Dyson and Hickey

[2014] FCCA 136

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYSON & HICKEY [2014] FCCA 136

Catchwords:
FAMILY LAW – Parenting contest – acrimonious relationship between parents – Father has but refuses to acknowledge ‘anger management’ issues which he calls “passion” – Father provided no affidavit evidence at trial regarding parenting – despite long history of contest the Mother is still willing to promote the child’s relationship with the Father.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(2) & (3), 61DA, 65DAA

Mazorski v Albright (2008) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461

Applicant: MS DYSON

First Respondent: MR HICKEY

File Number: CAC 456 of 2010

Judgment of: Judge Neville

Hearing date: 7 August 2013

Date of Last Submission: 1 November 2013

Delivered at: Canberra

Delivered on: 31 January 2014

REPRESENTATION

Counsel for the Applicant: Ms J Godtschalk

Solicitors for the Applicant: Legal Aid, ACT

Counsel for the Respondents: Self-represented

Solicitors for the Respondents: Not Applicable

Solicitor/Advocate for the Independent Children's Lawyer: Mrs A Evans

Solicitors for the Independent Children's Lawyer: Evans Family Lawyers

ORDERS

1. All previous Orders be discharged.

2. The Mother have sole parental responsibility for the child [X] (born [in] 2004) (“the child”) and shall keep the Father informed of any relevant, major long-term decision regarding the child.   

3. The child live with the Mother.

4. The child spend time and communicate with the Father as agreed between the parties but failing agreement not less than:-

   (a)For six months from the date of these Orders from the conclusion of school on Friday to 4:00pm on Sunday each alternate weekend;

   (b)Thereafter:-

   (i)from the conclusion of school Friday until the commencement of school the following Monday on each alternate weekend; and

   (ii)For half of each ACT gazetted school holiday school period being the first half in all years ending in an even number and the second half in all years ending in an odd number or zero.

5. School holidays are to be the school holidays at the school which the child attends. They will be deemed to commence on the day after school breaks up and end on the day before the child returns to school. The party who is to spend time with the child is to have that time commence at 10:00am and to conclude at 3:00pm. One half of the school holiday period is to be calculated by dividing the total number of days the child does not attend school. If this is an uneven number, the Father is to have the additional day in the holidays falling or commencing on the even numbered years and not those in other years.

6. Changeovers that pursuant to Order 4a. occur with the Father collecting the child from school at the commencement of his time and returning the child to the entrance to the street of the Mother’s residence at the conclusion of his time.

7. Changeovers that pursuant to Order 4b. occur with the Father collecting the child from school at the commencement of his time and returning the child to school  at the conclusion of his time.

8. Changeovers that occur during school holiday periods occur with the Father collecting the child from the entrance to the street of the Mother’s residence at the commencement of his time and returning the child to the entrance to the street of the Mother’s residence at the conclusion of his time.

9. Each of the parties is retrained from speaking about the other in a derogatory manner, either to the child or in the child’s presence or allowing any other person to do so. In particular, the Father is hereby injuncted and restrained from:-

   (a)Discussing the content of these proceedings, including any allegations made in these proceedings with the child.

   (b)Discussing the contents of any reports produced in these proceedings with the child.

   (c)Discussing the contents of any proceedings undertaken against the Father pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the Domestic Violence and Protection Orders 2008 (ACT) and the Family Law Act 1975 (Cth).

   (d)Discussing with the child any routine or incident that may occur at the Mother’s residence. 

10. Each party shall advise the other within 24 hours of any medical or dental appointments at which the child attends and advise the other party of the name and address of any medical or other practitioner who examines or provides treatment or diagnosis in regards to the child and authorise that practitioner to give all information in relation to the child to the other party.

11. Each party will notify the other as soon as practicable of any medical emergency in which the child requires medical treatment. Should any such emergency arise, each parent will inform the other of the name and address of any treating medical practitioner and authorise that practitioner to speak to the other

12. Within 7 days of the date of these Orders, the Mother authorise any primary school or secondary school of which the child attends to provide information to the Father in relation to the child’s academic and co-curricular activities, including copies of school reports.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 456 of 2010

MS DYSON

Applicant

And

MR HICKEY

First Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns parenting arrangements for almost 9½ year old [X] (he was born [in] 2004).  Unfortunately, his parents have been in dispute for quite some time.  The matter is further complicated because Mr Hickey lives at [omitted], while Ms Dyson lives in the Canberra suburb of [omitted].[1]

   [1] All of the most recently filed documents on behalf of the Applicant Mother simply bear her address as “care of the Legal Aid Office ACT.”  This increasingly common practice of giving a party’s address as that belonging to their lawyer not only does not comply with the rules of Court but also gives no assistance in working out precise distances between the residences of the parents.  A similarly common failing in affidavits relates to the omission of occupation.  At least here, that flaw is not in evidence because the Mother attests to being on a disability pension.

2. The general distance between these two localities is approximately 80 kilometres, with a travel time of approximately one hour.  In certain respects, this logistical issue is not without significance, both for the parents and the transportation of [X], on the one hand, and on the other hand, (perhaps in time) for [X]’s perception of being somewhat removed, so to speak, when with his Father on his property from more suburban pursuits that would normally occupy young boys of [X]’s age.

3. In general terms, the main issue is not whether [X] should spend time with his Father but rather its frequency and duration.

4. The determination of the matter was hampered by the Father’s difficult and somewhat regular non-engagement with the Court’s processes.  For example, the most recently affidavit filed by the Father was on 17^th August 2012.  Apart from a notice of address for service, filed on 18^th February 2013, the Father filed nothing in relation to the August 2013 hearing.  These procedural and evidentiary gaps and concerns were highlighted to Mr Hickey at the commencement of, and at various stages during, the trial.[2]

   [2] See Transcript (7^th August 2013) pp.2-5 & 9.  Hereafter such references will be “T followed by the page number.”  At the commencement of his cross-examination, Mr Hickey confirmed that apart from his notice of address for service (filed in February 2013), his last affidavit filed in the proceeding was in August 2012; he confirmed that nothing further had been filed since that date.  See T 42.  Likewise, in the course of his cross-examination by the ICL he confirmed that he had not filed any material, in that instance, in relation to any of the allegations he made about the Mother’s care of [X].  See T 81.

5. As noted later in these reasons, part of the difficulty for the Father was his inability (or incapacity) to comprehend the nature of many of the Court’s processes and the reasons for them.  In the family report, which became Exhibit C, Mr Hickey confirmed (at para.6.23) that he had been diagnosed with “bipolar disorder.”[3]  To use the language of family consultants generally, in the course of the trial (as well as in the multiple Court events over the years) he presented as somewhat “dysregulated” in his focus and certainly in his inability to respond to many basic questions in the course of his cross-examination.  Some medical evidence was put before the Court which assisted in explaining how or why the Father has some of the difficulties he does.[4]  That said, there is no doubt that Mr Hickey loves his son, and that [X] wishes to spend time with his Father.  This is all to the good.

   [3] There were two earlier reports, by a different consultant, which became Exhibits B1 & B2.  For the purposes of these reasons I need not go through them.

   [4] See, for example, Exhibit E (letter from Dr L dated 24^th July 2013), and the documents produced by Dr L under subpoena which deal with Mr Hickey’s treatment by prescription medication for Adult Attention Deficit Disorder and Chronic Regional Pain Syndrome.  Pursuant to a submission from the ICL in a letter dated 11^th September 2013, the documents produced under subpoena from Dr L were later admitted into evidence and became Exhibit J.

6. At the hearing, and obviously because he did not provide any written material before the commencement of the trial, the Father advised that he would be seeking orders that [X] lived full-time with him (in his words – “full custody”) and spend each alternate weekend with the Mother.[5]  This was so notwithstanding that (a) Ms Dyson has been [X]’s primary carer since birth, (b) Mr Hickey signed consent orders in 2010 that provided for [X] to live primarily with his Mother, (c)

   
   

   Mr Hickey put no relevant evidence before the Court in the last 12 months (apart from a single letter that related to a meagre amount of child support), and (d) all the expert evidence before the Court recommended that the child continue to live primarily with his Mother.  He made a range of general accusations against the Mother’s care of [X], none of which were supported by any evidence.

   [5] T 4.

7. Further, in the face of a significant body of evidence that indicated his inability, at times, to control his anger and intemperate language (even to making threats), Mr Hickey refused to accept that any of the events recorded, for example, in police records, ever took place, or that they took place as independently recorded.  Instead, his invariable response was that he is very “passionate” about his son.  For reasons noted later, his “passion” has not always been properly restrained.  His lack of restraint, and his inability, at times, to focus on the best interests of [X] (rather than his own need to spend time with his son) showed a significant and concerning lack of parental insight. 

8. In my view, in the light of the evidence, Mr Hickey showed a highly developed sense of grievance at being [allegedly] denied time with his son.  In his view, when he was denied what he considered to be “fair”, he would exhibit “passion” in his response.  Unfortunately, according to the evidence, such exhibitions were sometimes in front of the child.

9. As noted later in these reasons, he also confirmed that if he did not get what he wanted, he would continue to pursue what he perceived as his entitlement to time with [X]. Such comments and determination showed, in my view, a lack of insight, particularly Mr Hickey’s inability to perceive and accept that the longer litigation and the contest between the parents continued, the more damaging it would be for his son.

10. For the reasons that follow, the orders sought by the Mother, which essentially conform to the recommendations of the family consultant, and which were supported by the Independent Children’s Lawyer (“the ICL”), are, in my view, in [X]’s best interests.[6]  Those orders shall be the orders of the Court.

    [6] The ICL confirmed her support of the Mother’s position and her orders sought, including sole parental responsibility, in the course of her oral submissions at the conclusion of the hearing.  See T 89.

11. After setting out the orders sought by the Mother (the Father having filed nothing, and advising the Court of his orders sought at the commencement of the trial, and the ICL supporting the Mother’s orders sought) these reasons deal very briefly with the evidence - of the parties and the family consultant - and then with the legislative pathway.

A.       Orders Sought

The Applicant Mother’s Orders Sought

That all previous Orders be discharged.

That the parties have equal shared parental responsibility for the child [X] born [in] 2004

That the child live with the mother.

That the child spend time and communicate with the father as agreed between the parties but failing agreement not less than:-

a)For six months from the date of these Orders from the conclusion of school on Friday to 4:00pm on Sunday each alternate weekend;

b)Thereafter:-

i)from the conclusion of school Friday until the commencement of school the following Monday on each alternate weekend; and

ii)For half of each ACT gazetted school holiday school period being the first half in all years ending in an even number and the second half in all years ending in an odd number or zero.

That school holidays are to be the school holidays at the school which the child attends. They will be deemed to commence on the day after school breaks up and end on the day before the child returns to school. The party who is to spend time with the child is to have that time commence at 10:00am and to conclude at 3:00pm. One half of the school holiday period is to be calculated by dividing the total number of days the child does not attend school. If this is an uneven number, the father is to have the additional day in the holidays falling or commencing on the even numbered years and not those in other years.

That changeovers that pursuant to Order 4a. occur with the father collecting the child from school at the commencement of his time and returning the child to the entrance to the street of the mother’s residence at the conclusion of his time.

That changeovers that pursuant to Order 4b. occur with the father collecting the child from school at the commencement of his time and returning the child to school  at the conclusion of his time.

That changeovers that occur during school holiday periods occur with the father collecting the child from the entrance to the street of the mother’s residence at the commencement of his time and returning the child to the entrance to the street of the mother’s residence at the conclusion of his time.

That each of the parties is retrained from speaking about the other in a derogatory manner, either to the child or in the child’s presence or allowing any other person to do so. In particular, the father is hereby injuncted and restrained from:-

c)Discussing the content of these proceedings, including any allegations made in these proceedings with the child.

d)Discussing the contents of any reports produced in these proceedings with the child.

e)Discussing the contents of any proceedings undertaken against the father pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the Domestic Violence and Protection Orders 2008 (ACT) and the Family Law Act 1975 (Cth).

f)Discussing with the child any routine or incident that may occur at the mother’s residence. 

That each party shall advise the other within 24 hours of any medical or dental appointments at which the child attends and advise the other party of the name and address of any medical or other practitioner who examines or provides treatment or diagnosis in regards to the child and authorise that practitioner to give all information in relation to the child to the other party.

That each party will notify the other as soon as practicable of any medical emergency in which the child requires medical treatment. Should any such emergency arise, each parent will inform the other of the name and address of any treating medical practitioner and authorise that practitioner to speak to the other

That within 7 days of the date of these Orders, the mother authorise any primary school or secondary school of which the child attends to provide information to the father in relation to the child’s academic and co-curricular activities, including copies of school reports.

1. I have already noted the Father’s limited form of orders sought, which he outlined at the commencement of the trial.

B.       Evidence of the Parties

1. The oral evidence of the parties was relatively brief.  It may be summarised as follows.

2. The Mother’s Evidence: The Mother struck me, as she did the family consultant (Ms C similarly – see paras. 8.4 & 8.12 of the Family Report, Exhibit C), as being generally a co-operative person who was more than willing to give Mr Hickey a reasonable opportunity to spend time with their son.  Indeed, as the family consultant noted, she referred to [X] as “our son.”

3. Ms Dyson’s capacity and willingness to promote [X]’s relationship with his Father is even more commendable in the light of repeated accusations having been made against her by Mr Hickey over a significant number of years.

4. The evidence of Ms Dyson was that in relation to each of the allegations of her lack of care of [X], or allegations made where [X] had been “assaulted” by his older half-brother, they had been investigated by the police and or by the relevant welfare authority with no further action taken.[7]  Not only do I accept her evidence but also the records from, for example, OCYFS (Exhibit D), confirm that such investigations led to no further action being taken.

   [7] See the discussion at T 36-38.

5. Ms Dyson also confirmed that while [X] was suspected of having Attention Deficit Hyperactivity Disorder, further investigation by a paediatrician (and her GP) indicted that the child’s reactions and activity generally were more likely than not the result of him being the subject of “situational stress”.  It was also indicated that part of this stress related to the separation of and conflict between his parents.  The Mother’s account was supported by records from a psychologist (Ms A).  Those records became Exhibit H.

6. I accept the Mother’s evidence as truthful.  She was a co-operative witness.  She has clearly faced an on-going, almost relentless series of contests with Mr Hickey over a long period of time.  Yet, to her significant credit, she continues to promote the child’s relationship with his Father.

7. Where-ever there is any conflict in the account of any event between the parties, I should be taken to prefer and accept the Mother’s evidence in preference to that of Mr Hickey. 

8. In saying this, I do not suggest that the Father ever sought to mis-lead the Court.  Rather, in my view, he has very significant difficulty (a) in accurately perceiving where his interests prevail over, or have over-taken, his son’s best interests, because he patently considers that they are essentially identical when they are not, and (b) in recognising that what he inaccurately describes as “passion” regarding his son is in fact anger and presents to other people (including the Mother) as aggression and intemperate language, neither of which are acceptable.

9. The Father’s Evidence

   : Unfortunately, for reasons already noted,

   
   

   Mr Hickey’s evidence was difficult to elicit at times because he would not, or could not, focus on the question being asked of him.  Often, he was much more intent on making a submission in which he told of a particular (or more general) grievance about the Mother and or his inability to spend more time with his son.  I note again that Mr Hickey failed to comply with Court orders for the filing of material for the trial (with nothing filed by him in the last 12 months) and failed to provide any relevant documentary evidence regarding parenting, other than a letter from the Child Support Agency (Exhibit F).  Its relevance to the matters for the Court to decide was extremely marginal if not utterly remote.

1. It is not appropriate for a party to complain, as the Father did, about either the process or the orders of the Court if he or she fails to comply with trial directions for the filing of material and likewise, more generally, fails to provide any evidence at the trial.  Mr Hickey clearly failed to provide any relevant evidence at the trial.  He made the task of everyone – including the Court – significantly more difficult because of his failure properly to engage with the trial processes.

2. Early in his evidence, he accepted the comment from an earlier family report (by a different consultant) to the effect that the on-going conflict between the parents would impact negatively on [X].  However, all too quickly Mr Hickey indicated that all responsibility for the undiminished parental contest should rest with the Mother.[8]  Put another way, he took little or no responsibility for the on-going parenting dispute.

   [8] T 45-46.

3. He acknowledged that he had a head injury (suffered while playing cricket) and that he had a bi-polar condition.  He confirmed that he was medicated, and that he continued to take medication (Zoloft).  He said that his mood was under control “when things are fair.”[9]

   [9] T 64-65 & 67.

4. As earlier noted, he is “passionate” about what he wants, particularly regarding [X].[10]

   [10] T 66 & 67. 

5. I should note that the Father’s “anger management” issues are recorded in subpoened records from the AFP (Exhibit G) and in medical records (Exhibit I).  Indeed, in response to a series of questions from the ICL regarding independently recorded evidence of his abuse and an inability to control his temper (and his language) – abuse to medical centre staff, abuse to AFP officers, and abuse/threats to the ICL’s staff[11] - Mr Hickey explained such instances as him being “passionate” about his son.  In my view, he does not accept responsibility for his actions in certain, troubling respects.

   [11] See, respectively, T 65-66, 78-79.

6. Giving every allowance for his medical issues, Mr Hickey’s response to the police, and others (including the Mother) borders on the childish.  This is to say that, provided he gets his way or what he wants, everything is “fine.”  However, if he does not get what he wants, then there are problems, including outbursts of anger and bad language directed at those who are perceived to have thwarted him.  Such behaviour is unacceptable – for children or parents.

7. Mr Hickey confirmed that he does not, and that he will not, contribute to the travel costs associated with him spending time with his son.  This is in circumstances where, among other things, the Mother is on a disability pension, and the Father works (apparently full-time, but flexibly) on his family’s [property omitted].[12]

   [12] T 71.

8. With regret and some alarm, I should also note that during his attempts to ask questions of the family consultant during the trial Mr Hickey said that to continue to do so was a joke and a waste of time.[13]  Doubtless this was in circumstances where the family consultant did not budge from her recommendations and comments that were much more favourable to the Mother and somewhat critical of the Father.  In the same place and exchange, Mr Hickey confirmed, somewhat threateningly and in the face of a warning from the Court, that he intended to continue the contest from which he would not “walk away.”

   [13] T 57.

9. What was even more troubling were the Father’s comments, which were consistent with his evidence, regarding what I would describe as ‘conditional support.’  The Father’s submissions speak for themselves.  He said:[14]

   [14] T 87-88.

   When [X] is in my care, I look after him 100 per cent.  There’s no – no worries about not looking after my son.  If I was getting – and Ms Dyson knows this and I’ve told her.  If I was getting him when I supposed to, I would help with a lot of things.  I – actually, in two thousand and – 2010, I actually was paying for his school and dentist and doctors and dah, dah, dah.  So it wasn’t until these problems kept going that I just paid what I had to and I believe I’m entitled to do that.  If I never see my son and someone wants to stop me seeing my son, I have every reason not to pay.  Why should I pay for someone I never see when I want to see them – when I want?  It’s different for fathers or mothers who don’t want to see.  Your Honour, I’m committed.  I’ve been here for three years doing this so that shows I’m a committed father.  I’m here for my child – I’m not here for problems with this one or that one, or do this or that.  That doesn’t bother me, all that stuff.

   HIS HONOUR:   It could be argued though, Mr Hickey, that your love or your support for your son is conditional.  That is, that you will only pay when you get to see him.

   MR HICKEY:   Well, no, when he’s in my care, I look after him 100 per cent.

   HIS HONOUR:   No.  I understand that.  But you have said, a number of times, that in your view, it is only fair and that you would – you would pay more if you saw him more.

   MR HICKEY:   Well, why isn’t that fair?  Why should I pay for him when I never - when I’m not with him.  If – if the mother wants him, obviously ‑ ‑ ‑ 

   HIS HONOUR:   Is a parent’s ‑ ‑ ‑ 

   MR HICKEY:   ‑ ‑ ‑ she can look after him.

   HIS HONOUR:   Is a parent’s love conditional?  You love him the same amount when you’re with him and when you’re not.  Is that not the case?

   MR HICKEY:   That’s the case, your Honour.

   HIS HONOUR:   But your ‑ ‑ ‑ 

   MR HICKEY:   But I will not pay for some ‑ ‑ ‑

   HIS HONOUR:   But your physical or practical support stops only to the degree that you’re seeking.  Correct?

   MR HICKEY:   Depending what it is.  If it’s money that goes to something that I know where it’s going, yes, I would pay.  If it goes to drinks and smokes or whatever else – I don’t know that.  I’m not saying that, but that’s the reason ‑ ‑ ‑

10. In my view, as I have already noted, Mr Hickey has continued to show (a) a heightened sense of grievance about the [lack of or limited] time [X] spends with him, (b) a continuing focus on badgering the Mother about parenting arrangements, and (c) a significant lack of insight in failing to accept either a relevant degree of responsibility for the on-going conflict and/or the damage to the child of the continuing parental conflict.  Likewise, he does not accept that he has any anger management issues, when the independent evidence clearly discloses that he does.

11. I accept that Mr Hickey loves, and cares as diligently as he can for, his son.  However, in my view, he continues to exhibit a significant lack of insight in being able to put [X]’s interests above his own.  Likewise, he is unable (and has been unable over many years) to ameliorate, as earnestly and as properly as he should, his disregard for the Mother and the important role that she obviously plays in the child’s life.

12. The Family Consultant’s Evidence:  It is important to record certain sections from the Family Report, following which I note very briefly comments made in her oral evidence.

13. From the Family Report (Exhibit C), I note the following.  Although lengthy, it is useful to record basically the full text of the evaluation by Mr C, and her recommendations.  Beginning at Section 8 of the Report, she said:

    8.1  This is a bitter dispute.  Mr Hickey has aligned with the Lone Fathers’ Association.  He now presents as embittered and hostile towards his ex-partner and angry about his reduced time with his only son.  His attitude does not lend itself to co-operative parenting although undoubtedly he cares for [X].

    8.2    Given the distance involved it was not surprising that problems arose when [X] commenced school.  Obviously at this time the previously shared informal arrangement could not persist and [X] had to have a primary residence.  Mr Hickey might have been better to accept this and enjoy weekends and holidays with his son without making minor complaints to overstretched organisations such as Child Protection Services and the police.  When [X]’s G.P. Dr S referred him to a psychologist, Ms A under a G.P. Mental Health Care Plan, Dr S noted “Father rang us in the surgery and swore and abusive towards my staff as we would not give him any information re his son (30/9/2010). 

    8.3    Mr Hickey maintains a strong perception that his ex-partner was determined to exclude him from [X]’s life.  This did not appear to be the case to me.  Conversely If he was to care for [X] full-time, Mr Hickey made no commitment to promoting Ms Dyson’ role in their son’s life and did not know how much time he should spend with her. 

    8.4    When [X] was younger, Mr Hickey’s lack of respect for

    
    

    Ms Dyson was demonstrated by his unwillingness to adhere to regular arrangements.  On the other hand, encouragingly, in contrast to many parents in conflict that I speak to, Ms Dyson referred to [X] as “our son” and demonstrated a willingness to be co-operative.

    8.5    Even though Mr Hickey told me that his new partner did not want to be part of this dispute, Ms L sent me two separate e-mails with photos attached shortly before this report was due.  Two had the notation “I just want you to see how safe and beautiful the [property] is for [X].”

    8.6    Ms Dyson reported a marked improvement in [X]’s behaviour at home and at school since his time with his father was reduced to day visits only.  Although [X] was somewhat restless after a while in the boring confines of the interview room, he did not present as unduly anxious when informally observed or on a common measure of children’s anxiety. 

    8.7    On 12 April 2012 Dr E, paediatrician, reported that she had been following [X] for some features of ADHD but went on to conclude “[X]’s ADHD symptoms are very obvious at school according to his Conners’ rating scales but not at all obvious in the home environment and therefore a diagnosis of ADHD is not likely at this stage”.  No medication was prescribed. 

    8.8    In my opinion, [X]’s presentation is not assisted by the conflict between his parents and he must be allowed a chance to have a secure predictable routine and home base with no adverse comments or allegations being made about his mother by his father.  Such comments can only unsettle him.

    8.9    In my opinion, some of Mr Hickey’s anger reflected his frustration because he felt he had not been heard.  He assured me he could cooperate with his ex-partner about [X]’s care and time with him although I have some reservations about this based on events of the last couple of years.  It would be most unfortunate if [X] is denied extra time with his father because of his father’s behaviour given that Mr Hickey obviously is well able to enrich his life and indeed very keen to do so.  Despite safety concerns, [X] has evidently never been injured at his father’s.  [Property omitted] are inherently dangerous as well as very rewarding, exciting places for children.

    8.10  At the end of my interviews it was very pleasing to note that Mr Hickey and Ms Dyson were pleasant to each other.  [X] hugged his father goodbye with his mother’s encouragement. 

    8.11  The day after the report interviews, Ms Dyson rang me to advise that she had spoken to [X] when they got home and wanted to tell me that “He would be perfectly happy to spend a week at Christmas time with his father”.  This seemed to significantly undermine her application that Mr Hickey’s time with [X] was supervised and indeed restricted to day time only.

    8.12  Given this co-operative approach from Ms Dyson coupled with my observations of [X] with his father, I would like to be able to confidently recommend that overnight contact recommence even though [X] expressed opposition to this to me.  If Mr Hickey could accept and promote Ms Dyson as primary carer, [X] would be able to enjoy his time with both of his parents.  My reservations are about Mr Hickey’s ability to do this.  In a Record of Intervention prepared for the Federal Magistrates Court of Australia dated 26 July 2012, the Office of Children Youth and Family Support (OCYFS) advised they had received five confidential child protection reports from 15 March 2010 to 23 July 2012 all apparently from Mr Hickey.  None were deemed serious enough to proceed to appraisal and OCYFS did not undertake any ongoing involvement.

    8.13  In conclusion, Mr Hickey should be given a final chance to prove he can be respectful to his ex-partner.  I recommend Mr Hickey undertake a parenting after separation course to assist this.  I have some hope that if he is reassured that he can maintain a meaningful role in his son’s life, Mr Hickey will cease his frantic efforts to denigrate Ms Dyson.  These efforts in my opinion reflect his personality and related response to frustration rather than any mental illness.

    8.14  [X] would also be assisted if the opportunities for conflict between his parents were reduced.  This could be achieved by changeovers as often as possible taking place at school.  Much goodwill would be established if Mr Hickey contributed to Ms Dyson’s costs in facilitating his time with [X].  This would seem particularly appropriate given he apparently does not pay child support and yet works on a family property while Ms Dyson is on a Disability Support Pension and reliant on her husband.

14. On the basis of the evidence put before the Court in the course of the trial (and subsequently), I agree with and accept Ms C’s analysis and comments.

15. The recommendations of the family consultant were as follows:

    9.1    That [X] remains in his mother’s primary care;

    9.2    That Mr X attends a parenting after separation course as soon as possible;

    9.3    That orders include the usual prohibitions on Mr Hickey discussing, interrogating or denigrating Ms Dyson with and to [X];

    9.4    That [X] spends a week with his father during the Christmas holidays;

    9.5    That for the next six months [X] stays with his father from after school Friday to 4.00 p.m. Sunday, alternate weekends, thereby allowing Mr Hickey some involvement in [X]’s schooling;

    9.6    That for the following six months [X] stays with his father from after school Friday until the Monday morning when his father should return him to school; and

    9.7    That [X] spends half of each school holiday period with his father.

16. Although couched more in terms of interim orders, the basic recommendations (or the basic thrust of them) I also accept.

17. Indeed, in the course of her brief oral evidence, Ms C confirmed that (a) a ‘shared care arrangement’ was completely out of the question because of the conflict between the parents, (b) each alternate weekend time between [X] and his Father was the best and most appropriate “time with” arrangement, especially given the geography or physical distances between the parties and (c) Mr Hickey had wrongly interpreted the Bene-Anthony results recorded in her report, and in any event, they were just part of the overall analysis.  In short, the recommendations made in her report made in December 2012, remained, in her view, relevant and were the best for [X].[15]

    [15] See the discussion at T 55-61.

18. I accept Ms C’s evidence and endorse her comments and recommendations.

The Legislative Pathway

1. For current purposes, the following summary of principle by Brown J in Mazorski v Albright in relation to Part VII of the Act is sufficient (noting, of course, the relevant statutory changes to the primary and additional considerations in relation to “family violence”).  Respectfully, I adopt Brown J’s overview of relevant sections (and principles) of Part VII of the Act.  Her Honour’s comments should, of course (as I have said), be considered in the light of relevant statutory changes, for example, to s.60CC(3)(c).[16]  At [3] – [6] her Honour said:

   [3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

   [4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

   [5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.

   [6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

   [16] (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; Maluka v Maluka (2012) 45 Fam LR 129.

2. Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.”  At [20] - [26], her Honour outlined a range of relevant considerations.  I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[17]

   [17] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly approved Brown J’s remarks.

   [20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions.  At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach.  The paragraph continues:

   The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.

   [21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division.  The objects use the words “meaningful involvement”.

   [22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:

   The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody.  The presumption relates solely to the decision making responsibilities of both parents.  New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.

   [23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):

   [196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship.  This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents.  This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time.  The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders.  This is set out in s 60CA by item 9.

   …

   [199] Section 65DAA (2) – (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement.  It is intended to ensure a focus both on the amount of time and the type of time.  It would include both day time contact and night time contact.  It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child.  It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.

   [24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”.  A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”.  These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989.  It defines “meaning” (in generalised use) as “significance”.  The examples provided take the matter no further.

   [25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”.  Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.  I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive [sic] one.  Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

1. Following sequentially the order of “additional considerations” in s.60CC(3) (without necessarily naming each of them), I note that, regarding the child’s “views”, [X] told the family consultant (para.7.1 of the report) that he “liked the current arrangements.”  As described by him, those arrangements were that he lived with his Mother and spent one day with his Father.  He indicated that he did not wish to sleep over at his Father’s. 

2. [X] also made plain to the family consultant that his Mother had not discussed with him what should or should not happen following the Court proceedings, thereby (in my view) showing the Mother’s care in trying not to influence or to embroil the child further in the dispute between his parents.

3. [X] had conflicting things to say about his step-Father, some of them positive, others somewhat critical.  In my view, it is unnecessary to canvass them because they add little to the matters for the Court to determine or take into account.

4. There is no doubt that [X] has a good and close relationship with both parents.  As already noted, it might be said that he has a slightly ambivalent relationship with his step-Father.  The Father’s partner was not interviewed by the family consultant.

5. I accept that the Mother is prepared and has attempted to promote and facilitate [X]’s relationship with his Father.  I am not and cannot be as confident that Mr Hickey, has been, or would always be, so encouraging of [X]’s relationship with his Mother.

6. There are allegations of domestic violence between the parties.  However, because they have been separated for so long, I have difficulty seeing how such matters bear directly on the current matters before the Court.

7. The orders proposed by the Mother, in my view, will not affect in any immediate or relevant way the child’s relationship with his Father. 

8. Nor are there any substantial issues, or at least any supported by any evidence, as to whether either parent can properly care and provide for [X].  That said, Mr Hickey has been embarrassingly frugal if not downright stingy in paying child support and otherwise assisting financially in the care of [X] when his son is not with him.  The evidence was that Mr Hickey had paid $211.00 in child support over nine years.  This has meant that Ms Dyson has had to shoulder much more than the lion’s share of financial responsibility for [X]’s care.  Indeed, Mr Hickey made plain that he would provide more financial assistance but only if he was able to spend more time with his son.  Such an attitude is niggardly and appallingly conditional.

9. It was submitted on behalf of the Mother that in such financial circumstances, and because of her inability to drive, it was proper that Mr Hickey do all the changeovers.  I accept this submission.  Apart from the travel time and distance there are no other practical difficulties or expenses that impact adversely on the orders of the Court.

10. Every effort should be made to limit the parents coming in to contact at changeovers.  Where-ever possible, they should be at school.

11. For the purposes of s.60CC(3)(g) and (i), the evidence confirms that the Father has some significant limits in relation to his capacity to recognise always, and properly prioritise, [X]’s best interests over his own interests.  Part of this, in my view, must be attributable, to some degree, to the medical issues to which I have referred.  There was not, however, sufficient evidence to link Mr Hickey’s medication (Zoloft) to his mood swings and his inability, at times of stress, to control his unfortunately “passionate” engagement with third parties (police, legal and medical staff).

12. It is concerning that Mr Hickey said a number of times during the hearing that he would pursue the matter where, in his view, “his time” with [X] was either not fair or had been cut back.  Such comments do not give the Court much confidence that any orders will necessarily bring the parental contest to any likely end.  However, to the degree that the Court can and must have regard to making orders that would be least likely to lead to the institution of further proceedings, those proposed by the Mother satisfy this requirement.

13. In relation to the legislative pathway generally and the orders that are in [X]’s best interests, I set out in full the ICL’s final, oral submissions.  She said:[18]

    I support the position taken by the mother, your Honour.  There are two matters just sort of arising from Mr Hickey’s submissions and they relate to what the objectives of the parenting sections of the Act require your Honour to consider, and that is ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent with the best interests of the child.  In my submission, what is consistent with [X]’s best interest to the maximum extent, consistent with his best interest, is the proposal put forward by the mother, which is essentially the proposal put forward by the expert, having had regard to her interviews and assessments with the parties and also with [X].

    But the other matter, your Honour, is – the other issue under section 60B, which is subsection (d), is ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.  Your Honour, this is a matter where it would, on my submissions, be that although parents – both of the parents believe that they’re fulfilling their duties, it’s a matter where, in my submission, Mr Hickey might misunderstand what his duties and responsibilities are.  His comments to your Honour in relation to his commitment to child support are shocking in that he freely concedes he will pay child support almost as a reward for spending time with [X], but he will not pay child support if he perceives that his time will be reduced or minimised or he doesn’t see him at all.  That, in my submission, is indicative of Mr Hickey’s general approach to this entire litigation.

    His attitude seems to be, “Well, I simply want what I want and if I can’t get it, well, the matter won’t finish here today, your Honour.”  His attitude to those that have been involved in the proceedings, whether they be family services or whether they be the police, treating/general medical practitioners, psychologists, the independent children’s lawyer, has been to respond with aggression and hostility and on occasions threats.  It’s consistent with what the mother has said of her relationship with the father at a time they were together and it’s consistent with what she says has occurred post separation in terms of bullying and threatening text messages and harassment generally from Mr Hickey.

    In my submission, therefore, what’s appropriate for [X] is to reduce and minimise the amount of conflict that can be generated around him and that would be to have Mr Hickey spend each alternate weekend with [X] and half holidays.

    [18] T 89-90.

14. I accept these submissions from the ICL.  For completeness, I also note the ICL’s final submissions regarding parental responsibility.  In this regard, she said:[19]

    I also support the mother’s position in terms of parental responsibility, your Honour.  It’s a matter that I flagged this morning.  In my submission, it’s apparent from the material, but also from what has transpired today in court in terms of oral evidence, that these parties have almost no capacity to be able to communicate with each other, let alone arrive at a mutual decision regarding [X]’s long-term care.  There are disputes about his medical treatment, there are disputes about which school he will go to, there are disputes about changeover.  There is a dispute about support.  They are matters, in my submission, your Honour, that don’t bode well for a shared parental responsibility order.

    Section 61DA(4) allows your Honour to not make an order if you’re satisfied that the presumption is rebutted on the evidence, and in my submission, and I will tender this material your Honour – that there is sufficient evidence for you to accept that that presumption has been rebutted in this case and I would support the order that is now redrafted:  that the mother have sole parental responsibility, but that she be required to notify

    
    

    Mr Hickey in writing of the decisions that are ultimately made for [X].  That will allow Mr Hickey to continue to be appraised of all of those issues and if he wishes to receive information or put in any feedback, he can do so, but it removes the requirement, your Honour, of these parties having to communicate with each other, let alone reach a decision about [X]’s long-term care.

    [19] T 91.

15. I also accept these submissions by the ICL. 

16. Counsel for the Mother confirmed in closing submissions that the Mother would be seeking an order for sole parental responsibility, given the Father’s evidence in the course of the trial.

17. On the evidence before the Court, not least the complete inability of the parties to communicate civilly and reasonably, I accept the Mother’s submission that the presumption regarding equal shared parental responsibility set out in s.61DA of the Act is rebutted.  It is appropriate for an order for sole parental responsibility in the Mother’s favour, but with the proviso she proposed, namely that she keep the Father informed of any relevant, major long-term decision regarding the child.  The rebuttal of the presumption and the order for sole parental responsibility negatives the usual imperative of the Court to consider s.65DAA and the case law that relates to it, such as MRR v GR.[20]

    [20] MRR v GR (2010) 240 CLR 461.

18. Finally, in my view, the orders proposed by the Mother are in [X]’s best interests, in accordance with s.60CA of the Act. Those orders will now be made. They provide regular time between [X] and his Father during school terms, as well as for regular time during school holidays.

Conclusion

1. By way of summary, and by way of formal “findings” of the Court, I note that:

   (a) the Father filed no evidence in the last 12 months in support of his orders sought which, in any event, were only advised to the Court at the commencement of the trial;

   (b) the Father refused to acknowledge that he has any anger management issues in circumstances where his “passionate” responses recorded by the police and other third parties confirms that he has difficulty regulating his temper and, at times, curbing his abuse;

   (c) the records of police and a medical centre that record Mr Hickey’s abuse is consistent with the Mother’s account of contest and abuse she encountered during the relationship (and since).  The Father’s denial of his abusive conduct, as recorded by third parties, is a significant consideration for the Court;

   (d) the Father’s financial assistance to the Mother in relation to the child has been parsimonious and conditional on him securing more time with his son;

   (e) the Father does not take any appropriate responsibility for the continuing, discordant parenting relationship with the Mother, and

   (f) in a significant number of respects, the Father has shown little insight into the needs of his son (e.g. the importance of the Mother in the child’s life), not least being the risk to the child of remaining embroiled in the conflict between his parents.

2. Finally, in no threatening way do I note that if Mr Hickey were to persist in the kinds of relentless attacks on Ms Dyson that he has followed or pursued over the last few years, in a worst case scenario, he could find that his time with [X] is significantly restricted (e.g. limited in time and or supervised) – or worse, stopped completely.  The matter has now been litigated to a conclusion; there have been a number of family reports, and reports from independent sources.  While no orders are perfect, in the light of all the evidence, the Court has determined that those that are now made are in [X]’s best interests.  Mr Hickey will have regular time with his son, during school term and during school holidays.  To a significant degree, how these orders work to facilitate the on-going meaningful relationship of the child with both parents, and to protect him from any further contest between them, will very much depend on Mr Hickey and his attitude to parenting and to the Mother.  Hopefully, everyone can now get on with their lives as best they can, free from Court (and all other) intervention.  We shall see.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate: 

Date:  31 January 2014