(v) commencing 29 June 2006, each alternate weekend from 6.00pm Friday to 5.00pm Sunday;
(vi) commencing 11 July 2007, each alternate week from 6.00pm Friday until 5.00pm Sunday; and
(vii) special times for special occasions such as Father’s Day, Christmas Day and birthdays.
(d) the time the husband spends with the child is to increase after the child commences primary school in January 2009.
(e) changeovers to occur at the McDonald’s Family Restaurant in [B] or as agreed between the parties.
2 August 2005
The husband files a Contravention Application.
11 August 2005
The husband consents without admission to extension of the wife’s intervention order to
19 November 2005.5 September 2005
The husband’s Contravention Application is discontinued.
27 September 2005
The husband files an Application to vary the final orders made on 11 April 2005; the Application is listed for 22 November 2006.
17 November 2006
An order for an indefinite intervention order is made in the wife’s favour by the State Magistrate Court after a contested hearing.
22 November 2006
Orders made by consent for the parties to attend PDR to discuss ongoing arrangements for [X] and the husband’s application filed 27 September 2006 is discontinued.
25 March 2008
The husband pleads guilty to a breach of the intervention order. No conviction recorded.
31 July 2008
The husband files an Application to vary the final orders of 11 April 2005.
13 August 2008
The husband files a Contravention Application.
3 September 2008
Orders made listing the matter for final hearing on 20 April 2009, striking out the husband’s Contravention Application and for a family report to be prepared.
28 November 2008
Interim orders made that the April 2005 orders be suspended, the wife have sole parental responsibility for [X], [X] spend time with the husband supervised by the paternal grandparents from 10.00am to 4.00pm each Saturday and the husband not attend changeover.
16 January 2009
The husband’s application to the State Magistrates Court to vary the wife’s intervention order is dismissed.
16 March 2009
Order for appointment of an Independent Children’s Lawyer and the continuation of orders for [X] to spend time with the husband supervised by the paternal grandparents.
15 July 2009
Interim orders made for [X] to spend time with the husband from 9.00am to 6.00pm each Saturday supervised for three hours by [A] Contact Service and six hours for the paternal grandmother.
2 March 2010
The husband’s application to the State Magistrates Court to discharge the wife’s intervention order is refused.
31 May 2010
Final orders by consent in the following terms:
(a) equal shared parental responsibility for [X], save if there is a dispute in relation to his education the wife have the right to finally determine his education;
(b) [X] live with the wife;
(c) [X] spend time with the husband as follows:
(i) from 10.00am to 7.00pm Saturday and from 10.00am to 5.00pm Sunday each alternate weekend;
(ii) by phone each Wednesday from 7.00pm to 7.30pm;
(iii) for specified times on Christmas Day, Father’s Day, [X] and the husband’s birthdays;
(d) from March 2011, [X]’s time with the husband be from 10.00am Saturday to 6.00pm Sunday;
(e) changeover be at McDonald’s [B] between the wife and the paternal grandparents;
(f) the husband’s time with [X] be subject to the paternal grandparents being in substantial attendance and all overnight time be spent at the home of the paternal grandparents.
There was a notation to the orders that in the event the husband wished to spend increased time with [X], that it not be before September 2011 and that he seek mediation at a Family Dispute Resolution Centre and that the husband discontinue his application for revocation of the wife’s intervention order the listed in the [omitted] Magistrates Court on 25 June 2010.
21 October 2010
The husband filed an Initiating Application to vary the final orders made in May 2010 and a Contravention Application.
13 December 2010
The husband’s Initiating Application and Contravention Application filed
21 October 2010 are dismissed and the husband ordered to pay the wife’s costs.23 December 2010
The husband files a Contravention Application.
24 January 2011
Orders made confirming the 31 May 2010 orders save for a fine-tuning of the changeover arrangements and for the husband’s Contravention Application filed
23 December 2010 to be otherwise dismissed.January 2011
The husband’s application to the State Magistrates Court to discharge the wife’s intervention order is dismissed.
April 2011
The husband’s application to the State Magistrates Court to discharge the wife’s intervention order is dismissed with costs awarded against the husband.
The current proceedings were commenced by the husband filing an Initiating Application seeking parenting orders on 11 October 2011.
The husband was born suffering from the effects of in vitro hydrocephalus which impacts the husband’s personality, his interpersonal relationships and his capacity for insight and
self-regulation.
The manner in which the husband’s personality impacts on his parenting capacity and his relationship with [X] was a major issue for the Court when this matter was previously before the Court. It is a major issue in these proceedings as well.
In preparation for the final hearing of the parenting matters that were finalised by way of consent orders in May 2010 a psychiatric assessment of the husband and reports from the husband’s treating clinical psychologist were filed with the Court.
In his opening to these proceedings, Counsel for the husband indicated to the Court that the psychiatric assessment of the husband and the reports of his treating psychologist filed in the 2010 proceedings provide significant information to the Court as to the husband’s functioning and relationships and that the Court should consider those reports for the purposes of these proceedings.
Counsel for the wife and the Independent Children’s Lawyer agreed that the findings contained in the 2010 reports would be of benefit to the Court in the determination of this matter. Accordingly, the findings of those reports shall be set out as part of the background of this matter.
On 14 January 2009, Dr E released his psychiatric assessment of the husband. This was contained in his affidavit sworn 8 July 2009 and filed with the Court on 9 July 2009.
Under the headings ‘Diagnosis’ and ‘Opinion’ set out on pages 10 and 11 of his report, Dr E stated as follows:
DIAGNOSIS
Mr Dickson has recovered from his Adjustment Disorder with Mixed Emotions. He does not have a Personality Disorder.
He does not suffer from psychotic condition. His rigid and obsessive personality style and his difficulties in understanding and managing relationships are more than likely explained by the effects of his hydrocephalus. He remains an unsophisticated but nonetheless well meaning man who wishes to maintain a relationship with his son. One gains the impression that [X] is all that is left of Mr Dickson’s sense of conducting a normal family life. This is further reinforced by his Italian cultural heritage and values.
OPINION
1.Mr Dickson wishes to have increased contact with his son. I do not believe that despite the issues involving his wife in the immediate post-separation period and subsequent to that, he is suffering from a psychiatric condition as such which would prevent him from doing so in an absolute sense. He nonetheless suffers from impairments in regard to his ability to maintain relationships and to understand the workings of himself and others. This is reflect in Ms S’s description of relationship between father and son whereupon Mr Dickson through his anxiety, possibly to impress as a good father, continued to intrude upon [X] who reacted negatively by moving away. It is likely as
Mr Dickson indicates, that that session is not truly reflective of his relationship with his son in other more relaxed and home-based circumstances. His account would indicate that he does understand a need to care for his son and manage him appropriately. The degree to which he does so from a child-centered perspective is not clear. It is likely that he receives considerable help from his parents and family.
2. Mr Dickson remains fixed in his view of the Wife and her contributions to the difficulties. He lacks insight into his contributions and has not moved much in that regard. Whilst he has not infringed upon the Intervention Orders in a major sense, recently he appears nonetheless to hold certain attitudes towards the Wife, reflected in her more recent complaint to the Police that he spat on her in 2007 and swore at her. Given those issues, it is clear that
Mr Dickson has not moved on to the degree that he would like to convince me of. Nonetheless, that does not mean that he does not love [X], wishes to care for him, and can manage a certain range of responsibility for his son. In the end however, it is likely that there are significant limitations in his ability to understand [X]’s needs beyond instrumental considerations. In that respect, I would strongly recommend a parenting course for Mr Dickson and occurring quite separately and not in any way involving conjoint involvement with the Wife lest it distracts him and he beings once again his wish to woo her back into the family.
3. I note that Mr Dickson has participated in psychological treatment previously. He says that has occurred once a month over a period of a year. This has had no effect on him in regard to him developing insight and in that respect, such endeavours are not going to be particularly helpful. It is therefore largely for the Court to determine the ways in which Mr Dickson interacts with his son, fully cognizant of his limitations which of themselves are not likely to be amenable to individual psychological treatment.
4. I agree with Ms S that a shared care arrangement in this matter is not feasible, both in respect to the ongoing issues which Mr Dickson has with his wife. He has limited insight in regard to that. It is further not recommended, in my opinion, on the basis of his difficulties in understanding the needs of his son. Ms S’s report would indicate that the Wife has a greater capacity in that respect. Nonetheless, as such, an arrangement allowing Mr Dickson, in the light of his undoubted love for [X], to have contact at a level lesser than a shared care arrangement but more than he is receiving at the moment is important. I believe this situation needs to be monitored and that Ms S could review the situation following upon arrangements set out by the Court in six or twelve months’ time. This will enable an assessment of [X] in his father’s domain and delineate the degree to which Mr Dickson is capable of carrying for his son, both with the co-operation of and also in the absence of his parents’ involvement.
5. I have not interviewed the Wife or [X] and my report needs to be read accordingly.
The husband’s was referred to Mr S, Specialist Clinical Psychologist, by his treating general practitioner in 2009 in relation to the stressors arising from the family law proceedings relating to [X].
Mr S prepared a report dated 25 June 2009, which was annexed to his affidavit sworn 25 June 2009 and filed with the Court on 26 June 2009.
In his report, Mr S indicates that the husband had initially seen him on 15 May 2009 and had attended for 14 one hour consultations since that date. Mr S had also observed the husband with members of his family and with [X] during home visits to the husband’s residence.
Under the heading ‘Conclusions’ contained in paragraph 12 of his report, Mr S states as follows:
12.1It is my view that Mr Dickson’s personal history and current presentation are consistent with a diagnosis of Obsessive Compulsive Personality Disorder in that he displays rigidity, stubbornness in his inflexibility in his thinking and behaviour and he is preoccupied with minor details of life’s situations and has difficulty in developing an abstract overview of those situations. He tends to lack the capacity for introspection and self-insight. He has limited insight into the emotional sensitivities of others. In addition, it is my view that Mr Dickson displays signs of Adjustment Disorder (chronic) – a response to the stressors of the ongoing Family Law proceedings resulting in a tendency to lead an egocentric preoccupation with and minor impairment of his overall judgment regarding Family Law proceedings.
12.2
However, my further view is that these Disorders either separately or collectively, do not preclude Mr Dickson being able to provide adequate parenting for his son, [X].
Mr Dickson has a very strong personal commitment to playing a significant and substantial role in [X]’s care and development, doubtless associated with his Italian cultural heritage.
12.3[X] clearly has a very warm, positive attachment with his father as evidenced by the child’s eagerness to physically cuddle Mr Dickson immediately on arrival and at other times during his visit with his father. Mr Dickson is clearly able to respond very warmly and appropriately to his son’s need for close physical contact.
12.4My several home visit observations of [X] are that he is very self-assured in interactions with others, and especially his father. He clearly enjoys the company of other members of his extended family.
12.5It is noteworthy that some behavioural features of Mr Dickson’s Obsessive Compulsive Personality Disorder may be considered to be personal assets. I have found him to be reliable, punctual, attentive to detail, conscious of safety issues, aware of his son’s physical needs and providing appropriate response.
12.6Following intensive psychotherapeutic counselling here in the past month, I have found Mr Dickson does have the capacity for insight development and in recent discussion he has displayed some ability to view matters in a less egocentric way and also, equally importantly, to act on advice regarding parental management of his son. It is apparent that it would be beneficial for him to have further psychotherapeutic counselling with regard to acquiring an understanding of the developmental needs of children of [X]’s age.
12.7Mr Dickson has stated on a number of occasions that he wants [X] to spend much more time in his care, perhaps for even half of the total time. He has failed to grasp the significance of the various parameters of this matter, especially the conflicted relationship between the parents, that would not lead to the view that an equal shared-care arrangement would be in the best interests of the child.
12.8My consultations with Mr Dickson and my home visit observations lead me to the view that Mr Dickson is capable of being a caring, warm and adequate parent and that supervision of the time [X] spends with his father is not needed.
12.9Clearly, I do not have an understanding of the totality of this matter and, as a consequence, I am unable to draw any conclusion regarding the overall best pattern of parental care that would be in [X]’s best interests except that the child should spend substantial and significant time with his father.
In the husband’s affidavit sworn 19 December 2011 and filed
23 December 2011, the husband annexed a further report from Mr S dated 21 November 2011. Whilst not properly before the Court by way of an affidavit sworn by Mr S, no issue was taken by the wife or the Independent Children’s Lawyer with the Court having reference to the contents of the updated report.
In his updated report dated 21 November 2011, Mr S states in paragraphs 3 and 4 as follows:
It remains my view that Mr Dickson’s personal history and current presentation are consistent with a diagnosis of Obsessive Compulsive Personality Disorder and that he continues to display rigidity, stubbornness and inflexibility in his thinking and behaviour and is preoccupied with minor details of life situations and has great difficulty in developing an abstract overview of those situations. He continues to lack the capacity for introspection and self-insight and has limited insight into the sensitivity of others. He no longer displays significant signs of Chronic Adjustment Disorder referred to in my earlier report. That Disorder was a response to the stressors of ongoing Family Law proceedings, which seem to be reduced, but he still displays a tendency to egocentric preoccupation with minor details leading to limited understanding of major principles of Family Law proceedings.
However, I continue to hold the view that the foregoing aspects of Mr Dickson’s personality and temperament do not preclude him from being able to provide adequate parenting for his son, [X]. Mr Dickson has a very strong personal commitment to playing a significant and substantial role in [X]’s care and development, doubtless associated with his Italian cultural heritage.
In paragraphs 9, 11 and 12 of his updated report, Mr S states as follows:
Mr Dickson has stated on a number of occasions that he wants [X] to spend much more time in his care perhaps for even half of the total time. He has failed to grasp the significance of the various parameters of this matter, especially the conflicted relationship between the parents, that would lead to the view that an equal shared-care arrangement would not be in the best interests of the child.
…
In conclusion, my view is that Mr Dickson has made some gains in regard to his parenting role with [X] and has also been made aware of a child’s perception of parental conflict as having a detrimental effect on the psychological development of the child.
I recommend that the Order requiring Mr Dickson to attend counselling be discharged.
The current application first came before me on 12 December 2011.
On that occasion orders were made for the appointment of an Independent Children’s Lawyer and for the parties to attend, at the husband’s expense, on Mr L, psychologist, for the purpose of a Family Report.
On 11 April 2012 after the parties had the benefit of receiving Mr L’s Family Report dated 25 March 2012, interim orders were made by consent which provided inter-alia for all pervious parenting orders to be discharged, for the wife to have sole parental responsibility in respect to [X]’s education and extra-curricular activities, for [X] to live with the wife and to spend time with the husband each alternate weekend from after school Friday to 6.00pm Sunday for four weekends and thereafter for each alternate weekend from after school Friday to before school Monday.
The 11 April 2012 orders further provided that until the conclusion of
June 2012, the husband ensures that either or both of the paternal grandparents are in attendance for at least one hour at the commencement and conclusion of [X]’s time with the husband. Thereafter the orders did not require the husband’s time with [X] to be supervised.
The 11 April 2012 orders further provided that when changeover does not take place at school, it takes place at McDonald’s in [B] and the husband not be present, that both parties be restrained from attending [X]’s extra-curricular activities which occur outside their scheduled care periods, both parties ensure [X] attends scheduled extra-curricular activities as well as orders relating to non-denigration, exposure to abuse, notification of injury and telephone communication.
[X]’s living arrangements have accorded with the 11 April 2012 orders since they were made.
The Evidence
The husband’s evidence
The husband relies upon his affidavits filed 10 October 2011,
19 December 2011, 6 May 2012 and 21 August 2012. The husband also gave viva voce evidence at the final hearing of this matter.
In support of his case, the husband relied upon the following affidavits filed on his behalf:
·Ms C, sworn 20 August 2012 and filed 22 August 2012; and
·Mr M, sworn 21 August 2012 and filed 22 August 2012.
Counsel for the wife and the Independent Children’s Lawyer advised the Court that they did not wish to cross-examine Ms C or Mr M and that they did not challenge the content of their affidavits. Accordingly, these witnesses were not required to give viva voce evidence at the final hearing of this matter.
As noted earlier in this judgment, the husband also relied upon the psychiatric assessment of the husband by Dr E dated 14 January 2009 and the reports of Mr S, the husband’s treating psychologist, dated 25 June 2009 and 21 November 2011.
It was agreed by all parties that Dr E and Mr S would not be called to give viva voce evidence at the final hearing. All parties agreed that the diagnoses and opinions expressed by Dr E and Mr S in relation to the husband are not disputed.
The husband
The husband seeks orders for equal shared parental responsibility, that [X] live with each of his parents on a week-about basis and that there be a sharing of school holidays and special days.
Counsel for the husband advised the Court during closing submissions that if the Court does not make orders in the terms proposed by the husband, the husband’s ‘fall back position’ is that [X] live with the wife and spend each alternate weekend with the husband from after school Thursday to before school Monday, for half of school holidays and for special days to be shared. Further, in the event that the Court orders the wife to have sole parental responsibility for [X], the husband seeks orders that he be advised of all decisions made by the wife in relation to [X]’s education, health and welfare and that he be authorised to speak to [X]’s school and medical practitioners.
It is the husband’s evidence that he and [X] have a close and loving relationship and that [X] wishes to spend more time with him than the current orders provide.
It is the husband’s evidence that when [X] was with him the weekend before the final hearing, which was the start of the third term school holidays, [X] asked to stay longer with his father to be able to play with a friend who lives near the husband.
In the updated Family Report prepared by Mr L dated 29 August 2012, Mr L reports that [X] expressed quite strong views that he does not want additional time with the husband and would prefer that his time with his father be each alternate weekend from Friday to Sunday.
It is the husband’s evidence that he does not believe that [X]’s comments to Mr L in relation to the time he wishes to spend with his father truly reflect [X]’s feelings, but are as a result of [X] feeling pressured to reflect his mother’s wishes.
It is the husband’s evidence that [X]’s request to stay longer with him was spontaneous and not as a result of his questioning or prompting [X].
It is the husband’s evidence that whilst it is unfortunate that he was born with the difficulties identified in the reports of Mr S and Dr E, he is able to properly parent [X] and there is nothing in his behaviours that would worry or cause [X] concern.
In the wife’s trial affidavit sworn 12 September 2012 and filed
13 September 2012, she deposes to her concerns as to [X]’s behaviour since the interim orders for [X] to spend unsupervised time with the husband were made on 11 April 2012.
The wife deposes to [X] telling her that he had wet his bed at the husband’s home on three occasions and that the husband had not changed the sheets.
It is the husband’s evidence that [X] has never wet his bed when staying with him.
The wife also deposes that after his weekend with the husband, [X]’s sporting gear is returned unwashed and muddy. The wife also deposes that [X] goes to school on Mondays after the weekend with the husband in a dirty and unwashed school uniform.
It is the husband’s evidence that he always washes [X]’s sporting gear and that he washes [X]’s school uniform and it is clean when [X] goes to school on Monday from his home. It is the husband’s evidence that the school would confirm [X] attends school on the Monday after being in his care in a clean uniform.
The husband was cross-examined in relation to allegations by the wife that he had harassed the management at [X]’s swim centre and the receptionist at [X]’s treating medical clinic.
The husband confirmed that he called the swim centre a few times to see how [X]’s swimming lessons were progressing but his only request of them was for a copy of the certificate when [X] progressed to the next level. He denies ever harassing anyone at the swim centre.
The husband also confirmed that he attended [X]’s medical centre to request a copy of [X]’s medical records. It is the husband’s evidence that the centre contacted the wife seeking her authorisation to release the records but that she refused. He denies he behaved aggressively towards the receptionist.
The husband was questioned about the difficulties that arose with [X]’s registration at the beginning of the 2012 season with his then football club [H] Junior Football Club (“[H]”).
The husband concedes that he did not sign the requisite consent documents when asked to do so by [H] because of his concerns as to when each of the parties would be permitted to attend to watch [X]’s games. The husband further concedes that as a result, [H] determined it would not consider any future registration of [X] with the club unless both of his parents agreed to that registration in writing and both agreed to abide by the club’s code of conduct policy.
It is the husband’s evidence that the wife’s subsequent enrolment of [X] with the [U] Junior Football Club (“[U]”) was after the April 2012 orders. It is the husband’s evidence that she did so because [U]’s training is on a Thursday night, which excludes him from being able to take [X] to training ([H] holds training on a Friday night).
The husband does not accept that the need to change [X]’s football club was in any way related to the issues that had arisen with [H] because of his refusal to sign the registration papers and because of the ongoing parental dispute.
An ongoing issue of concern to the husband is the wife’s indefinite intervention order against him. Whilst acknowledging the wife initially had cause to obtain an intervention order against him when their relationship broke down, the husband believes that there have been no incidences between them for four years. It is the husband’s belief that the wife is not scared of him but that she maintains the intervention order in order to frustrate his relationship with [X] and to cause him anxiety.
It is the husband’s evidence that on several occasions when [X] was in his care, the wife attended [X]’s sporting events. It is his evidence that when the wife attended [X]’s sporting events, she would deliberately walk near him knowing this would cause him to be in breach of the intervention order. On at least four occasions, the husband called the police when this occurred. The police attended at the games and spoke to the husband.
It is the husband’s evidence he called the police to protect himself and [X] and to ensure the wife did not bring an application against him for breach of the intervention order.
When challenged as to how the police attending his sporting events on those occasions may have impacted on [X], it is the husband’s evidence that [X] would probably not have noticed the police attendance as the police would pull him away and speak to him separately. Albeit reluctantly, the husband concedes that if [X] did see him talking to the police he would:
“probably not be comfortable”.
The April 2012 orders restrained each of the parties from attending [X]’s extra-curricular activities which occur when [X] is not spending time in their care. The husband and the wife agree this order should remain in place into the future to shield [X] from their conflict.
Subsequent to the April 2012 orders, the wife’s sister and family attended one of [X]’s basketball games when he was in his father’s care. The husband gave evidence that he believes this action by the wife’s extended family was in breach of the spirit of the April 2012 orders and was a deliberate attempt to upset him. It is the husband’s evidence that he spoke to the club officials and asked them to remove the wife’s sister and family but that they refused to intervene and requested instead that each stay on separate sides of the court.
It is the husband’s evidence that he believes the wife is trying to destroy any relationship between himself and [X]. He is of the view that she has not and will not make it easy for he and [X] to have a meaningful relationship.
In support of his belief in relation to the wife undermining his relationship with [X], the husband cites the wife’s interference with phone calls between himself and [X], her refusal to allow [X] to call him if he wants to, her refusal to allow him to attend the Father’s Day breakfast at [X]’s school in 2012 as well as [X]’s school athletics carnival as examples of the wife’s actions in this regard.
In relation to parental responsibility, the husband was asked by the Counsel for the Independent Children’s Lawyer that given the longstanding conflict between he and the wife and his belief as to her attitude to him having a relationship with [X], how he and the wife would ever be able to make joint decisions in relation to [X].
It is the husband’s evidence that he has always been happy to sit down with the wife and discuss anything to do with [X]. The husband concedes that this has not worked to date but this was not because he has not tried. When again challenged as to how joint decisions could be made, the husband replied:
“I hope common sense will prevail”.
It is the husband’s evidence that when [X] is with him, their time together is happy, without incidence and that [X] sleeps well in his own bed.
The husband was asked if he foresees any difficulties in managing [X] as he gets older and moves into his teenage years. It is the husband’s evidence that he foresees no difficulties into the future given the closeness of their current relationship despite the limited time they have had together and because the quality of that relationship can only improve “by a multiple of 1,000” if they are able to spend more time together.
The wife’s evidence
The wife relied upon her affidavits filed 7 December 2011,
5 April 2012 and 13 September 2012. The wife also referred to the “numerous affidavits filed in these proceedings” and requested leave to refer to them at the final hearing. During the course of the final hearing, the wife made particular reference to her affidavit filed on
7 July 2009. The wife also gave viva voce evidence at the final hearing of the matter.
In support of her application, the wife relied on the affidavits of her husband, Mr F, filed 19 September 2011 and 5 April 2012. Mr F also gave viva voce evidence at the final hearing.
The wife
It is the wife’s proposal that she have sole parental responsibility for [X], that [X] live with her and spend alternate weekends with the husband from after school Friday to 5.00pm Sunday and on Christmas Day (if not otherwise with the husband) from 10.00am to 3.00pm.
The wife further proposes that if changeover for [X]’s time with the husband is not at school, changeover take place at [W] Contact Centre.
The wife also seeks orders that [X] speak to the parent he is not with each Saturday evening for ten minutes only, that [X]’s time with the father be suspended on one occasion each year to enable the wife to have a holiday with [X] and that the husband sign a passport application for [X], and if he fails to do so, a passport issue without the written consent of the husband.
It is the wife’s evidence that the husband’s personality disorder, his resultant rigid, single-minded and obsessive behaviours impact on the husband’s capacity to parent [X].
The wife raises concerns in relation to the husband not properly attending to [X]’s hygiene, providing inadequate and identical school lunches which [X] does not eat, failing to wash [X]’s sporting and school uniforms, not taking [X] to birthday parties or other social events when he is in his care, treating [X] as if he were an adult, not listening to [X]’s wishes but rather imposing his views/likes/wants on [X], of the husband always yelling at [X] and of [X] being exposed to the husband’s verbal abuse of the paternal grandmother.
It is the wife’s evidence that [X] often expresses reluctance to spend time with the husband and that he has told her that he misses her when he is with the husband.
It is the wife’s evidence that since the April 2012 orders were made, [X] has wet his bed in her home on three occasions. It is her evidence that [X] also told her he wet his bed in the husband’s home on three occasions and the husband did not change the sheets. The wife indicates that [X] has not wet his bed since he was a very young child.
It is the wife’s evidence that the husband has been involved in arguments, conflict and confrontations with [X]’s school, his swimming centre and those managing [X]’s sporting teams. It is her evidence that this causes [X] a great deal of embarrassment and upset. It is the wife’s evidence that the refusal of [H] to register [X] to play with them in 2012 was as a direct result of the husband’s refusal to sign the registration form and a prime example of the husband’s lack of insight into the impact of his behaviour on [X].
It is the wife’s evidence that she attended [X]’s sporting events whilst [X] was in the care of the father as she wished to support [X]’s sporting pursuits. She denies that she ever approached the husband or that her attendance was motivated by a desire to provoke the husband or cause him to breach the intervention order, but rather the desire of any mother to watch her son’s sporting endeavours.
It is the wife’s evidence that she accepts that the husband is unlikely to change his behaviours. However she questioned whether the husband might benefit from a parenting course or some guidance in day to day parenting as he “takes well to following instructions and orders”. It is the wife’s evidence that the husband’s attendance at such courses may assist in helping him offer [X] more variety with food and activities when in his care.
It is the mother’s evidence that whilst she has never told [X] there is anything wrong with the husband, [X] has raised questions about his father’s unusual behaviours.
When it was put to the wife that [X] is aware of her negative attitude in relation to the husband, his personality and behaviours and that this has impacted on [X]’s views of the husband, it is the wife’s evidence that:
“[X] would look at how the father behaves and others behave and he can work it out for himself if his father’s behaviour is acceptable”.
The wife was cross-examined as to what she thought the husband offered [X]. Whilst acknowledging that the husband loves [X] and that he “tries to offer some form of affection and parenting”, she reiterated her concerns as to the husband’s parenting and the things he thinks are acceptable to a child. She described him as having “good intentions” but lacking in the requisite parenting skills and capacity to learn such skills.
It is the wife’s evidence that post separation the husband contacted her 690 times and as a result she obtained an intervention order.
The husband breached the intervention order on a number of occasions, including an incident where he spat at her at changeover. Accordingly, in 2006 the State Magistrates Court granted her an indefinite intervention order for her protection.
It is the wife’s evidence that since orders have been in place which have restrained the husband from attending changeovers, there have been no incidents at changeover. It is the wife’s evidence that she remains fearful for her safety and for [X] if changeovers involve any direct contact between herself and the husband.
As the paternal grandparents are struggling with the demands changeovers place on them because of their age and health, it is the wife’s evidence that she believes a contact centre is the best option when changeover is unable to take place at [X]’s school.
The wife acknowledges that she and the husband have a highly conflicted relationship and are unable to communicate with each other or agree with each other in relation to any decision relating to [X]. She does not believe this will ever change. For this reason, the wife believes that the only realistic option that would be in [X]’s best interests is that she have sole parental responsibility for [X].
It is the wife’s evidence that she agrees to orders that the husband be provided with [X]’s school reports, attend parent-teacher interviews (to be conducted separately to those attended by her) and that he be advised of any major injury or medical emergency suffered by [X] which requires hospitalisation.
The wife expresses the view that if [X] only went to the doctor for sniffles or other minor ailments, it would be unnecessary to tell the husband; especially given the aggressive manner in which the husband has interacted with [X]’s treating doctors in the past.
Mr F
Mr F is the wife’s now husband, they having been in a relationship sine 2005 and marrying [in] 2011.
It is Mr F’s evidence that he has observed a highly conflicted relationship between his wife and the husband in these proceedings and that he was:
“there to support his wife”.
Mr F describes a positive relationship between himself and [X] and confirmed that [X] asked him to attend the Father’s Day breakfast with him at his school in 2012. He describes [X] as doing well at school, being very good at sport and having very good hand-eye coordination.
Mr F indicates that [X] sometimes mentions his time with the husband but that they do not discuss it often. He indicates that there are times when [X] does not want to go to spend time with his father but that the wife encourages him to go to his father when this occurs.
Mr L, Family Report Writer
Mr L is a psychologist. Mr L prepared two Family Reports on behalf of the parties dated 25 March 2012 and 29 August 2012, which are before the Court pursuant to an affidavit sworn 4 September 2012 and filed 6 September 2012.
Mr L also gave viva voce evidence at the final hearing of the matter.
In his Report dated 25 March 2012, Mr L in paragraph 4.1 describes the husband as follows:
Mr Dickson is a frank and direct man who quite obviously wants to be actively involved in his son, [X]’s care, welfare and development. He believes he is being deliberately excluded from playing this role by Ms Fabra’s controlling behaviour:
‘It’s her way or no way … she’s the problem … she needs counselling’.
In paragraph 4.3 of his Report dated 25 March 2012 Mr L reports that the husband told him that he is pursuing a shared care arrangement because that is what [X] wants. Mr L notes that his own enquiries indicated that this is not what [X] wants, and then stated:
… I think I observed a troubling tendency in Mr Dickson after such a long history to this matter to entangle and not to be able to distinguish his and his son’s wishes and feelings. He did acknowledge in discussion, however, that it was possible that [X] was balancing and not able to tell his parents other than what he thought they wanted to hear.
In paragraph 4.5 of his March 2012 Report, Mr L notes that he found the husband to be somewhat fixated and rigid, with a tendency to return to very specific instances and also inclined to be very
self-referent in assessing the impact of situations and events.
Mr L states as follows:
… However, throughout his mood was stable and consonant, his thought and communication focussed, coherent and reasonable, and neither his demonstrated affect or cognition gives me any grounds for supposing that he suffers from any mental disorder.
When discussing the wife in his March 2012 Report at paragraph 5.2, Mr L states as follows:
Ms Fabra is a friendly and candid woman, able to focus on [X]’s feelings and wishes: she sees herself as defending him from
‘his father’s behaviours … that’s what’s put him in this predicament … where can I get help? … he said to me: “Mum, I just want a normal life” … we’re just doing what [X] wants’.
When discussing [X] in his March 2012 Report, Mr L describes [X] as a friendly youngster, who took a while to engage with him. Mr L notes that this was in part a result of [X]’s long involvement in discussions with people just like himself, who had not delivered the result he needed, namely stable and untroubled living arrangements where he could develop his relationship with both his parents.
In paragraph 6.2 of his March 2012 Report, Mr L notes that [X] is very clear that he wants to live with his mother. He notes that [X] is aware that his father wants him to live with him and that his father has at times required [X] to write letters saying that this is his wish. Mr L states however that [X] wants to live with his mother.
In paragraph 6.3 of his March 2012 Report, Mr L describes [X] as having already begun a process of alignment with his mother in the face of the intractable conflict between his parents. Mr L notes that [X] knows a fair deal about the conflicted dealings between his parents and made reference to his mother having sent letters to his father to which his father had not agreed.
Mr L also notes that [X] routinely refers to “we” being himself and his mother when talking about the disputes that arise in relation to his living arrangements.
In paragraph 6.5 of his March 2012 Report, Mr L notes that at his third meeting with [X] (noting that Mr L not only saw [X] in his rooms but also visited [X] at both the wife’s and husband’s homes), [X] expanded on his reasons for wanting to only stay with his father for one or two days and not wanting to stay overnight. Mr L notes that [X]’s concerns were as follows:
“He tries to tell me stuff to think and to say … he doesn’t listen to what I want”.
“He changes in the middle of the weekend … he says things about Mum I don’t like … and I don’t like it when he yells … [in answer to my prompts] … yeah, only sometimes … but too much … at me but more at Nonna”.
“I don’t like having to sleep with him … he doesn’t exactly make me … it’s like he wants me to”.
“I want to play football and basketball and cricket … and I do swimming … I wanna play AFL not soccer … Dad knows that … the way it [visiting his Dad] is now, it messes up sport”.
In paragraph 6.6 of his March 2012 Report, Mr L made the following observations:
My observations of [X] at my rooms and at both parents’ homes were unremarkable; he was physically affectionate and open with both parents, his paternal grandmother and step-father. Apart from the early diffidence about talking to me I have noted, I saw no particular signs of apprehension, anxiety, distress,
actin[g]-out, withdrawal or disruptive behaviour with any of the adults or as he moved between them. They interacted with him in matter-of-fact ways and responded to him and his behaviour warmly with simple verbal cues.
In paragraph 7 of his March 2012 Report, Mr L sets out his conclusions and recommendations. Whilst lengthy, I intend to include them in their entirety in this judgment as they succinctly set out the underlying issues and difficulties in this matter.
7. Conclusions and Recommendations
7.1Despite frequent litigation and extensive professional involvement, support and assessment, Mr Dickson and
Ms Fabra have not been able to settle stable arrangements for their son, [X]’s post-separation care in almost 8 years. The associated conflict between them has already impacted adversely on [X] and is likely to do so further if decisive action is not taken now to end their conflict, and in my view, this should be the determinative consideration in parenting arrangements now.
7.2My own interviews and observations support the conclusions of my various colleagues who have reported to the Court through the history of this matter (and that history itself also demonstrates) that Mr Dickson and Ms Fabra are unwilling or unable to cooperate or to collaborate flexibly in sharing parental responsibility for [X].
7.3Each parents attributes the major blame for this to the other:
7.3.1Mr Dickson believes that Ms Fabra actively seeks to exclude him from the rightful role he should and would like to play as [X]’s parent. However, in my view, he confuses his own wishes and needs with [X]’s and lacks insight into how counter-productive his own behaviour has been in achieving stable arrangements for his son;
7.3.2Ms Fabra claims that current problems arise from Mr Dickson’s rather rigid and obsessive personality and consequent behaviour. She sees it as her role to protect [X] from them. Unhelpfully in my opinion, she conflates her own adverse experience of them in her relationship with Mr Dickson in that pursuit.
7.3.3Like my colleagues, I have noted these personality traits in Mr Dickson but I have also concluded with them that they do not constitute a level of psychopathology such as would preclude him playing an active role in his son’s care, welfare and development. They do, however, impact detrimentally on his parenting of [X] and I address this issue in more detail at S7.7 below.
7.4It is my view that, consistent with his clearly expressed and relatively mature wishes, [X] should live with his mother,
Ms Fabra. He also wants to spend time with his father,
Mr Dickson and I think he should – from after school Friday until before school Monday fortnightly in a parallel parenting arrangement.
7.5Such an arrangement also has the following advantages:
7.5.1[X] will go no more than 2 days without seeing his mother, and will spend some time with his father on 4 days each fortnight, and his mother on 12. Both parents will spend substantial and significant time with [X];
7.5.2It minimises the number of changeovers to 2, and involves no direct parent to parent changeover where exposure to conflict and disruption and anxiety most often occur. Where this cannot be the case, changeovers that do not involve both parents and/or that occur in a safe neutral place should be retained; and
7.5.3It is relatively easily explained to [X]: “You live with Mum and you have one weekend for Dad and one weekend for Mum”.
7.6I do not consider that the time [X] spends with his father needs to be supervised. At any rate, such an arrangement has not addressed the on-going problems that have occurred. [X] may well be more comfortable for the first 6 visits of the regime I recommend if he sees his grandmother for some time at the beginning and end of visits to his father, and I would suggest that he spends about an hour with his father and her on a Friday afternoon or evening and on a Sunday afternoon or evening.
7.7 I am aware that this arrangement does not correspond with what [X] wants. Mr Dickson’s past behaviour makes [X] apprehensive about staying with his father for this length of time, but I do not believe that merely adjusting the amount of time he spends with his father addresses the substantive issues involved.
7.8These should be addressed directly as follows:
7.8.1[X] finds his father’s pressuring him to spend more time with him and speaking badly of his mother and her views about [X]’s living arrangements distressing. It was also clear to me that [X] knew from his mother about aspects of the Court proceedings. In my view, Mr Dickson and
Ms Fabra should be restrained by injunction from denigrating the other parent, discussing further the arrangements for his care or other family law matters with him or within his hearing and from allowing others to do so while [X] is in their care;
7.8.2[X] finds his father’s yelling at him and at his paternal grandmother troubling. In my view,
Mr Dickson should be restrained by injunction from exposing [X] to verbal conflict or abuse while he is with him;
7.8.3[X] wants to play Australian Rules football, basketball and cricket in 2012. In my view, the parenting arrangements should include undertakings that both parents will take him to components of these activities that fall in his time with them. They should be restrained by injunction from attending such activities that fall in the other parent’s time spent with [X]. In my view, the arrangements for shared parental responsibility should be varied to provide that Ms Fabra will have sole responsibility for making decisions about future sporting activities as they have been for educational matters;
7.8.4[X] does not enjoy having to share a bed with his father. I suggest that Mr Dickson should undertake to provide separate, private sleeping arrangements for [X] and to ensure that they are used unless [X] specially request otherwise;
7.8.5[X] should have access to confidential therapeutic counselling where
·these provisions can be explained to him,
·he can receive some assistance in managing his relationships with his parents and his exposure to conflict between them,
·some assertiveness training is undertaken, and
·he can discuss any other matters that are of concern.
7.8.6Mr Dickson should continue to get any professional parenting support he needs to address these problems.
7.9With the exception of Christmas, I do not recommend making separate provision for special family and cultural events at present: [X] is old enough to celebrate birthdays, Mothers’ Day and Fathers’ Day and similar occasions on a ‘best available opportunity’ basis.
7.10If Mr Dickson and Ms Fabra show the good will required to allow the arrangements I have recommended to succeed, I think [X] should be able to spend a week’s holiday with his father in the long school break in 2012 – 13 and half-holiday arrangements could be made thereafter.
7.11In my view, [X] should enjoy liberal, voluntary telephone and Internet webcam chat communication with each parent while in the other’s care. I think each parent should undertake to encourage and facilitate him to initiate this at least once weekly and once each weekend.
Subsequent to the release of Mr L’s March 2012 Report, interim orders were made by consent in April 2012 which put in place arrangements for [X] to live with his mother and spend alternate weekends with his father from after school Friday to before school Monday. Orders were also made that restrained either party from attending [X]’s sporting events when not in their care.
Mr L again saw the parties and [X] on 4 August 2012 and prepared an updated Report dated 29 August 2012.
In paragraph 4 of his updated Report, Mr L indicates that he is not going to revisit the claims and counter-claims that the parties each make against the other in relation to their respective parenting.
In paragraphs 4.3 to 4.5 of his updated Report, Mr L makes the following observations in relation to the parties:
4.3But it is also fairly clear to me that for both Mr Dickson and Ms Fabra, these claims now form part of a good parent / bad parent understanding of the circumstances that distracts them from [X]’s best interests and provides little basis for the resolution of their differences. Despite saying that they want to focus on their son’s best interests, in my view each of them has now had that focus blurred or shifted to the outcome of their disputes.
4.4Similarly, both Mr Dickson and Ms Fabra say that they want the other parent to have a significant role in their children’s care, welfare and development but that the other prevents collaboration. In this, both display a significant lack of insight into the history of their conflict: they externalise responsibility for their inability to resolve their differences by seeking to blame the other without examining the role each has played in this and without great reference to its impact on [X].
4.5In my view, Mr Dickson and Ms Fabra’s unwillingness or inability to end their conflict is at least dysfunctional and perhaps, in the case of one or other or both of them, psychopathological. I think both would be well advised to get professional assistance that very directly targets helping them to understand their contributions to the conflict and giving them the skills they need to resolve it – not that I think that this is likely to be of much help unless both of them want to end their conflict. I saw all too few signs of this at interview.
In paragraph 5 of his updated Report, Mr L sets out his interactions with [X] in relation to [X]’s views about how time with his father was progressing and what he wishes to see in the future. These are set out in paragraphs 5.1 to 5.5 of his updated Report as follows:
5.1[X] remembered me from our previous meetings and engaged with me directly without any apparent difficulty. He told me that it was
‘OK at Dad’s … just sometimes it feels a bit weird’.
I asked him to elaborate and he said simply
‘cos normally we don’t do things the way Dad does’.
This comment reflected a certain amount of alignment in the face of his parents’ on-going disputation: I have no doubt this will continue, to [X]’s detriment, if it does not end.
5.2This theme of ‘normalcy’ returned later when we discussed whether I should recommend ‘leaving things like they are’. [X] said:
‘No … it’s too long for me … and it’s not like normal there …and I can’t do things like I was supposed to go to a party and we went to the footy instead’.
5.3I mentioned that his mother had said that he had had some problems with bed wetting and asked directly why he thought this was happening. He was surprisingly unabashed about it and said:
‘It’s just when I get worried … [about what?] … about staying too long away from my Mum … that it’ll be too long till I see her’.
5.4I explored what he might think was a reasonable time and [X] became a little confused but finally conceded that
‘It might be alright just Friday and Saturday … but I really don’t want to stay for Sunday too … [why?] … it’s just better for me going to school from home’.
I use the word ‘conceded’ advisedly: [X] was not particularly enthusiastic about the prospect of visits to his father at all.
5.5This reluctance was reflected in quite strong views that
‘I don’t want to go through the week … it just messes things up … and I don’t want holidays … they’re too long’.
Mr L made the following observations in relation to the views and wishes that [X] had expressed to him in their meeting on 4 August 2012 as follows:
5.7I have no doubt that the views and wishes he expressed were voluntary and relatively mature for his age. They are expressed in concrete operational term as is to be expected, but I do not believe that this precludes giving them significant weight as I have in my recommendations.
In paragraph 6 of his updated Report, Mr L advises that the following are his conclusions and recommendations in relation to the future living arrangements of [X] as follows:
6. Conclusions and Recommendations:
6.1[X] has now had the opportunity to spend regular periods of time with his father, Mr Dickson, and he and Ms Fabra have different views of how this has progressed:
6.1.1Mr Dickson believes it has gone relatively well and now seeks to increase the time [X] spends with him to include visits in the intervening weeks and holiday time. He does not want to be obliged to continue having his mother as part of the contact arrangements.
6.1.2 Ms Fabra reports continuing practical concerns about Mr Dickson’s care for [X] and some levels of distress in [X] about going to stay with his father. She also notes continuing difficulties in making collaborative arrangements for [X] – I can only repeat that I think that attempts to do this should end.
6.2[X] himself has quite firm and reasonable views for a boy of his age about arrangements that would be best for him into the future:
6.2.3he would prefer not to spend time overnight with his father, Mr Dickson; but
6.2.2feels that he would be able to cope spending each alternate weekend with him; if
6.2.3this time were to extend only from after school Friday until Sunday evening.
6.2.4He does not want to spend time with his father in the intervening period; and
6.2.5is not ready as yet to spend holiday time with
Mr Dickson.
6.3I think it would be unlikely to serve [X]’s best interests and might even do some harm to the relationship between him and his father to provide otherwise. Therefore, it is my recommendation that this arrangement be adopted in any Parenting Plan or Orders.
6.4Because it appears that arrangements for [X] to have liberal voluntary communication with each parent while in the other’s care have not been successful, I suggest that [X] call his father each Wednesday evening, and the parent he is not spending time with each Saturday evening or Sunday morning.
6.5I see no great need to continue the requirement for [X]’s paternal grandmother to spend some time with him at the beginning and end of visits, although the change from Monday morning to Sunday evening changeovers would still probably be best effected using her good offices.
6.6What [X] needs most of all now, in my opinion, is for the constant bickering between his parents that has characterised attempts to make arrangements for his care to stop. I think the arrangement recommended will give him security and stability and is adequate to allow his relationships with both parents to flourish. I do think there needs to be some brake on constant attempt to re-engineer it.
Counsel for the Independent Children’s Lawyer questioned Mr L in relation to the observation in his reports that [X] is beginning to be aligned with his mother.
It is Mr L’s evidence that children routinely go through three or four stages on the way to totally resisting involvement with a parent. It is Mr L’s evidence that this resistance normally begins with a pattern of avoidance where the children attempt to avoid the dispute between their parents. When they cannot do that, they commence a pattern of balancing what they think is fair to both parents. If that does not alleviate the conflict for them, then children often slip into a pattern of alignment or ‘taking sides’ with one or other parent, not necessarily because they prefer that parent per se or that parent; is better or worse than the other, but as a means to avoid the parental conflict and the emotional weight that the conflict has on them.
It is Mr L’s evidence that what worries him is that [X] could end up exclusively aligned to one parent if his exposure to their conflict is not ameliorated. It is his evidence that [X] is a young boy who in all his conscious life has never known his parents not to be in conflict or dispute. It is Mr L’s evidence that:
“unless he gets some relief from that conflict soon, I think he is likely to adopt one of those types of stances and that becomes almost intractable in the end”.
It is Mr L’s evidence that he believes [X] is becoming aligned with the wife. He makes particular reference to [X]’s use of language, whereby he routinely describes his mother and himself as ‘we’ and ‘us’. It is
Mr L’s evidence that this illustrates that [X] identifies his family unit as he and his mother and that he is distancing that unit from his father. Mr L notes that [X] does not use ‘we’ and ‘us’ when talking about his father and his extended paternal family.
Counsel for the Independent Children’s Lawyer questioned Mr L in relation to [X] indicating to him that he did not wish to spend overnight time with his father. In response, it is Mr L’s evidence as follows:
“Mr Dickson has an unusual personality style, to say the least, and [X] finds that difficult sometimes. He would have found it difficult if he parents stayed together, I suspect. … So it’s a difficult style for [X] and now he’s starting to say,
“That style is so difficult, I can’t manage it and so I won’t go overnight.””
Mr L was questioned in relation to the recommendation in his updated Report that [X] spend alternate weekends with his father from after school Friday to Sunday evening, especially given the practical difficulties the parties experience when having to effect changeover other than at school.
It is Mr L’s evidence that in his recommendations he had been trying to balance those two factors. He notes that his original recommendation had been that [X] spend time with the husband from after school Friday to before school Monday and this had, in part, been influenced by changeovers being at [X]’s school and thus a lessening of [X]’s exposure to parental conflict.
It is Mr L’s evidence that [X] has spoken to him about liking to go to school from his home base. Mr L stated as follows:
“… in a sense, for me, it was a trade off between what I had thought originally was a good recommendation because it avoids all parent to parent conflict or parent to parent transfer and opportunities for conflict against [X]’s wishes”.
It is Mr L’s evidence that at [X]’s age, he should be able to manage two, three or four nights away from his primary carer. It was his evidence that the avoidance of the practical difficulties of the Sunday night changeover as well as ensuring that the potential for conflict between the parties that a school to school changeover would avoid, warranted serious consideration.
However, it is Mr L’s evidence that ultimately the overriding factor that had prompted his recommendation that [X] spend time with his father from after school Friday to Sunday evening was that this arrangement reflected [X]’s wishes and views and accorded with his, albeit somewhat reluctant, agreement to such an arrangement being put in place.
It is Mr L’s evidence that in determining the best living arrangements for [X], the end of conflict should be the overwhelming determinant. It is for this reason that he made recommendations that, other than for Christmas, all special occasions be celebrated on:
“the best available opportunity basis for both parents”.
It is Mr L’s evidence that [X] desperately needs the conflict between his parents to cease. It is his evidence that an external determination is desperately needed by [X] that clearly set out:
“[t]his is the amount of time. No matter what your parents want, this is the amount of time and this is going to happen”.
Counsel for the Independent Children’s Lawyer indicated to Mr L that he would be asking the Court to make orders restraining the parties from issuing further proceedings in relation to [X] without the leave of the Court. It is Mr L’s evidence that this would be:
“better than ongoing conflict about it”.
Finally, it is Mr L’s evidence that [X] would benefit from confidential therapeutic assistance. It is his evidence that he believes that [X] would benefit from having a private space where he could talk about his apprehensions and concerns, where he could talk about his strategies for dealing with both his parents and things that might potentially accidentally draw him into their conflict. It is also Mr L’s evidence that [X] would benefit from assertiveness training so that he can manage his interactions with his father in a way that will enable him to put to the husband his wishes, desires and feelings.
The law
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes
section 60B(3) which deals with Aboriginals and
Torres Strait Islanders):1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Presumption of equal shared responsibility
In this matter the husband is seeking orders that he and the wife have equal shared parental responsibility for [X]. The wife seeks orders that she have sole parental responsibility for [X].
Section 61DA of the Act makes reference to there being a presumption that it is in the best interests of a child that the parents have equal shared parental responsibility. The presumption is rebutted if there has been family violence or it is not in the best interests of the children. Section 61DA of the Act provides as follows:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
As has been previously set out in this judgment, the wife has an indefinite family violence order against the husband arising from his intensive harassment of her particularly in the period immediately post separation and his subsequent breaches of the initial intervention order.
The parties in this matter have been in conflict since their separation over eight years ago. They are unable to agree on anything in relation to [X]. This is perhaps best illustrated by him nearly missing his football season in 2012 because of their conflict and inability to place [X]’s needs ahead of their intractable dispute.
Each party holds the other responsible for this ongoing conflict;
the wife blaming the husband’s disorder as the cause of the difficulties and the husband believing the wife is deliberately undermining and obstructing his relationship with [X].
The reality is however that both parties are responsible for this ongoing conflict; as Mr L notes in his updated Report at paragraph 4.4:
… both display a real lack of insight into the history of their conflict; they externalise responsibility for their inability to resolve their differences by seeking to blame the other without examining the role each has played in this and without great reference to its impact on [X].
Given the entrenched position of both the parties, their inability to accept any responsibility for the ongoing conflict between themselves and the very long history of nearly nine years of this behaviour, it is very apparent that they will never be able to cooperatively work together to make decisions for [X] that are about his best interests.
It is the husband’s evidence that he does not believe the wife genuinely harbours any concerns as to her safety. In support of this he argues that if this was the case she would not have attended [X]’s sporting matches when [X] was in the husband’s care, knowing that the husband would be present at those matches at that time.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The impact on [X]’s emotional wellbeing as a result of the parties’ inability to shield him from their longstanding and deeply entrenched conflict has already been canvassed at length in this judgment.
The husband’s personality, which results in him being somewhat obsessive, rigid and limits his ability for introspection and self-insight, has been set out in detail in this judgment. Clearly these issues impact on the husband’s parenting and the manner in which he interacts with [X].
It is the opinion of Mr L and of Mr S that these personality traits do not preclude the husband from being able to parent [X] or from being able to provide for [X]’s emotional or intellectual needs.
However, the husband must continue to be open to all external assistance in his parenting of [X] and be amenable to any feedback he receives from [X] or from [X]’s school. The husband should also be prepared to undertake any parenting courses into the future, particularly as [X] approaches adolescence.
It will also be very important for [X] that he obtain individual and confidential therapeutic counselling to assist him in better managing the conflict between his parents and to develop the strengths, strategies and independence to ensure that he is able to stand up to and negotiate his relationship with his father as he gets older.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
This section is not relevant.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This section is not relevant.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I am satisfied that both parents are committed, caring and loving parents who are devoted to their son and to his welfare.
The conflict between the parties, the husband’s rigid and intractable personality that is the manifestation of his personality disorder, the parties’ lack of insight into their own contributions to their conflict and their inability to elevate [X]’s needs at times above that conflict has meant that their responsibilities as [X]’s parents have sometimes been subjugated to that conflict.
Sadly for [X], there is no likelihood of any diminution in the level of distrust, dislike and antipathy between his parents and it will therefore be necessary for this Court to try and make orders that will limit their interactions so that they can focus on the parenting of [X] into the future.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
As noted, the wife has an indefinite intervention order against the husband. The State Magistrates Court made orders in those terms after a defended hearing. The husband has now tried twice to unsuccessfully have the intervention order varied.
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
Both parties and the Independent Children’s Lawyer are in agreement that the orders of this Court arising from this final hearing should be binding on the parties into the future and that neither should be able to make any further application to vary the living arrangements in relation to [X] without the leave of the Court.
Mr L was very clear in his evidence that [X] needs a final decision to be made by an independent person and for orders to be made that, as far as possible, end the conflict and litigation between the parties in relation to [X]’s living arrangements.
Given the parties’ long history of litigation in relation to [X]’s living arrangements and the impact of this on [X], the Court is in full agreement that the orders proposed by the parties and supported by the Independent Children’s Lawyer that the parties seek the leave of the Court before further proceedings can be instituted must be seen to be in [X]’s best interests.
Having said that, it was with some concern I note that the husband flagged the possibility of once again trying to revisit the wife’s intervention order. I can only express the hope that the husband does not pursue that course of action but that he accepts the ruling of the State Magistrates that that order should stay in place indefinitely.
I also note the wife’s evidence that there have been a number of applications to the Child Support Agency to review the level of child support payable by the husband for [X]. At the time of the final hearing, it is my understanding that there is a further application before the Child Support Agency for a review of the current assessment of child support.
Sadly, whilst it is very clear that [X] would benefit from the cessation of the litigation between the parties, their history suggests a likelihood of further proceedings, even if not in this Court.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
The Independent Children’s Lawyer submission is that [X] should live in the primary care of the wife.
It is the further submission of the Independent Children’s Lawyer that this is a matter of which the presumption of equal shared parental responsibility has been rebutted.
It is argued on behalf of the Independent Children’s Lawyer that because of the existence of the indefinite intervention order and, more relevantly, because of the very clear evidence of the inability of the parties to communicate in any way whatsoever in relation to [X], the Court should make an order for the wife to have sole parental responsibility for [X].
Counsel for the Independent Children’s Lawyer in his closing submission indicates that the Independent Children’s Lawyer struggled in forming a view as to what would be the best arrangements for [X] to spend time with the husband and, in particular, whether there should be a continuation of the existing orders by which [X] spends alternate weekends with the husband from after school Friday to before school Monday or whether that time should be from after school Friday to 5.00pm Sunday.
It is submitted on behalf of the Independent Children’s Lawyer that having had the benefit of the evidence, it is the Independent Children’s Lawyer’s view that [X] should spend time with his father in accordance with his clearly expressed wishes being each alternate weekend from after school Friday to 5.00pm Sunday and that there be no provision for additional time during holidays.
It is the Independent Children’s Lawyer’s position that [X] has expressed a clear view that he wishes to have a home base, being his mother’s home, and of wanting to go from school from that home base.
The Independent Children’s Lawyer indicates that if the Court were to make orders in these terms, these would offer [X] some support in putting in place arrangements he would feel most comfortable with and would enable him to embrace a regular regime of spending time with his father and therefore ensure that they would have a meaningful relationship into the future.
The Independent Children’s Lawyer strongly urges that the Court direct the mother to obtain a referral for [X] to a child psychologist to enable him to obtain assistance and support to deal with the issues he continues to face resulting from his parents’ separation, their conflicted relationship and to include assertiveness training to help him deal with his father’s personality.
The Independent Children’s Lawyer also proposed the Court make orders that the wife have personal counselling to assist her to deal with the issues that arise from [X] moving between her home and that of the husband’s in circumstances where she harbours such strong concerns and antipathy about the level of parenting provided by the husband.
Finally, the Independent Children’s Lawyer strongly seeks that the orders the Court makes, as far as is possible, end the litigation between the parties. It is argued by the Independent Children’s Lawyer that [X] has only known conflict all his life and that it is vitally important that [X] be provided with the psychological space to enable him to grow and develop as well as he can.
Conclusion
This matter relates to the living arrangements for the parties’ nine and a half year old son, [X].
Since the parties separated when [X] was only 12 months’ of age, they have been in almost continuous litigation, either in this Court or in the State Magistrates Court.
Since 2005, the parties have entered into a series of consent orders in relation to [X]’s living arrangements. Sadly, one or other of the parties have not been satisfied or happy with the arrangements agreed to and have sought the intervention of this Court for an adjustment to those orders.
The parties have a highly conflicted relationship and are completely unable to collaborate or cooperate in any way whatsoever in relation to the decisions that need to be made for [X]’s care. [X] has been caught up in this conflict for all his life.
The husband was born suffering from the affects of in vitro hydrocephalus. This has impacted upon his personality. The husband has been diagnosed with obsessive compulsive personality disorder arising from the rigidity, stubbornness and inflexibility in his thinking and behaviour, his preoccupation with minor details of life and his tendency to lack the capacity for introspection and self insight.
The husband’s personality disorder does impact on his parenting, but the clear evidence of the Report Writer Mr L is that the husband is able to have and does have a meaningful relationship with [X] and that his personality traits do not place [X] at risk when he is in the husband’s care.
The husband seeks orders that the parties have equal shared parental responsibility for [X], that [X] live with each of his parents on a week-about basis, for half the school holidays and there be a sharing of special days such as Christmas, birthdays, Father’s Day and the like.
Counsel on behalf of the husband indicates that as a ‘fall back position’, the husband seeks orders that [X] live with the wife and spend alternate weekends with him after school Thursday to before school Monday as well as for half the school holidays and special occasions.
The wife seeks orders that she have sole parental responsibility for [X], that [X] live with her, that [X] spend time with the husband each alternate weekend from after school Friday to 5.00pm Sunday, from 10.00am to 3.00pm on Christmas Day (if not otherwise spending time with the husband) and that otherwise [X] spend all other special occasions with whichever parent he is with pursuant to the orders.
The wife’s proposal accords with the recommendations of the Family Report writer Mr L and is supported by the Independent Children’s Lawyer.
As previously set out in this judgment, I have determined that the highly conflicted relationship of the parties is such that it is impossible for them to collaborate or cooperate in any way whatsoever in relation to the necessary decisions that need to be made for [X] and that in the circumstances it is in [X]’s best interests that orders be made for his primary carer to have sole parental responsibility.
I am also satisfied that [X]’s primary carer all his life has been the wife and that she should continue to be so into the future.
Accordingly, orders will be made for [X] to live with the wife and for the wife to have sole parental responsibility for [X].
This order does not mean that the husband will not continue to have responsibility for [X]. As [X]’s father, he will be responsible for his son for all of his life.
Further, this order does not mean that the husband should not be kept appraised of all the decisions made in relation to [X], relating to his education, health, religion and extra-curricular activities.
Accordingly, an order will be made that will require the wife to authorise [X]’s school to provide the husband with all reports and relevant documentation relating to [X] as well as enabling the husband to attend parent-teacher interviews; with such interviews to take place at a different time and on a different day to that of the wife and subject to the school being able to accommodate such an arrangement.
In relation to health matters, orders will be made for the husband to be appraised of any attendance by [X] on a medical practitioner and for the wife to authorise those practitioners to speak directly with the husband.
The wife is also to keep the husband apprised of all [X]’s extra-curricular and social activities so that the husband is able to ensure [X]’s attendance at those events when [X] is in his care.
As noted, because of the parties’ highly conflicted relationship and given [X]’s very strong wishes to live in the primary care of the mother, I am satisfied that this is not a matter in which an order for equal time would be in [X]’s best interests.
It is the husband’s proposal that in the event the Court does not make orders for shared care, orders be made that [X] live with the wife and spend alternate weekends with the husband from after school Thursday to before school Monday.
It is the evidence of the Family Report writer Mr L that a nine year old child should be able to tolerate four nights away from his or her primary carer.
However in this matter, [X] is not necessarily in the same position as most nine year old children. He has been caught up in his parents’ conflict for all of his life. Further, whilst there is no doubt that the husband genuinely and deeply loves his son and wishes to be actively involved as much as he can be in his life, the husband’s personality disorder does impact on his parenting style and his behaviours around [X]. [X] does at times struggle in managing and understanding those behaviours, especially when they are played out in public, such as at his school and at his sporting events.
[X] has expressed to Mr L quite clear views and wishes as to the time he believes he can comfortably spend with the husband, being each alternate weekend from after school Friday to 5.00pm Sunday.
[X] has indicated clearly that any time with the husband that extends beyond after school Friday to 5.00pm Sunday is more than he is comfortable with. [X] has also expressed a very strong view that he wishes to be able to go to school from his home base, being the wife’s home, rather than from the husband’s on a Monday morning.
The Family Report writer Mr L and the Independent Children’s Lawyer both strongly urge the Court to give considerable weight to [X]’s wishes.
Mr L expresses concern that a failure to make orders that accord with [X]’s wishes could impact on [X]’s willingness to spend time with his father and could undermine the positive and meaningful relationship that [X] and the husband currently have.
The practical difficulty in making orders that accord with [X]’s wishes is how changeover on a Sunday evening will be affected.
The wife has an indefinite intervention order against the husband and has expressed a very real reluctance to come face to face with the husband because of her fears that the behaviours that led to the intervention order will reoccur.
The wife therefore proposes that changeovers on Sunday take place at a contact centre to ensure her safety and to ensure that [X] is not exposed to any conflict between his parents at changeover.
The current orders make provision for the paternal grandparents to undertake changeover if changeover is not at school. The paternal grandparents are no longer able to undertake that duty with any degree of regularity because of their age and state of health.
The husband proposes that any changeover that does not take place at school be affected at the McDonald’s restaurant in [B], which has two entrances with two separate car parks. He proposes that one parent drop [X] at one entrance, [X] walk through the restaurant to the other entrance, where he will be collected by the other parent.
In his closing, Counsel for the Independent Children’s Lawyer indicated a real struggle in forming a view as to whether [X]’s time with his father should be alternate weekends finishing on Sunday evening or Monday morning. I confess to similarly struggling with this issue.
The practical difficulties of affecting changeover on a Sunday afternoon are easily addressed by a continuation of the current orders to ensure that nearly all changeovers take place at [X]’s school.
However, I am persuaded that in this matter [X]’s wishes must be given real weight and that orders be made to reflect those wishes.
In this regard, I am very much minded of the evidence of Mr L that to make orders that do not accord with [X]’s wishes may jeopardise the relationship he has with the husband rather than enhance it.
I am also of the view that [X]’s wishes in relation to there not being extended holiday time be given appropriate weight and that there be no orders made for additional time for [X] to spend with the husband during the school holiday period.
Having said this, I am of the view that in the event that [X]’s time with the husband falls on a long weekend, that time extend to 5.00pm on the Monday. This will enable [X] and the father to possibly have a long weekend away and still ensure [X] returns to his home base for school the next day. I am satisfied that on the very few occasion this would occur in any year, [X], especially as he gets older, will be more than able to manage an additional 24 hours with the husband.
In relation to special occasions, other than Christmas, I agree with the observations of Mr L that the best way forward in this matter is for there to be no provision for a sharing of these days given the high level of conflict between the parties. Orders will be made that provide for [X] to spend those special days with whichever of his parents he is spending time with in accordance with the orders of this Court.
In relation to Christmas, orders will be made that [X] spend from 10.00am to 3.00pm with the parent he is not otherwise living with pursuant to these orders.
When the April 2012 orders were made, they contained a restraint on each party attending any of [X]’s sporting or other extra-curricular activities whilst [X] was in the care of the other parents. This order was necessary as a result of a number of unfortunate incidences that have occurred when the parent who was not caring for [X] attended those events. Both parties agree that this order has ensured that [X] has been able to thoroughly enjoy his sporting endeavours without fear of the parental conflict intruding on his participation and that this order should continue into the future. Accordingly, orders will be made confirming its continuation.
In relation to changeover, neither of the parties’ proposals in relation to changeover which is not at [X]’s school is particularly satisfactory.
Whilst the parties have a highly conflicted relationship and the State Magistrates Court have determined that the wife should have an indefinite intervention order against the husband for her protection, I am of the view that with the appropriate safeguards in place, the parties should be able to effect changeover in a public forum without exposing themselves and, more importantly, [X] to their conflict. I am therefore of the view that changeover at a contact centre is not required.
Whilst not ideal, I believe the best way forward for changeover is in accordance with that proposed by the husband. To ensure that [X] is comfortable with those arrangements, for the first three instances of changeover at the [B] McDonald’s, [X] will be accompanied by the paternal grandmother or such other adult as nominated by the husband to ensure that the arrangements are well-established. Thereafter, [X] may be taken to McDonald’s by the husband. The orders will clearly restrain the parties from leaving their motor vehicles or from approaching the other’s motor vehicle during changeovers at [B] McDonald’s.
It will be very important that [X] be afforded an opportunity for confidential therapeutic counselling to enable him to have a private forum to express his concerns and difficulties as a result of the conflicted parental relationship as well as assertiveness training to help him understand and manage the husband’s personality disorder.
Orders will accordingly be made requiring the wife to do all things necessary to obtain a referral for [X] to a counsellor and requesting the Independent Children’s Lawyer to recommend to the wife a choice of suitable counsellors for [X]. The orders will also require the wife to provide [X]’s counsellor with a copy of these orders, Mr L’s two Family Reports and this judgment to enable [X]’s counsellor to be fully cognisant of the reasons for [X] seeing him or her.
Whilst the Independent Children’s Lawyer urged orders be made requiring the wife undergo counselling to assist her in managing her conflicted relationship with the husband and in assisting [X] in his move between the wife’s and the husband’s households, I am of the view that such counselling would only be of benefit if the wife voluntarily undertakes it. Accordingly, no order will be made requiring the wife to undertake such counselling. However the wife is strongly encouraged by the Court to do so.
Both parties and the Independent Children’s Lawyer strongly urged upon the Court the necessity for these orders to bring to an end the ongoing litigation between the parties in relation to [X]’s living arrangements in an endeavour to, as much as is possible, end the ongoing conflict which [X] has been exposed to because of his parents’ conflicted and dysfunctional relationship.
I am in agreement that this must happen for [X]’s emotional wellbeing and accordingly intend to make an order that the parties be restrained from bringing any further application in relation to [X]’s living arrangements without the leave of the Court and, where possible, any such application for leave be brought before me.
The wife is seeking orders that on one occasion each year, the husband’s weekend with [X] be suspended to enable her to take [X] on an extended holiday.
There is no doubt [X] would enjoy the opportunity for an extended holiday, either interstate or overseas.
However, such an order would mean that [X] would not spend time with the husband for four weeks.
I am of the view that there should be an order made in the terms sought by the wife but that there should be a ‘make up’ weekend following such a holiday. To eliminate any confusion for the parties, this means that upon [X]’s return from holidays, he spends the next three weekends with the husband and thereafter the alternate weekend arrangements recommence.
An order shall also be made to require the wife to provide the husband 28 days’ written notice of the weekend to be suspended.
The wife also seeks an order that the husband sign all necessary documents to enable [X] to obtain a passport and that if he fails to do so, a passport issue without the husband’s written consent. I will make such an order. I will also make an order that in the event that [X] is to travel overseas, the wife provide the husband with an itinerary for [X]’s proposed travel no less than 28 days prior to his departure, whether such travel is a holiday or school/extra-curricular activity related.
Finally, the wife seeks orders that [X] communicate with the parent he is not spending time with each Saturday afternoon by way of mobile phone which displays caller ID. The husband seeks orders he be permitted to speak with [X] on a daily basis when [X] is not in his care.
The April 2012 orders provide that the parties facilitate [X] calling the parent he is not with at least once per week and once per weekend and provided the parties’ respective telephone numbers.
A daily telephone call would be too interruptive and difficult to arrange, especially given [X]’s busy sporting life and increased social activities as he gets older. A call each Saturday only is also insufficient to enable [X] and the husband to keep each other abreast of their lives.
Accordingly, orders will be made for [X] to communicate with the husband on the Saturday evening he is not otherwise with the husband and each Tuesday evening for a period of no more than 15 minutes. Such call is to be made by the husband to the mobile number provided by the wife for the purpose of such calls.
When [X] is with the husband, orders will be made for [X] to telephone the wife on a Saturday evening for no more than ten minutes on the phone number provided by the husband for that purpose.
Child Support
The wife filed an Application on 13 September 2012 seeking the Court make orders pursuant to section 118 of the Child Support (Assessment) Act 1989 that there be a departure from the Child Support Agency’s assessment of the husband’s liability to pay child support for [X].
The wife seeks that the Court hear the application on the basis that:
(a)the Child Support Registrar has, pursuant to section 98E of the Child Support (Assessment) Act 1989, refused to determine the wife’s departure application on the grounds that it is too complex; and
(b)pursuant to section 116 of the Child Support (Assessment) Act 1989, there are parenting matters properly before the Court and that it is in the best interest of the parties that this Court determine this application in the special circumstances of the case.
I am satisfied that the Court should deal with the wife’s child support departure application.
The wife is seeking by way of departure an order that in addition to the amount assessed by the Child Support Agency for child support, the husband pay half of the following expenses for [X]:
(a)school fees each year;
(b)school uniform;
(c)registration fees for extra-curricular activities;
(d)uniform and equipment for extra-curricular activities; and
(e)health expenses.
It is the wife’s submission that a departure order should be made in the terms sought by her on the basis that [X] is being educated in the Catholic system in accordance with both parents’ wishes and expectations and because of the husband’s greater earning capacity.
[X] is currently enrolled at [S] Primary School in [U] (“[S]”). It is the wife’s evidence that both parties agreed that [X] be enrolled at a Catholic Primary School. In support of her evidence in this regard, the wife tendered correspondence from the husband’s solicitors to the wife’s then solicitors dated 16 October 2008 which set out the husband’s then proposal as to which school [X] attended as follows:
1. [X] could be enrolled at [F] School in [address omitted]. This school has a balanced curriculum, small class sizes and is close to your client’s place of employment, closer to our client’s place of employment and convenient to both their homes. [X] has had some involvement through our client’s side of the family with [B] School and has expressed to our client a desire to attend that school. Our client would be happy with this alternative as it offers similar benefits to [F].[1]
[1]
In the wife’s affidavit sworn 5 April 2012 and filed 10 April 2012 in support of her child support departure application, the wife deposes at paragraph 12 and 13 as follows:
12. THAT I say that in regard to [X] attending a Catholic Primary School both myself and the Applicant Husband as well as our families have been brought up as Catholics and attended Catholic schools. I believe that if the Applicant Husband and I were still together [X] would still have attended a Catholic school.
13.THAT I say it was always the Applicant Husband’s expectation that [X] would attend a Catholic school just as his mother and father did.
In relation to the husband’s earning capacity, it is the wife’s submission that the husband, who is qualified as a [omitted], has the capacity to earn an income much greater than his current salary of $52,000.00 per annum.
It is the wife’s evidence that she believes the husband to be employed on a part-time basis only and that he is capable of full-time employment.
It is the wife’s further evidence that the husband’s employer provides him with a fully maintained motor vehicle which he uses for work and private purposes and that the value of the private use component of that benefit should be included in any assessment of child support.
It is the wife’s evidence that she believes the husband may be receiving cash payments of up to $15,000.00 per annum for his [omitted] business.
It is the husband’s evidence that he does not want [X] to attend a Catholic school as they are too expensive and do not provide a better education than a State-run school. It is the husband’s evidence that he believes that if a child wants to learn, he will do so at a State-run school and does not need a private education.
In relation to the wife’s evidence that both he and the wife were educated at Catholic schools, it is the husband’s evidence that he did not attend either a Catholic primary or secondary school. It is his evidence that he was educated in the public school system.
It is the husband’s evidence that he has been employed as [omitted] on a salary of $52,000.00 per annum with [O] (“[O]”) for nine and a half years. It is his evidence that he does not intend to change employment in the foreseeable future.
It is the husband’s evidence that he has not had a salary increase since joining [O] as there are only he and the Director, Mr T, employed by [O] and that [O] cannot afford a wage increase. It is his evidence that when he has discussed a pay rise with Mr T, he has been advised that “if you don’t like it, there’s the door”.
It is the husband’s evidence that whilst his hours are flexible, he is employed on a full-time basis working between 30 to 38 hours per week depending on workload.
It is the husband’s evidence that he is provided with a motor vehicle by his employer, being a [vehicle omitted]. It is the husband’s evidence that he pays for its private usage and that he pays for half of all registration, insurance and maintenance costs of the vehicle. In addition, it is the husband’s evidence that he buys all the petrol for the motor vehicle and is reimbursed for half of the petrol costs by his employer on production of receipts.
In correspondence from Mr T, Director of [O], dated 20 April 2012 annexed to the husband’s affidavit sworn 16 May 2012, Mr T states:
Mr Dickson has also been provided with a company car for his business use only. Mr Dickson pays for all expenses associate with any private usage.[2]
[2] Annexure MD-3 of the Affidavit of Mr Dickson sworn 16 May 2012.
The husband denies he has a [omitted] business. It is his evidence that he [omitted]. It is his evidence that his parents allow him use of the holiday home in part to recompense for this service.
It is therefore submitted by the husband that the wife’s departure application should be dismissed.
Section 117(1) of the Child Support (Assessment) Act 1989 states:
(i)that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii)that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B)otherwise proper;
to make a particular order under this Division;
the court may make the order.
The relevant provisions of section 117(2) of the Child Support (Assessment) Act 1989 which the wife submits there are grounds for departure are:
·section 117(2)(b)(ii): because the child is being cared for, educated or trained in the manner that was expected by his or her parents; and
·section 117(2)(c)(ib): the earning capacity of either parent.
In relation to [X]’s education, the decision to enrol him at
[S] was solely that of the wife. Whilst the husband did not oppose [X]’s being enrolled in the Catholic system, I am satisfied that he does not have an expectation that [X] receive an education within the Catholic system.
Since the orders of the Court made 31 May 2010, the wife had sole responsibility for the decisions in relation to [X]’s education. Therefore, the decision that [X] continue his education at [S] has been and remains that of the wife alone.
Accordingly, I am not satisfied that [X] is being educated in the manner that was expected by both of his parents.
When considering the husband’s earning capacity pursuant to section 117(2)(c)(ib), the Court must had regard to section 117(7B) of the Child Support (Assessment) Act 1989. Section 117(7B) provides that the Court may determine that a parent’s earning capacity is greater than is reflected in his or her income only if the Court is satisfied that:
·the parent does not work or has reduced his hours or change his work patterns (section 117(7B)(a)); and
·the parent’s decision not to work, to reduce his number of working hours or to work below the normal number of hours per week that constitutes full-time work for the occupation, is not justified caring responsibilities or state of health (section 117(7B)(b)); and
·the parent has not demonstrated it was not a major purpose of the decision not to work, reduce hours or work patterns to avoid or reduce child support responsibilities (section 117(7B)(c)).
All three criteria of section 117(7B) must be met before a change of assessment can be made pursuant to section 117(2)(c)(ib).
The husband’s current employment pre-dates the parties’ separation. The terms and conditions of that employment have not altered since he commenced that employment.
It is submitted on behalf of the wife that the husband is employed on a part-time basis only. The husband’s evidence is that he is employed on a full-time basis, albeit his hours are flexible and based on his workload. I accept the husband’s evidence in this regard.
The husband’s current employment and its terms and conditions, including his hours, pre-date separation.
I am therefore satisfied that the husband’s major purpose in obtaining and maintaining his current employment is because he has a safe and secure job and an employer who is understanding of him, his personality and personal circumstances and is not to affect the administrative assessment of child support for [X].
Accordingly I find that the three criteria set out under section 117(7B) have not been met. In these circumstances, the Court cannot make an order for a change of assessment pursuant to section 117(2)(c)(b) of the
Child Support (Assessment) Act 1989.
Given that the wife has failed to establish that one or more of the grounds for departure as set out in section 117(2) of the
Child Support (Assessment) Act 1989has been met, her Application that the Court make a departure order pursuant to section 118 of the Child Support (Assessment) Act 1989 is dismissed.
I certify that the preceding three hundred and twenty-one (321) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate:
Date: 24 January 2013
Exhibit W1, Copy correspondence from the husband’s solicitors to wife’s solicitors dated
16 October 2008.
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