Eccleston & Eccleston (No 2)
[2022] FedCFamC2F 45
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Eccleston & Eccleston (No 2) [2022] FedCFamC2F 45
File number(s): MLC 1249 of 2020 Judgment of: JUDGE BOYMAL Date of judgment: 25 January 2022 Catchwords: FAMILY LAW – Parenting – parental responsibility – live with and spend time arrangements – change of residence to father. Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 68Q Cases cited: Grella & Jamieson [2017] FamCAFC 21
In the marriage of Hall and Hall [1979] FLC 90-713
Marvel & Marvel (No. 2) [2010] FamCAFC 101
McCall & Clark [2009] FamCAFC 92
Oberlin & Infeld [2021] FamCAFC 66
Oscar & Traynor [2008] FamCA 95
Oscar & Traynor [2008] FamCAFC 158
Division: Division 2 Family Law Number of paragraphs: 369 Date of hearing: 21, 22 and 23 June 2021 Place: Melbourne Counsel for the Applicant: Ms McCreadie Solicitor for the Applicant: Lander & Rogers Solicitor for the Respondent: James McConvill & Associates ORDERS
MLC 1249 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ECCLESTON
Applicant
AND: MS ECCLESTON
Respondent
order made by:
JUDGE BOYMAL
DATE OF ORDER:
25 january 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Parental Responsibility
2.The father have sole parental responsibility in respect of all major long term issues for X born in 2016 provided that prior to making the sole ultimate decision about any issue:
(a)the father shall contact the mother in writing (email) and provide his views about any such issue;
(b)the mother may reply in writing to the father’s proposal within 14 days of receipt of same;
(c)should the mother respond then the father shall consider the mother’s views and opinions and advise the mother within a further 7 days of his decision in writing; and
(d)this limitation on time shall not apply if there is a question of emergency in which case the father has the sole parental responsibility in such circumstances.
Live with
3.X live with the father.
4.The father collect X from the childcare facility at the 5th Floor, Commonwealth Law Courts, 305 William Street, Melbourne, Victoria after the delivery of these orders.
5.The mother, her servants and agents, be and are hereby restrained from attending at the childcare facility at the 5th Floor, Commonwealth Law Courts, 305 William Street, Melbourne, Victoria after the delivery of these orders.
6.The mother, her servants and agents, immediately leave the premises of the Commonwealth Law Courts, 305 William Street, Melbourne, Victoria after the delivery of these orders.
Spend time and Communication
7.From the date of these orders until the second weekend of the first term school holiday period 2022 at D School:
(a)X spend no physical face to face time with the mother;
(b)X communicate with the mother via electronic communication by way of audio calls (or video calls at the discretion of the father) each Sunday between 9.30am and 10.00am, each Wednesday between 5.00pm and 5.30pm and at the conclusion of X’s first day at school, or at such other times and frequency as determined by the father taking into account any recommendations by any therapist with which the father engages to support X living with the father;
(c)all calls referred to in 7(b) herein be initiated by the father or his agent to the mother’s mobile number and the father be at liberty to monitor the calls and terminate a call at his discretion;
(d)the father send an email to the mother by 10.00pm each Thursday with information in relation to how X is adjusting to the new residential arrangements and how she is doing at school;
(e)the mother, her servants and agents, be restrained from approaching, contacting or communicating with X otherwise than in accordance with order 7 herein;
(f)the mother, her servants and agents, be restrained from attending D School;
(g)the mother, her servants and agents, be restrained from being within 1 kilometre of the father’s residence, D School and any venue at which X attends for extracurricular activities; and
(h)the mother be at liberty to contact D School by way of email only to obtain updates in relation to X’s progress.
8.Commencing the second weekend of the first term school holiday period at D School until the commencement of the second term school holiday period at D School, X spend time and communicate with the mother:
(a)each alternate weekend from the conclusion of school (or 3.00pm if a non‑school day or remote learning day) on Friday until the commencement of school (or 3.00pm if a non-school day or remote learning day) on Monday;
(b)on the Mother’s Day weekend from the conclusion of school (or 3.00pm if a non-school day or remote learning day) on Friday until the commencement of school (or 3.00pm if a non-school day or remote learning day) on Monday;
(c)via electronic communication by way of telephone audio calls (or video calls at the discretion of the father) each Sunday between 9.30am and 10.00am, each Wednesday between 5.00pm and 5.30pm; and
(d)all calls referred to in 8(c) herein be initiated by the father or his agent to the mother’s mobile number and the father be at liberty to monitor the calls and terminate a call at his discretion.
School Terms
9.Commencing the first Thursday of third term X spend time and communicate with the mother:
(a)during school terms each alternate weekend from the conclusion of school (or 3.00pm if a non-school day or remote learning day) on Thursday until the commencement of school (or 3.00pm if a non-school day or remote learning day) on Monday; and
(b)the mother’s alternate weekend time is suspended during all school holiday periods and recommences as though no break in time had occurred.
Term School Holidays
10.X spend time and communicate with the mother:
(a)during the second term school holiday period in 2022 for five nights as agreed in writing between the parents and failing agreement from 9.00am on the first Saturday of the holiday period to 5.00pm on the following Thursday;
(b)during the third term school holiday period in 2022 for seven nights as agreed in writing between the parents and failing agreement from 9.00am on the first Saturday of the holiday period to 5.00pm on the second Saturday of the holiday period;
(c)commencing the first term school holidays in 2023 for one half of each of the first, second and third term holidays as agreed in writing between the parents and failing agreement in each even numbered year for the first half and in each odd numbered year, for the second half;
(d)for the purpose of the first, second and third term school holidays:
(i)such period shall commence at the conclusion of the last day of term and conclude at 5.00pm on the day prior to the first day of the new term at the school X is attending;
(ii)changeover shall occur at 5.00pm on the middle day; and
(iii)in the event a division of the nights during the holiday period does not produce two equal halves then the parent having the care of X during the first half shall have the additional night.
Long Summer Holidays
11.Commencing the long summer holidays 2022/2023 X spend time and communicate with the mother as agreed between the parents in writing and failing agreement:
(a)in each even numbered year, from 9.00am on the first Saturday of the holiday period to 9.00am on the following Saturday and each alternate week thereafter;
(b)in each odd numbered year, from 9.00am on the second Saturday of the holiday period to 9.00am on the following Saturday and each alternate week thereafter; and
(c)for the purpose of the long summer holidays:
(i)such period shall commence on the first Saturday after the end of the school year and conclude at 9.00am prior to the first day of the start of the new school year at the school X is attending; and
(ii)changeover shall occur each Saturday at 9.00am.
Christmas
12.X spend time and communicate with the mother in each odd numbered year from 2.00pm Christmas Eve until 2.00pm Christmas Day and in each even numbered year from 2.00pm Christmas Day to 2.00pm Boxing Day.
Mother’s Day
13.X spend time and communicate with the mother on the Mother’s Day weekend from the conclusion of school (or 3.00pm if a non-school day or remote learning day) on Friday until the commencement of school (or 3.00pm if a non-school day or remote learning day) on Monday.
X’s Birthday
14.If X is not in the care of the mother the mother have telephone communication with X on her birthday at such time as may be agreed between the parents in writing and failing agreement at 8.00am with the mother to initiate the call to the father’s mobile telephone number.
Other
15.X spend time and communicate with the mother at such other or further times as may be agreed in writing between the parents.
Suspension of Mother’s Time
16.The mother’s time pursuant to these orders is suspended:
(a)from 3.00pm or the conclusion of school on the Friday immediately before Father’s Day to 9.00am or the commencement of school on Monday;
(b)in each even numbered year, from 2.00pm on Christmas Eve to 2.00pm on Christmas Day and in each odd numbered year, from 2.00pm on Christmas Day to 2.00pm on Boxing Day;
(c)at all other times and variations of the above as agreed in writing between the parents; and
(d)if X is not in the care of the father the father have telephone communication with X on her birthday at such time as may be agreed between the parents in writing and failing agreement at 8.00am with the father to initiate the call to the mother’s mobile telephone number.
Changeovers
17.When changeovers do not occur at school:
(a)in 2022 at such venue as may be agreed in writing and failing agreement at McDonalds at Suburb E; and
(b)commencing 2023 at such venue as may be agreed in writing and failing agreement the mother collect X from the father’s usual residence at the commencement of the mother’s time and the father collect X from the mother’s usual residence at the conclusion of the mother’s time.
18.If either parent arranges for a family member or agent to attend changeovers which do not take place at school, they provide the other parent with no less than 24 hours’ notice in writing of the identity of that person, save for in the event of an emergency.
Education
19.The parents forthwith do all things and sign all documents to enrol X at D School to commence in term 1, 2022 and in the event the mother fails to sign all documents necessary to facilitate such enrolment then the father is at liberty to produce a copy of these orders to the school as evidence of his authority to unilaterally sign all documents as necessary to facilitate such enrolment and the father otherwise be at liberty to provide a copy of these orders to the school and any other school at which X may attend; and
The Court notes: This order does not prohibit the father from changing X’s school pursuant to the exercise of sole parental responsibility in relation to education.
20.Subject to orders 7(f) and (g) herein each parent be at liberty to attend X’s school for the purpose of volunteering their time at all times permitted for such activity by such school with the parent who will not have the care of X during the time of the event to advise the other in writing prior to the event of their intention to attend.
21.Subject to orders 7(f) and (g) each party be at liberty to attend all school related events including but not limited to school assemblies, sports day, concerts, presentations, parent teacher interviews, and all other events parents are normally invited to attend with the parent who will not have the care of X during the time of the event to advise the other in writing prior to the event of their intention to attend.
22.Each parent be permitted to obtain copies of all school notices including photograph order forms, or other school reports and any other communication from X’s school normally provided to parents and access any school portal.
Medical and allied services
23.The parents notify the other parent as soon as practicable of any significant illness, injury or accident or any emergency suffered by X and provide the other parent with the names and contact details of any medical or allied health professional treating X so that each parent may liaise with same.
24.In the event X is admitted to hospital for treatment each parent shall be entitled to visit her in accordance with the visitor protocols of the treating facility.
25.Each parent shall administer to X any medication that is prescribed or recommended for her.
26.The mother, her servants and agents, be and hereby restrained from engaging X in any medical, counselling or psychological treatment without the consent in writing of the father.
27.Each parent be at liberty to:
(a)obtain copies of the child’s medical, counselling, dental and health records; and
(b)consult with the child’s medical, counselling, dental and allied health practitioners.
Social Events and Extra-curricular Activities
28.The mother, her servants and agents, be and are hereby restrained from enrolling X in any extra-curricular activity except with the written consent of the father.
29.In the event X is invited to participate in any social or peer related events then the parent who received the invitation or notice shall ensure the other parent is provided with a copy of same within 24 hours of receipt of such invitation or notice and the parent who has the care of X at the time such event is to occur shall:
(a)determine if X is to participate in such event;
(b)RSVP to such event as required by the invitation/notice;
(c)provide all necessary items including but not limited to any gifts to enable X to attend the event; and
(d)in the event the parent that has the care of X at the time the event is to occur consents to her attending same but is unable to physically facilitate her attendance they shall notify the other parent and offer them the opportunity to facilitate her attendance.
Residential and contact details/Communication
30.Each parent keep the other informed of their current residential address, their landline and mobile telephone numbers and their email addresses, and shall advise the other no less than 24 hours prior to any change.
31.The parents communicate with each other in relation to X’s care, welfare and development by email unless otherwise agreed in writing between the parents, other than in an emergency.
Restraints
32.The parents, their servants and agents, be and are hereby restrained from:
(a)discussing these proceedings or any associated proceedings with or in the presence or hearing of X;
(b)showing any documents in these proceedings to X; and
(c)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent to X, or in her presence, or within her hearing, and from permitting any other person to do so.
THE COURT NOTES this order does not prohibit the father his servants and agents from discussing with X any matter arising from the proceedings to assist in the implementation and facilitation of these orders.
33.The mother, her servants and agents, be and are hereby restrained from posting on any social media platform:
(a)any photographs or videos of X;
(b)any correspondence passing between the parents;
(c)any court documents in these proceedings; and
(d)any narrative about these proceedings.
Provision of documents to other bodies
34.The father be at liberty to provide a copy of these orders to any school at which X may attend.
35.The father be at liberty to provide a copy of all family reports and this order and reasons to any medical, allied or mental health professional treating X.
36.The father and mother be at liberty to provide a copy of all family reports and this order and these reasons to:
(a)Any mental health practitioner with whom they may engage to assist them personally;
(b)any Court seized of proceedings in relation to family violence between the mother and father;
(c)Victoria Police; and
(d)The Department of Families, Fairness and Housing.
Travel
37.In the event either parent intends to travel with X outside the Commonwealth of Australia, they shall (save and except for in an emergency):
(a)not less than 60 days prior to the intended date of departure notify the other parent in writing as to:
(i)the country/countries to which X will travel and with whom X will travel;
(ii)the airlines upon which X will travel;
(iii)the day upon which X will depart from and return to the Commonwealth of Australia; and
(iv)provide to the other parent a detailed itinerary including copy of airline, train, ship tickets, accommodation details, telephone numbers, such numbers to include the landline of any accommodation whether they are staying, as well as any different mobile number they may use whilst outside the Commonwealth of Australia;
(b)in the event of any change to the itinerary provided by the travelling parent to the non-travelling parent prior to or after departure, the travelling parent shall advise the non-travelling parent forthwith of such change including any change of mobile numbers during their period outside the Commonwealth of Australia.
38.In the event either parent intends to travel with X outside the State of Victoria, they shall (save and except for in an emergency):
(a)not less than 30 days prior to the intended date of departure notify the non-travelling parent in writing as to:
(i)the state/states to which X will travel and with whom X will travel;
(ii)details of how X will travel i.e. airline, car, train etc;
(iii)the day upon which X will depart from and return to the State of Victoria; and
(iv)provide to the non-travelling parent a detailed itinerary such as a copy of airline, train, ship tickets, accommodation details, telephone numbers including landline phone number of any accommodation where they are staying;
(b)in the event of any change to the itinerary provided by the travelling parent to the non-travelling parent prior to or after departure, the travelling parent shall advise the non-travelling parent forthwith of such change.
39.Unless otherwise agreed between the parents, the father shall retain X’s passport and shall ensure her passport is made available to the mother to facilitate overseas travel not less than 30 days prior to departure save where a passport is required for the purposes of obtaining visas or other travel requirements then the passports shall be released to enable the obtaining of such visas or other travel requirements. The mother shall return X’s passports to the father within seven days of X’s return to Australia.
40.The parents do all acts and things to ensure that X has a valid passport at all times and shall make the necessary application to renew the passports six months prior to them expiring with the costs of same to be shared equally between the parties.
41.Pursuant to section 68Q of the Family Law Act 1975 (Cth), insofar as these orders are inconsistent with any family violence order, these orders shall prevail.
DIRECTIONS
42.The Registrar of the Federal Circuit and Family Court of Australia provide a copy these orders to the Registrar of the Magistrates’ Court of Victoria.
43.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out herein and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYMAL
The applicant father and respondent mother require a determination from the Court in relation to the parenting arrangements for their daughter X. X, referred to as X, will turn 6 years of age in 2022. She will be commencing her primary school education in 2022. At the time of the hearing she was attending both of F Kindergarten and long day care facilities on different days of the week.
X lives with the mother. She spends time with the father, albeit with some difficulty. She has done so since the parents separated on 20 June 2019 when X had recently turned 3 years of age. X at such a young age has spent nigh on half of her life being caught in the middle of her parents’ conflict.
The central issues for determination which arose from the hearing are which parent is best able to promote and maintain X having a meaningful relationship with both of her parents and what risks, if any, each parent pose to X. Once these findings are made the resolution of the following issues flows: whether final or interim orders should be made; whether there be an order for equal or sole parental responsibility; with which parent X should live; time with the non-resident parent, at which school X should attend; and consequential and ancillary orders. This also dictates whether final or interim orders should be made.
For the following reasons I am satisfied final orders should be made and there is a risk to X if she remains living with the mother. In my view unless there is a change of X’s residence to the father, the mother will continue to thwart, if not entirely cease, X’s relationship with him. From what I have read, seen and been told of X she deserves the best opportunity of having both of her parents involved in her life in a meaningful way.
Accordingly, orders are made providing for:
(a)the father to have sole parental responsibility for X;
(b)X to live with the father;
(c)after a suspension of physical face to face time between the mother and X, she spend time with the mother for four nights during school terms, half school holidays and on special occasions;
(d)X to attend D School; and
(e)a suite of ancillary and consequential orders.
I have no doubt the mother will be severely disappointed with the Court’s determination. However notwithstanding the anticipated emotional impact on the mother, the Court is required to make proper parenting orders with the best interests of the child being the paramount consideration.
The manner in which the mother reacts to these orders will be a true test of whether she has absorbed and appreciated the detrimental impact her views of the father and her consequential behaviour has on X and whether she can consistently act in X’s best interests. It remains the mother’s decision whether she engages with an experienced therapist to address the deficiencies with her parenting occasioned by her views of the father or for any other reasons.
THE PROPOSALS
The operative live with and spend time orders at the time of the hearing are the interim orders made on 16 June 2020 (the 16 June 2020 orders) which include, noting there was a progression of time from the date of the 16 June 2020 orders to that in (c) below.
(a)the parents have equal shared parental responsibility for X (by consent);
(b)X live with the mother (by consent);
(c)commencing 15 March 2021 X spend time with the father for four nights each fortnight in week one from the conclusion of day care/kinder on Thursday until the conclusion of day care/kinder or 4.00pm on Friday and in week two from the conclusion of day care/kinder on Friday until the conclusion of day care/kinder or 4.00pm on Monday (not by consent); and
(d)changeovers when not at day care /kinder take place on all other occasions, including special occasions and school holidays, with the father collecting X at C Restaurant at Suburb G at the commencement of his time and the mother collecting X at the front of the father’s residence at the conclusion of his time (not by consent).
Order 2.4 of the 16 June 2020 orders, made by consent, provides for X to spend time with the father prior to her commencing school during the Victorian gazetted public school holiday period at the conclusion of term 4 for two blocks of five nights in January as agreed by the parties in writing and failing agreement from 1 January to 6 January and from 24 January to 29 January (by consent).
The initial proposals of the parties changed at the conclusion of the evidence and also during closing submissions.
At the commencement of the hearing the father sought that:
(a)the parents have equal shared parental responsibility for X;
(b)X live with the father;
(c)X spend time with the mother:
(i)during school terms for five nights per fortnight being from Thursday to Monday in week one and from Thursday to Friday in week two;
(ii)half of all school holidays;
(iii)special occasions;
(iv)telephone communication with the mother on Saturday and Tuesday between 6.00pm and 7.00pm;
(v)changeovers when not at school take place with the mother collecting X from the father’s home at the commencement of the mother’s time and the father collecting X from the mother’s home at the conclusion of the mother’s time;
(d)X attend D School to commence prep in 2022;
(e)provision of Family Law documents to the Magistrates’ Court, Victoria Police and Department of Families, Fairness and Housing (DFFH); and
(f)a suite of consequential and ancillary orders.[1]
[1] Father’s outline of case filed on 18 June 2021.
At the commencement of the father’s closing submissions he sought different final orders and also interim orders.[2] He sought interim orders including the provision of documents to X’s health practitioners, education facilities, the Magistrates’ Court, Victoria Police and DFFH.
[2] Minute of orders proposed by applicant father dated 23 June 2021.
The final orders the father seeks in relation to X’s care arrangements, in summary, are:
(a)the father have sole parental responsibility for X in relation to health and education with an obligation to obtain the mother’s views;
(b)X live with the father;
(c)there be a suspension of face to face time between X and the mother for three months but that during such time X communicate with the mother by telephone on two occasions per week;
(d)after three months X spend six weeks of supervised time with the mother at a Contact Service;
(e)after six weeks of supervised time between X and the mother time progress from two overnights per fortnight to five overnights per fortnight first in a two week cycle as from term 1, 2023 and then in a five consecutive night block as from term 1, 2024, a progression of nights during school holidays and on special occasions;
(f)changeovers when not at school take place with the mother collecting X from the father’s home at the commencement of the mother’s time and the father collecting X from the mother’s home at the conclusion of the mother’s time;
(g)X attend D School, and
(h)a suite of ancillary and consequential orders.
Proposed order five of the father’s amended proposal became controversial during closing submissions. Proposed order five provides for the following before time moves to unsupervised time:
5The mother’s time with the child pursuant to paragraphs 4.3 to 4.9 be and is conditional upon:
5.1the Mother attending upon [Dr H], [Dr J] or some other clinical psychologist as nominated by the Father and undertaking a psychological and risk assessment at her expense;
5.2 providing such report to the Father;
5.3such report identifying that the Mother's mental health does not adversely impact on her capacity to care for the Child, with such report to consider:
5.3.1whether the mother suffers from any psychological impairment or condition;
5.3.2whether such diagnosis, if any, impacts on her ability to provide care to the Child; and/or
5.3.3 whether any diagnosis places the Child at risk in her care.
I expressed my reservations to the parties in relation to order five in light of the decision of Oberlin & Infeld [2021] FamCAFC 66. I held reservations in relation to the Court abrogating its responsibility to a clinical psychologist for time to move to unsupervised time, preserving the mother and father’s right to verify the reliability of the report and that the ambit of the report as described was ill-defined.
At the commencement of the hearing the mother proposed that:
(a)the mother have sole parental responsibility for medical care and education;
(b)X live with the mother;
(c)X spend time with the father:
(i)during school terms in a fortnightly cycle from Friday to Monday;
(ii)for school holidays, from 14 January to 20 January (being six consecutive nights) and for five consecutive nights during the July school holidays; and
(iii)on special occasions;
(d)changeovers that do not take place at childcare, kindergarten or school occur at Y Contact Service in Suburb B or a contact centre within 10 kilometres of X’s principal place of residence;
(e)X attend upon a psychologist; and
(f)a suite of ancillary and consequential orders.[3]
[3] Mother’s outline of case filed on 20 June 2021.
This initial proposal of the mother was to reduce X’s time with the father to three nights per fortnight from what X is enjoying pursuant to the 16 June 2020 orders, and provide for limited school holiday time.
At the commencement of closing submissions I was concerned the mother and her solicitor had not grasped the significance of the father’s amended final proposal or his initial proposal. I had formed the impression during the running of the hearing that the issues the mother’s solicitor emphasised during cross-examination of the father and Ms L did not properly challenge the father’s initial proposal. It is my view the mother’s solicitor had not given weighty consideration to the very real possibility of the Court changing X’s primary caregiver. I was also not confident the mother fully appreciated there may be a real risk to there being a significant change to X’s living arrangements and not necessarily in the mother’s favour. I stressed to the mother’s solicitor that I required fulsome and wholesome submissions from him as to why, on the basis of Ms L’s evidence and the mother’s evidence, the Court should not accede to the father’s proposal given that it was my view the “mother had an extremely entrenched view of the father’s role in [X’s] life”.[4]
[4] Transcript of 23 June 2021 at [146].
I therefore stood the matter down before closing submissions commenced so the mother and her solicitor could further discuss the import of the father’s amended proposal.
Court resumed and Counsel for the father made her closing submissions. The mother’s solicitor commenced and concluded his closing submissions. They were brief. He maintained the Court should make the orders the mother proposed as at the commencement of the proceedings. I still held a concern the mother and her solicitor had still not grasped the gravity of the case and again stood the matter down for the mother and her solicitor to further consider the matter.
When Court resumed again the mother had changed her position to the parents having equal shared parental responsibility, that X live with her and X continue spending time with the father during school terms in accordance with the 16 June 2020 orders. Her position in relation to school holiday time of six nights during January and five nights during July remained.
I still maintained my concern the mother and her solicitor had not adequately addressed the issues of supervised time, progression of time and order five of the father’s proposed minute and I again pressed the mother’s solicitor on these issues. The mother’s solicitor, in response, suggested that the “psychological evaluation be part of the – a condition of (the mother) maintaining primary care” and “if she’s maintaining primary care of the child with the assistance of a psychological and an evaluation, and that might ease the concerns of your Honour”.[5]
[5] Ibid at [166].
Yet again I stood the matter down until after the luncheon adjournment. Upon Court resuming the mother’s solicitor proposed the mother’s mental health be assessed and the trial be adjourned part heard. Thereupon Counsel for the father raised that if the trial was to be adjourned part heard she “would almost be having to press for an interim change of residence given the concerns that have been expressed”.[6]
[6] Ibid at [172].
Another way forward proposed by Counsel for the father was to make final orders for sole parental responsibility to the father, X live with the father, limited interim orders about time with the mother, the psychological assessment of the mother ensue and then the matter be relisted for a one day hearing only on the time X is to spend with the mother. However, it is clear in my view that that this option was not an alternative proposal of the father but rather a suggestion put forward to remedy the difficulties raised by the Court with order five of the father’s proposed minute.
In the result I reserved my decision and made the following interim orders:
(a)The orders of 22 June 2021 be discharged.
(b)Until further order, the mother and father, their servants and agents, be and are hereby restrained from posting any photographs or videos of X on any social media platform.
(c)Until further order, the mother and father, their servants and agents, be and are hereby restrained from posting any Our Family Wizard messages between them on any social media platform.
(d)Until further order, the father be at liberty to attend and observe X at her sports lessons on a Wednesday afternoon at the M Centre at Suburb B.
(e)Pursuant to section 68Q of the Family Law Act 1975, insofar as these orders are inconsistent with any family violence order, these orders shall prevail.
(f)The mother and father do all such acts and things and sign all such enrolment documents to facilitate X commencing school in 2022 and the mother and father be at liberty to select up to 3 schools each.
(g)Each party be at liberty to provide a copy of these orders and Ms L’s report of 22 May 2021 to:
(i)the child's health practitioners; and
(ii)such schools and/or kindergarten/childcare providers as the child may attend from time to time.
(h)The Registrar of the Federal Circuit Court of Australia, Melbourne Registry, shall send a sealed copy of these Orders and Ms L’s report of 22 May 2021 to;
(i)The Registrar of the Magistrates Court of Victoria at Suburb N;
(ii)The Commissioner of Victoria Police; and
(iii)The Department of Families, Fairness and Housing, child protection service.
(i)The father have leave to provide copies of all affidavit material filed by and on behalf of the parties in these proceedings to the Magistrates Court of Victoria at Suburb N.
(j)The father be at liberty to forward a sealed copy of these orders to the Registrar of the Magistrates’ Court at Suburb N.
(k)Judgment is reserved.
On 25 June 2021 the mother’s solicitor forwarded to Chambers by email the alternatives of the interim and final orders the mother seeks.
On an interim order basis she seeks a report be prepared for the Court assessing whether the mother’s mental health adversely impacts on her capacity to care for X with such report to consider:
(a)whether the mother suffers any psychological impairment or condition;
(b)whether such diagnosis, if any, impacts on her ability to provide care to X; and/or
(c)whether any diagnosis places X at risk in her care.
The final orders the mother seeks are:
(a)the parties have equal shared parental responsibility for X;
(b)X live with the mother;
(c)X spend time with the father:
(i)during school terms in a fortnightly cycle from Thursday to Friday in week one and from Friday to Monday in week two;
(ii)for school holidays from 14 January to 20 January (being six consecutive nights) and for five consecutive nights during the July school holidays; and
(iii)on special occasions;
(d)X attend F School; and
(e)unless otherwise agreed, the parties engage in mediation 12 months prior to X’s commencement of high school to select a suitable high school for X to attend and that is within proximity to the mother’s place of residence.
In all other respects the mother’s amended proposed orders mirror the proposed orders she initially sought.
It is not unusual for parents to alter their proposals after they hear the other parent examined and after expert evidence is given to the Court. I am satisfied the change in the father’s proposal was genuinely made, guided by the expert evidence and influenced by the presentation of the mother whilst she gave evidence and observed the proceedings.
However I am not satisfied the change in the mother’s proposal was genuinely made. I doubt the mother held any real conviction that the Court should make orders in the terms of her amended proposal. I also doubt that she accepted that the care arrangements provided for therein had any merit in being in X’s best interests. In my view the mother’s amended proposal was merely an attempt to preserve her status as primary carer. The mother clearly took no comfort in the making of her amended proposal.
The mother’s change of proposal at the eleventh hour was disingenuous and in my view made as a consequence of my continual prompting of her solicitor to confront the serious implications to her if the Court acceded to making the orders sought by the father. The mother must have ultimately, to some extent, realised the real risk of X’s primary carer changing. I do not accept in the face of the proximity of her evidence and the making of her amended proposal that the mother had any form of epiphany in relation to the benefit to X having a meaningful relationship with her father or that she should, in X’s best interests, amend her ways.
PRIOR TO THE FINAL HEARING
The father is 40 years of age and is a professional.
The mother is also 40 years of age and is a professional. At the time of the hearing she was engaged full time in home duties.
The parents commenced living together in 2003, married in 2008 and separated on 20 June 2019. At the time of separation the family was living in Suburb O. Upon separation the mother and X moved to Suburb B and lived with the maternal grandparents.[7] She is now in her rental accommodation in Suburb B which is in close proximity to the maternal grandparents’ home.
[7] Mother’s affidavit filed on 14 December 2020 at [6].
After the sale of the family home the father moved to Suburb P. In order to be closer to X and the mother and with the dual consideration of his work commitments, he ultimately moved to Suburb Q in early 2021 where he still lives.
The parents depose in their affidavits to the circumstances and nature of their pre-separation life together. This time frame of the parents’ conduct and traits was not a feature of the hearing. Suffice to say each parent brings their own perspective and memories of that period they were together. More important to X’s future care arrangement are the events and attitudes of the parents after their separation. Within the context of current parental capacity and attitudes any findings made in relation to matters before separation in my view would not alter the determination of the Court.
The mother did not allow the father to see X until some six weeks after the parents had separated despite numerous requests from the father to do so. In 2019, the day after the father’s birthday, X spent five hours with the father.[8]
[8] Father’s affidavit filed on 10 June 2021 at [35].
Unfortunately, whilst at times one parent in the early stages of a separation restricts time between a child and the other parent, such conduct by the mother has persisted. This was the beginning of the mother’s practice to minimise if not exclude the father from a meaningful involvement in X’s life.
From mid July 2020 X began spending time with the father in a two week cycle from 5.00pm Friday to 5.00pm Saturday in week one and from 5.00pm Saturday to 5.00pm Sunday in week two.
On 26 February 2020 final property orders were made by consent.
On 25 February 2020 the father filed his initiating application commencing these proceedings. The mother filed her response on 1 April 2020.
Prior to the first return date of the father’s application the parents jointly engaged Ms L, psychologist, to prepare a family report (the first family report). The first family report was available for the return date of the father’s application on 16 June 2020.
Ms L’s recommendations included that when X is at least 8 years of age she could live in an equal shared care arrangement of alternate weeks and until then gradually increase her time with the father over nine months to alternate Wednesday to Thursday and alternate Friday to Monday but with an additional alternate evening time such as Wednesdays and when she commences primary school half of school holidays with each parent.[9]
[9] Family report dated 5 June 2020 at [184] – [186].
On 16 June 2020 I made the orders referred to in paragraph 8 of these reasons. Both parents were represented at this hearing, the mother by Senior Counsel and the father by Junior Counsel.
In October 2020 the mother applied for an in intervention order against the father. The mother was granted an interim order.
On 11 November 2020 the father filed an application in a case seeking the mother be restrained from changing X’s usual place of residence to a location more than 20 kilometres away from her current residence.
On 16 December 2020 I made an order requiring X to remain at and attend F Kindergarten at Suburb B.
The father did not spend time with X on some occasions in January 2021. On 25 February 2021 he filed a Contravention Application alleging breaches by the mother of failing to make X available on 1 January 2021, 22 January 2021 and 24 January 2021 pursuant to the 16 June 2020 orders.
On 30 March 2021 the mother filed an application in a case seeking a suspension of the 16 June 2020 orders and in lieu thereof X spend time with the father on two days each fortnight being from 9.00am to 5.00pm on consecutive Saturdays and Sundays.
The father did not spend time with X in late March and early April 2021. On 14 April 2021 the father filed his second contravention application alleging breaches by the mother of failing to make X available on 26 March 2021, 1 April 2021 and 9 April 2021.
On 16 April 2021 a Senior Registrar, as they were then referred, ordered the 16 June 2020 orders continue in full force and effect and that week one recommence on 29 April 2021 and week two recommence on 23 April 2021. The mother represented herself at this hearing. The maternal grandfather accompanied her. The father was legally represented. The conduct and attitude of the mother must have been similar to that which she presented to me during the final hearing which no doubt led to the Senior Registrar commenting “I’m not surprised your child is constipated. The way you talk about him… Your child is living in a warzone,” and “your attitude to the father is extraordinarily poor”.[10]
[10] Father’s affidavit filed on 10 June 2021 at [98].
On 22 April 2021 the parents and X attended upon Ms L for an updated family report. Ms L’s recommendations included that when X is nearly 8 years of age and the parents parenting relationship is effective she live with the mother and father in an equal shared care arrangement of alternate weeks; to commence immediately and continue until X commences grade one she spend time with the father on alternate Friday to Monday and alternate Wednesday to Friday and an alternate Wednesday or Thursday after school; half school holidays or week about to commence the term two school holidays in 2021; when X commences grade one in 2023 time be extended from alternate Thursday to Monday and alternate Wednesday to Friday along with alternate Wednesday or Thursday after school; X communicate with the non-resident parent as she might choose but on a regular basis and at least on two occasions or even daily during each time period: and that the parents equally be involved in addressing X’s developmental and welfare such as health issues.
THE HEARING
The father was represented by Counsel. The mother was represented by her solicitor.
The father initially sought to have his contravention applications filed 25 February 2021 and 14 April 2021 proceed concurrently with the substantive parenting matter. Quite sensibly in the Court’s view the father sought leave to withdraw both applications. I granted such leave.
The father relies on his amended application filed 20 April 2021 and his affidavit filed 10 June 2021. He also relies on Ms L’s affidavit filed on 15 June 2020 annexing her family report dated 5 June 2020 and Ms L’s affidavit filed 24 May 2021 annexing her family report dated 22 May 2021. The father filed an outline of case document on 18 June 2021.
The father tendered three exhibits as follows:
(a)F1: being the father’s objections to evidence in the mother’s trial affidavit;
(b)F2: being the Facebook post made by the mother including a video taken by the mother of X in the car received by the father in mid-April 2021; and
(c)F3: being a video taken by the father of X talking to the camera.
The mother relies on her amended response and her affidavit both filed on 15 June 2021. The mother filed a case outline on 20 June 2021. Whilst the case outline refers to the mother intending to rely on Ms L’s updated family report it is patently obvious the mother does not accept anything in that report that is critical of her and questions the integrity of the report.
The mother also filed a notice of risk on the morning of the trial. The mother at the commencement of the hearing contemplated seeking an adjournment on the basis of her notice of risk giving indications that she wished DFFH to deal with it prior to the trial commencing. In the result she did not proceed with an adjournment application.
When the matter was stood down whilst the Court dealt with other listed matters the solicitor for the mother consented to all 106 objections made to the evidence in the mother’s trial affidavit.
On 22 June 2021, the second day of the hearing and, as a result of my viewing of the shocking contents of Exhibit F2, I immediately made orders restraining the mother and father from posting photographs or videos of X and any Our Family Wizard messages on any social media platform. I also made an order enabling the mother and father to procure enrolments for X at up to three schools each. Whilst the father was decisive in relation to his choice of school being D School the mother had not yet made up her mind as to which school X should attend save that she was adamant that it should not be D School.
On 23 June 2021, the third day of the hearing, I discharged the orders made on 22 June 2021 and made the interim orders referred to in paragraph 25 of these reasons. The mother did not oppose the making of these orders.
On 22 November 2021 the matter came back before me to determine the mother’s application in a proceeding filed on 12 November 2021 to adduce further evidence.
My orders of 22 November 2021 provided for paragraph 10 and annexure “01” of the mother’s affidavit filed on 12 November 2021 to be admitted into evidence. This was with the consent of the father.
The evidence in paragraph 10 confirms X has been accepted at F School. At the time of the trial X’s ability to attend F School was in doubt as it appeared the mother’s residence was not within the zoning of the school allowing for enrolments.
The father by way of his response to the mother’s application in a proceeding also sought to adduce further evidence. The evidence admitted, with the consent of the mother, are paragraphs 9 – 12 inclusive of the father’s affidavit filed on 19 November 2021. These paragraphs reveal the mother filed an application in a proceeding on 12 September 2021 seeking to change the changeover location provided for in the 16 June 2020 orders to Suburb B police station. The paragraphs also disclose the orders the Senior Judicial Registrar made on 22 October 2021.
The Senior Judicial Registrar’s orders included:
(a)changeovers when not at day care or school take place at McDonalds at Suburb E in the line of sight of the CCTV cameras and in full view of the front counter staff;
(b)the father’s time with X be immediately reinstated (on the basis that the mother withheld X from the father between 14 October and 22 October); and
(c)each party be restrained from filing any further Applications in a Proceeding without first seeking leave from the Court.
Paragraph 12 of the of the father’s affidavit sets out the contents of an email received from DFFH sent to the Court at the request of the Senior Judicial Registrar to clarify assertions made by the mother in her affidavit material.
The DFFH email records there is no current child protection involvement with X. The last report they received was on 23 September 2021 wherein the reported concerns were:
•[X] suffers anxiety and constipation associated with fear of her father;
•[X]’s father struggles with alcohol abuse, however, denies this.
•[X]’s father is hitting her – [X] has reportedly told her mother that her father has punched her in the tummy, hips and yells at her if she takes too much time to do things such as go to the toilet.
•No marks or injuries to [X] observed.
•When spending time with her father, if [X] becomes distressed, her father will not permit her to return home to her mother.
•[X]’s mother is engaging herself and [X] family violence counselling.
The email records:
(a)DFFH made appropriate inquiries. Victoria police indicated they would take no further action;
(b)on 15 October 2021 the mother contacted DFFH and expressed concerns consistent with those reported above. The mother further advised the father makes derogatory remarks about her and the maternal family and as a result X makes comments about her father hating the mother and saying that she is a bad mother. She also alleged the father has been instructing X to say that her mother hits her and advised of a regression in X’s toileting and described X is anxious to which a GP provides support;
(c)on 15 October 2021 DFFH made contact with F Kindergarten. The Centre indicated awareness of the parenting dispute but had not identified any concerns with regards to X’s behaviour or development. The Centre advised X had not made any disclosures of abuse and described X as displaying some separation anxiety from her mother and had been working with both parents at mitigating this;
(d)X’s father is responsive to staff suggestions however X’s mother felt that X requires her support. The Centre had observed warm interactions between X and the father, X appears excited to see him and expresses this to staff;
(e)the file was closed on 21 October 221 at the intake phase, it did not progress to a Child Protection investigation;
(f)there have been seven prior reports to Child Protection between November 2019 and June 2021. All seven reports had been closed at the intake phase;
(g)there have been previous allegations regarding the father harming X with file records querying the role of the mother’s anxiety.
The Court is not required to refer to every piece of evidence relied upon by the parties, traverse every argument that is advanced or make findings in relation to all of the facts that are put in issue by them. I have read all of the documents relied upon and taken all of the evidence and submissions into account. Findings are made on the balance of probabilities. My observations of the demeanour of the parties while giving evidence and observing the proceedings have assisted my assessment of the evidence in determining the matter.
MS L
Ms L is a well-respected and oft used psychologist on a privately funded basis for the preparation of family reports. She is also engaged as a family consultant by the Court for the preparation of such reports. Ms L prepared two reports and gave evidence via Microsoft Teams. Her qualifications were not challenged.
The length of the mother’s solicitor’s cross-examination of Ms L was surprising given the content of her reports, her oral evidence and in light of the criticisms and complaints the mother makes of Ms L’s report in her case outline, her affidavit and in her oral evidence. The transcript reveals that his cross-examination of Ms L occurred between 3.30pm and 3.37pm, some 7 minutes.[11] The mother’s solicitor did not cross-examine Ms L on any of the mother’s complaints. I do not propose to traverse those challenges and complaints. To do so would require me inferring or speculating what Ms L’s responses may have been. There is no evidence before the Court on which it can rely to accept the mother’s challenges and complaints and in any way derogate from the professional, independent and expert evidence of Ms L.
[11] Transcript of 22 June 2021 at [139] – [140].
The mother told the Court she did not finish reading the updated report and she was unaware that equal shared care was recommended. Plainly the mother is not attracted to considering any view point other than her own as to the best parenting of X. The non-reading of the report supports my view that the mother has an unfailing belief that only she is right when it comes to the parenting of X.
The first family report
Ms L’s first family report is dated 5 June 2020. In person interviews and observations were conducted on 2 April 2020.
Ms L observed the mother presented as still considerably reactive about Mr Eccleston, to the extent that she referred to herself as X’s sole parent. The mother said “I’m so angry with Mr Eccleston…you don’t have a child and work all the time…there’s no point in co‑parenting…X has become my child now; she is no longer ours”.[12]
[12] Family report dated 5 June 2020 at [59].
The mother also presented to Ms L with a limited level of insight into the impact of her negative views of the father on X and on her empowerment of X and her stories.[13]
[13] Ibid at [70].
Ms L said of the mother that she is:
…overall a competent parent, mindful of the obligations and responsibilities of parenting. She also presents with the ability to provide for [X]’s welfare, development and safety when she is in her care. She has demonstrated commitment to providing for the child’s development.
However, as noted above, [Ms Eccleston]’s reactivity to [Mr Eccleston] can compromise her capacity to not only support [X]’s relationship with her father, but also compromise her understanding of [X]’s developmental capacity and needs. In according so much weight to [X]’s stories about [Mr Eccleston], [Ms Eccleston] is not only emotionally mis attuned to [X]’s need for emotional containment and emotional leadership, she is also allowing [X] to experience anxiety about her mother’s emotional reliability and anxiety about moving between her parents.[14]
[14] Ibid at [136] – [137].
Ms L noted the mother’s reactivity to the father needed to be addressed with ongoing psychological therapy with a professional with expertise and experience in separation related therapy. She said “the risk to [X’s] development and her relationship with her father is high if [Ms Eccleston] continues to minimise his parental role”. (emphasis added) Ms L recommended therapy for at least 12 months,[15] and nominated three psychologists, one being Ms R.[16]
[15] Ibid at [191].
[16] Ibid at [143].
Ms L said of the father that he:
…presents as a competent parent, mindful of his parenting obligations. He presents as attuned to the emotional needs of [X] and responsive to her psychological developmental tasks. He demonstrates the capacity, will and motivation as a caregiver to provide for [X]’s development, welfare and safety.
While [Mr Eccleston] acknowledges his ambivalence about parenthood, more than [Ms Eccleston], he presents as having resolved this conflict and achieved a ‘parenting mind’ where he can be consistently attuned to [X]’s needs for safety and security and support [X]’s relationship with her mother.[17]
[17] Ibid at [146] – [147].
Ms L recommended the father attend time limited psychological therapy to address the unresolved aspects of the relationship with the mother and of his role in the dysfunction of that relationship.[18]
[18] Ibid at [148].
Ms L also recommended the parents undertake joint parenting therapy with an educational component to assist them in appreciating and communicating about X’s needs.[19]
[19] Ibid at [145].
X was not formally interviewed by Ms L. Ms L observed X as healthy, well cared for, with a bubbly personality and presenting with strong language and sound physical mobility.[20] Ms L said of X:
While overall [X] is emotionally developing at standard, her exposure to the parents’ conflict following separation particularly, has put her at risk of ongoing anxiety about separation from either parent, anxiety that will compromise her capacity to meet the developmental tasks of learning, socialisation and self-regulation (emphasis added).
[X] is at a vulnerable developmental stage where she must acquire the skills of finding emotional protection from stress, managing anxiety and learning to build relationships with people other than her parents. The optimum environment for children to acquire these psychosocial skills when parents have separated is for the caregiving system to be emotionally stable, reliable and supportive of both parents’ relationship with the child.[21]
[20] Ibid at [115] – [116].
[21] Ibid at [152] – [153].
Ms L said X’s overall sound development and strong relationships with both parents made it apparent that the protective factors in the caregiving system outweighs the risks.[22]
[22] Ibid at [111].
She was of the opinion that X had an emotionally secure and facilitative relationship with both parents despite the ongoing parental conflict.[23] She observed positive interactions between X and each of her parents.
[23] Ibid at [132].
The updated family report
The updated family report is dated 22 May 2021. In person interviews and observations were conducted on 22 April 2021.
At the time of this report X had not spent time with the father for four weeks as a consequence of the unilateral withholding by the mother on the ground of recently initiated medical treatment of bowel retraining. Ms L describes the reunion as “emotional” and that the father remained calm and warmly focussed on her.[24]
[24] Family report dated 22 May 2021 at [89].
The mother told Ms L X continues to tell her the father “yells and hits” her and that she notified Child Protection on three occasions on the basis of X’s claims.[25] She asserts “that [Mr Eccleston] continues to use violence against her in the form of controlling and manipulative communication”.[26]
[25] Ibid at [71].
[26] Ibid at [67].
The father was of the view that the mother labels communication in which he might disagree with her as family violence and that “she feels like I’m trying to control her”.[27] He denies he has used family violence. He raised the concern that Exhibit F2 and all that went into it as the mother behaving abusively toward X.[28]
[27] Ibid at [65].
[28] Ibid at [66].
The father again presented as a competent caregiver[29] with a “parenting mind” in that he remained focussed on the issues concerning X, discussed her needs and described appropriate parenting approaches.[30] Ms L was of the opinion that contrary to the mother’s view, X continues to have a strong and overall secure relationship with the father and that the father presents as consistently competent.[31]
[29] Ibid at [76].
[30] Ibid at [87].
[31] Ibid at [164].
The mother presented to Ms L on this occasion with more pronounced concerns in relation to her caregiving capacity.[32] She also presented with views about the father that seemed extreme and highly negative and spoke with contempt and anger about him.[33] The mother again demonstrated to Ms L a poor understanding of X’s emotional and cognitive capacity, reiterating she continues to believe X’s claims of ongoing physical and verbal abuse as factual.[34] The mother also demonstrated limited insight into the impact of her attitudes toward the father on X, and on her empowerment of X and her stories.[35]
[32] Ibid at [76].
[33] Ibid at [77] and [99].
[34] Ibid at [82].
[35] Ibid at [99].
Ms L described the mother to the Court as having a “very negative mindset” in relation to the father spending time with X.[36]
[36] Transcript of 22 June 2021 at [134].
In relation to X, Ms L said she presents with a level of increased anxiety about the mother.[37] She is overall is strongly attached to the mother but with emerging anxiety about her mother’s emotional reliability.[38]
[37] Family report dated 22 May 2021 at [94].
[38] Ibid at [137].
Ms L in her oral evidence expanded and explained the sources of that statement:
Firstly, the mother described [X] being worried about her when she was in poor health, and described the child as being – wanting to look after her and care for her which is relatively normal and expected, but then the child was also – in a video recording that I saw with mother talking to the child who was in the back seat of the car, the child demonstrated increasingly regressed behaviour in that she started to stumble over her words, and she seemed – seemed to have difficulty choosing words to the extent that she – she stopped talking at the end. So that, for me, indicates a level of anxiety about deciding what to say and how to say it to the mother when the mother asks – poses questions.
The other example was when – during the observations, and during the report appointment process for this updated report, the child – when – when the father had arrived in the waiting area – it’s a very large waiting area, and the child was sitting with the grandfather, and the mother and I returned from her individual interview into that waiting area. The child was – was looking like she wanted to run towards the father. She turned to the mother and started to ask anxiously if she could go and talk to her father. And her mother, of course, agreed – not “of course” but did agree, and the child ran absolutely delightedly and – and really quickly towards her father. In the observations for the updated report, the child was asking where the father was, and that indicates to me that the child is aware of – of the absence of the father, and how the mother might respond if she asks questions about the father.[39]
[39] Transcript of 22 June 2021 at [132] – [133].
Ms L told the Court she saw X as having a strong emotional/psychological bond with both parents. As to the anxiety X feels with her mother Ms L said ,
…you could talk about “enmeshed” in terms of emotional fusion, and wanting to please a parent in a – in a somewhat dysfunctional way. The difference between how the child interacted with the father, and the reports of how the child interacts with the mother is that the father followed the child in conversation. He didn’t lead her, and he was able to help her follow through in her play which is exactly what nearly five year old children need in – in parents, whereas I – I didn’t see that as strongly in the observation with the mother. But the reports that I – I have read, and the observation of the videotape indicate to me that the child was – was really trying to find a way to please the mother.[40]
[40] Ibid at [136].
Unlike what Ms L noted in her first report that X’s overall development had not been compromised given the facilitative relationship with both parents,[41] she now said “…some twelve months later, with the parental dispute escalating rather than abating, and [Ms Eccleston] unilaterally determining that only she could effectively implement the retraining program recommended by [X’s] treating medical practitioners, it is apparent that the key risk factor for [X’s] development and welfare is parental capacity, particularly that of [Ms Eccleston] (emphasis added).[42] X’s emotional wellbeing is potentially at risk given the concerns raised by the father about the mother’s “alienation behaviour” as well as her depiction of X on social media.[43]
[41] Family report dated 22 May 2021 at [143].
[42] Ibid at [144].
[43] Ibid at [68].
Ms L was of the view that X continues to be at risk while the mother and father are in dispute. Developmental tasks of learning, socialisation and self-regulation will continue to be compromised while X experiences her parents’ caregiving as divided and anxiety filled.[44]
[44] Ibid at [159].
Ms L records that:
[X] is likely to be attuned to her parents conflictual relationship and if [Mr and Ms Eccleston] do not address this, symptoms of anxiety, story-telling and even aspects of toileting issues are likely to exacerbate, with a negative impact on [X]’s capacity to learn and to play.[45]
[45] Ibid at [133].
Ms L told the Court:
Counsel for the father: If a child feels like they can’t openly and freely have a relationship with a parent – sorry, I will take it back. Using this example, if [X] is living with her mum and feels as though she can’t openly and freely have a relationship with her father, ie, she can’t talk about him in positive terms, or say she wants to spend additional time with him, what type of long-term impact would that have, firstly, on the child’s emotional and psychological health and, second of all, on the relationship with the father?
[Ms L]:We – we have evidence from our research, your Honour, that a child who can feel psychologically, emotionally caught in the middle – which I perceive this child to feel – can find herself having to expend a lot of emotional resources in editing how she might talk about a parent with the other parent, and that – that compromises her capacity to have all of her emotional resources available for learning and for socialisation and for play, and the long-term impact can be very, very negative.
Counsel for the father: The – the impact on the child of the relationship with the father?
[Ms L]: Not only would the child continue to feel anxious about the mother and the mother’s attitude towards the father, but the child could easily take on some of the attitudes of the mother that the father is not competent, (emphasis added) or that he’s psychologically dangerous in some way or another. And that’s – that’s started to be indicated by some of the stories that [X] has – has been telling a number of people over this last 12 – 12 months/18 months since the first family report, about the father’s inappropriate use of discipline.[46]
[46] Transcript of 22 June 2021 at [133].
Ms L saw as protective factors for X:
(a)ongoing and reliable caregiving time with her father who presents as providing facilitative parenting;[47]
(b)X’s happy temperamental disposition which assists her in managing transitions between the parents;[48]
(c)a significant protective factor being that the mother and father achieve a more effective cooperative relationship. Until the mother can address her attitude towards father and to which ongoing individual psychotherapy would be recommended it is likely that X will experience anxiety and stress in moving between their household.[49]
[47] Family report dated 22 May 2021 at [127].
[48] Ibid at [128].
[49] Ibid at [130].
Ms L recommended a therapist familiar with the impact of high conflict separation would assist the mother such as Ms S who she said would not only support the mother but also challenge the mother to view the father more realistically.
During the course of the proceedings the mother disclosed that Ms S would not be an appropriate person. She had already attended upon Ms S for one session upon being referred by her solicitors. The mother told the Court the purpose she was sent there “was to get a feel for co-parenting. High conflict parenting – how to deal with the conflict between [Mr Eccleston] and I”.[50]
[50] Transcript of 22 June 2021 at [85].
At the time of the updated family report the father was seeking X live with him. Ms L would not support the father’s proposal that X live with him and spend quite limited time in the mother’s care. She said that “while it is clear that [Ms Eccleston] must address the issues of concern noted in this updated report, her overall parenting competence, [X’s] strong relationship with her and the child’s overall positive development with [Ms Eccleston] as the primary caregiver do not support such a reversal of caregiving arrangements”.[51] She continued, “just as [X] has been impacted by the extended separation from her father, she also negatively impacted by extended separation from her mother. Instead, the protective factor for [X] would be extended time in [Mr Eccleston’s] care in the context of still substantial time in [Ms Eccleston’s] care”.[52]
[51] Ibid at [175].
[52] Ibid at [176].
The mother told Ms L her preferred arrangement would be no overnight time between X and the father so that she could get on with the toileting. When she was pressed about ongoing arrangements the mother said “eventually, she could spend three night block like Thursday to Sunday each fortnight…It would be more comfortable for her…”[53]
[53] Family report dated 22 May 2021 at [63] and [64].
Ms L equally did not support the mother’s proposal for X to be in the father’s care for such limited time “for the reasons outlined in the first family report: the likelihood of increasing the child’s distress at separation from her father and thereby not only compromising this already facilitative relationship but also effecting [X’s] ability to learn and to manage her emotional development”.[54]
[54] Ibid at [177].
Ms L said “the health of [X’s] relationship with each parent will be fostered by block periods of time spent with each parent so that both [Mr and Ms Eccleston] can contribute to her developmental needs”.[55]
[55] Ibid at [170].
Ms L makes the recommendations set out in paragraph 53 herein. Importantly Ms L qualified her recommendations with “unless there is further information available that might indicate otherwise”.
The recommendations to see other professionals
The mother attended upon Ms R for a short period and the mother asserts Ms R referred her back to her previous psychologist.[56] The mother continues to attend upon her psychologist on a monthly basis however Ms L describes the outcomes as limited.[57]
[56] Ibid at [104].
[57] Ibid at [105].
The parents attended upon Mr T for joint family therapy on 22 July 2020 and 12 August 2020. On 7 September 2020 (exhibit F1) Mr T sent the parents a reporting letter.
The father deposes during the sessions the mother was angry with him, would cut him off, talk loudly over him, berate him and that she was primarily there for him to agree to X seeing a psychologist.[58] Given the contents of Mr T’s reporting letter, my observations of the mother and her continual criticism of the father during her evidence, I accept the father’s description.
[58] Father’s affidavit filed on 10 June 2021 at [175].
The father attended upon Mr U on about four occasions. The father deposes he will continue to attend upon Mr U. Mr U indicated he did not need the father to attend regularly.[59]
[59] Ibid at [173].
Ms L’s oral evidence
Initially during her oral evidence Ms L held some reservations about X moving into the primary care of the father particularly because of the strong relationship between X and the mother and said in relation to the mother “I can’t say ‘overall competence’ in parenting but 60% of very competent parenting, save the attitude towards the father”.(emphasis added)
Counsel for the mother asked Ms L to provide detail as to where the mother’s competencies lay. Ms L said “certainly in terms of physical care giving and the routines that she described that she has established for [X’s] care, and in the evidence that [X] is a well settled and capable child in the context of kindergarten and childcare. The mother talked to me about the conversations that she has with the child, particularly if the child says she’s afraid of her father and the mother said that she has changed her response to the child saying ‘well, you’ll be strong and I’ll be strong’ and given the intensity of the mother’s attitude towards the father that indicated to me that there are moments of quite insightful caregiving attitudes”.[60]
[60] Transcript of 22 June 2021 at [139].
The mother’s solicitor focussed on these elements in support of the mother retaining primary care. In my view there is much more at stake for X than preserving consistency in “routines”.
Furthermore in my view the insightful caregiving moments do not compensate for the non-insightful caregiving moments such as Exhibit F2, withholding X from the father during three blocks of time and not providing the father with important information about X.
Ms L said the father was slightly more competent than the mother given his attitude towards the mother. Ms L agreed that it was a factor to be taken into account if the Court found that the mother is simply not capable of facilitating and encouraging the relationship between X and the father.[61]
[61] Ibid at [135].
Ms L was provided with the information in relation to the parents’ attendances on Ms R, Ms S and Mr T. She “absolutely” agreed given the level of experts upon whom the mother has already consulted she would have expected to see the mother’s behaviour improve not worsen between the two family reports. She agreed all of the experts upon which the mother had attended were all highly regarded in the jurisdiction dealing with high conflict families. Ms L further agreed it did not bode well for the future change of the mother’s attitude given there has been no change to date and the high calibre of the experts that had been involved.
Ms L agreed with Counsel for the father:
(a)X’s relationship with the father is strong enough for her to be able to seek support and emotional comfort from him;
(b)if there was a change of residence the father has the capacity to be able to provide emotional support and comfort to X;
(c)in terms of X’s psychological and emotional well-being going forward and her being able to have a free relationship with both parents, the mother provides the greatest risk to that occurring; and
(d)X’s personality would help her cope with a change of residence together with a lot of additional support.
Ms L told the Court the father “would support X maintaining as – as good as possible – as possible a relationship with the mother.[62]
[62] Ibid at [140].
Ms L said:
A change of residence is never in the best interests of children on one level, your Honour. But given the events as they’ve transpired and – and the – and the parenting capacities as I’ve assessed them, I – I think, in many ways, the risk factors do not outweigh the protective factors if a change of residence was determined by the Court (emphasis added).[63]
[63] Ibid at [139].
In the result Ms L was of the view the father was a more competent parent than the mother given the impact on X of the mother’s attitude towards the father.[64]
[64] Ibid at [135].
Ms L’s rationale in her updated family report behind increasing X’s time with the father from four nights to five nights was “particularly to ensure that X had block periods of time with her father, and to support that relationship, and as somewhat of a protective factor from – from the mother’s attitude towards the father”.[65]
[65] Ibid at [139].
Ms L said if there was to be a change of residence an experienced therapist would need to be engaged with the father and X and assist them with X’s responses.[66] The father acknowledges that he would need support and input from professionals to assist with the transition of X into his primary care and her separation from the mother for extended periods of time.[67]
[66] Ibid at [138].
[67] Family report dated 22 May 2021 at [58].
Some of the changes in the parents’ proposals most likely emanated from Ms L’s comment that as she was preparing and reading the reports she had concerns about the mother’s mental health and she would support a psychiatric assessment.[68]
[68] Ibid at [138].
I enquired of Ms L if I was minded to change residence would it be advantageous to X to have a settling in period with the father. Ms L agreed and was of the view given X’s age and stage of development, her capacity to manage the separation and deal with the emotional fallout the period of time “would” be something like a school term. She also said it would be helpful for X to spend some cautious time with the mother and suggested supervised telephone calls.
THE FATHER
The father’s trial affidavit is 50 pages long with an additional 51 annexures. The father told the Court since swearing his affidavit he has been charged with breaching the interim intervention order which he was intending to contest and that the mother’s application for the intervention order had been listed on 12 August 2021 for two days. I am not aware of the outcome.
The Court was very surprised the mother’s solicitor’s cross examination of the father was so brief in circumstances where the parents’ initial proposals were so polarised. The transcript reveals the cross examination commenced at 2.29pm[69] and concluded at 2.34pm,[70] a total of 5 minutes, with the only questions asked being in relation to the issue of which school X should attend.
[69] Transcript of 21 June 2021 at [16].
[70] Ibid at [19].
However I doubt whether if a more thorough cross examination of the father had occurred my determination would differ given the remarkable presentation of the mother and her evidence.
Whilst I had little time to observe the father in the witness box, I nevertheless was able to view him at all times when the mother and Ms L gave evidence and during closing submissions.
At times during the mother’s evidence he became visibly upset. When the issue of Exhibit F2 was raised he became so distressed that I stood the matter down. It was a genuine and heartfelt reaction and no doubt the father felt much emotional pain observing his daughter being placed on display in such an unseemly way. At other times the father shook his head or dropped his head into the palms of his hands in disbelief and concern in relation to what the mother was saying. He never appeared angry in either his body language or facial expressions while the mother gave her evidence. I agree with Counsel for the father’s submission that “he is one of those rare clients that has a lot of empathy for the mother still”.[71]
[71] Transcript of 23 June 2021 at [147].
I propose to make an order that X attend D School. Any difficulties the mother may experience in collecting and delivering X to D School are overcome by the father’s offer to fund the school bus which travels directly between the homes of the students and the school.
The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
I am satisfied the evidence supports both parents have the capacity to provide for X’s practical needs. The father has a supportive workplace and has confirmed with him they will support whatever flexible working arrangement he needs to care for and support X.[157]
[157] Father’s affidavit filed on 10 June 2021 at [129].
I have no doubt both parents are able to support X intellectually.
I am also satisfied the evidence supports the father can well provide for X’s emotional needs but the mother cannot.
Ms L was of the view that if the attitude of the paternal grandfather and the mother permeated through to X the long term vision of X’s relationship with the father would be “certainly compromised and it’s going to take a lot of effort on the father’s part to sustain that bond that is already there”.
There is no doubt X is aware of the maternal grandfather’s view having regard to his conduct in Ms L’s waiting room. The maternal grandfather accompanied the mother and X to Ms L’s office for the purpose of interviews for the updated family report. Ms L records in the waiting area X attempted to run to the father who sat some distance away and the maternal grandfather attempted to restrain her, looking serious.[158] Nevertheless X “ran excitedly towards the father, exclaiming ‘Daddy! Daddy!’ throwing herself into his arms”.[159]
[158] Family report dated 22 May 2021 at [93].
[159] Ibid at [114].
The maternal grandfather also accompanied the mother to the hearing on 16 April 2021. When the Senior Registrar ordered time recommence immediately the maternal grandfather stood up in the body of the Court and wanted to challenge the Senior Registrar. The mother agrees the maternal grandfather was told to sit down and be quiet.[160] The maternal grandfather plainly does not think highly of the father and was disappointed with the outcome.
[160] Transcript of 21 June 2021 at [40].
The evidence of the mother supports she does not seek to curb the conduct of the maternal grandfather, sees any need to do so or appreciates that it should be contained for the benefit of X.
The maternal grandfather has been of the utmost support to the mother in the practical care of X. He no doubt supports X in all aspects of her emotional wellbeing but I am of the view he does not do so in relation to supporting her emotionally with her relationship with the father. X has to contend with reacting in a particular way in order to appease not only her mother but also her grandfather. I have no doubt X dearly loves her maternal grandparents.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The evidence supports the father has a positive attitude to X and the responsibilities of parenthood.
There is no doubt the mother deeply loves X and wants the best for her.
The mother has no ability to consider any viewpoint other than her own as being the correct one when it comes to what is in X’s best interests and how to parent her, particularly so in relation to her responsibility to properly care for X’s emotional needs and maintain her relationship with the father. The mother has shown a deficit in her attitude to parenting by her continual desire to minimise X’s time with the father notwithstanding she has had the benefit of Ms L’s opinions as early as June 2020.
The posting of Exhibit F2 by the mother on Facebook is extraordinary and the ultimate act of selfishness by the mother and exploitation by her of X. It is a very low bar of good parenting and the attitude to the responsibilities of parenthood, and a very high bar of bad parenting and the attitude to the responsibilities of parenthood. The same applies to the mother’s coaching of X and making her pose for the photographs.
It is now some three years since the parties separated and I saw no hint of the mother in the short term or middle term being able to adapt her views of the father and adjust her behaviour and conduct towards X which would consequentially ensure the minimisation of risks to X despite the professional assistance that was available to her. The mother’s failure to acknowledge her deficiencies in parenting and embrace the opportunities to improve those deficiencies in my view is not exercising the responsibilities of parenthood at all well.
Part of a parent’s duty in exercising a proper attitude to a child and responsible parenting in a non-intact relationship is the willingness and ability to facilitate a relationship of that child with the other parent. The mother has neither the willingness nor the ability to do so.
Ms L referred to and repeated in her updated family report that “a parenting plan for [X] should address two areas of responsibility; the first to foster her wellbeing and the second, to support the health of her relationship with each parent”.[161] I am satisfied that orders providing for any parenting arrangement other than a change of residence for X will not address those two matters having regard to the mother’s attitude and behaviour and her resistance to change them.
[161] Family report dated 22 May 2021 at [168].
Accordingly, in my view, there is no utility providing orders compelling the mother to engage in therapeutic intervention or making X’s time with the mother contingent on such engagement. The success or otherwise of such intervention ultimately depends on a voluntary and willing acceptance that such intervention is required. The mother does not hold that acceptance at the present time. It is the Court’s hope that in the best interests of X, the mother so engages.
Notwithstanding the mother’s attitude, X needs to maintain a relationship with the mother on a caregiving basis given the present relationship between them. These orders are structured in such a way to provide X with a secure foundation for a sufficient period of time to regroup and recuperate with her father between the times she spends with the mother thus mitigating the adverse effects upon her caused by the mother.
Any family violence involving the child or a member of the child’s family; and if a family violence order applies or has applied to the child or a member of their family, and any relevant inferences that can be drawn from the order
I do not know what transpired at the Magistrates’ Court in mid-2021.
The mother relies on an incident which occurred at X’s sport in early 2021. She alleges the father approached her within 10 metres in breach of the condition of the IVO. I am not in a position to make any such finding. I do not know whether he did so approach.
However, if I accept for present purposes only that he did so approach, from a family law jurisdiction perspective I find no fault on the part of the father. No doubt from a co-parenting perspective, criticism would be levelled upon a parent who would not allow or enable a child seeing the other parent in such a circumstance.
The mother makes several complaints about the father’s messages to her. I have read many of them and the mother’s messages to the father. The father’s messages are not in my view of a coercive, controlling, intimidating or threatening nature. They generally consist of him answering questions asked by the mother, providing her with information and trying to arrange and sort out child welfare issues in a courteous and respectful tone.
The mother’s messages to the father are not of the same nature, they threaten Federal Police involvement and supervised time, demand excessive information about X’s time with him and generally have an unpleasant and discourteous tone.
I am satisfied on the evidence before this Court that the father has not engaged in any family violence involving X or the mother. I also draw no inferences against the father because of the making of the interim Intervention Order or that he has been charged with breaches.
I will make as a final order the provision of documents to the Magistrates’ Court.
As I am unaware of what transpired on 12 August 2021 I also provide orders that my orders prevail over any Intervention Order to the extent of any inconsistency.
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
If X remains in the primary care of the mother it is my view she will find any reason to withhold time, frustrate time, and fail to genuinely consult with the father. That conduct will inevitably lead to further court proceedings.
THE PRIMARY CONSIDERATIONS
I have left canvassing the primary considerations to this stage as in my view the additional considerations give a broader and more fulsome context to my findings in relation to the primary considerations.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Plainly the mother is disappointed that she did not get confirmatory evidence of the “abuse” she alleges X suffers at the hands of the father through the interview processes with Ms L.
I am satisfied on the totality of the evidence before the Court which includes the DFFH email that there is not a need to protect X from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence from whilst in the care of either parent. I note though the father labels the posting of Exhibit F2 as “abuse”.
However there are other risks from which X needs protection that are not encompassed within the risks specified in this consideration.
I am satisfied that there are no other risks to X in the care of the father.
Ms L’s evidence in her report and to the Court set out in these reasons identifies the risks to X and the consequences of her exposure to those risks. I do not propose to repeat them.
I am satisfied the potential for those risks and consequences arising from those risks to the extent they have occurred already, and the potential for such risks and consequences to continue, have been, and will be occasioned in the future only as a consequence of the views and conduct of the mother. X needs to be protected from those risks.
In my view unless and until the mother’s attitude, views and behaviour dramatically shift to becoming more child focussed and if X remains in her primary care, the protective factors for X against those risks will be lost. I am satisfied the mother will continue to thwart X spending extended, ongoing and reliable time with the father and that the mother will not meaningfully engage, if engage at all, in individual psychotherapy to address her attitude to the father so that a more co-operative parenting arrangement between the parents can occur. The beginning of X losing her articulate bubbly and charming personality - at least at this point of time only in her mother’s company - has already started. The mother will continue to sabotage the protective factors for X against risk. As the mother is yet to understand the risks she poses to X she cannot understand the protective factors described by Ms L in paragraph 100 of these reasons.
In my view there is no other satisfactory option before the Court to protect X from those risks and consequences to her other than to provide for her to live with the father.
Interim orders have been suggested. That is not in my view a satisfactory outcome at the conclusion of these proceedings. Notably both parties seek orders, the father on a final basis and the mother on an interim basis, that the mother attend upon an appropriate expert to identify or assess whether the mother’s mental health adversely impacts on her care of X.
I am of the view that Ms L has already assessed and identified that the mother’s conduct adversely impacts on X. Whether it does because of her mental health, her views of the father, is only driven to diminish the role of the father in X’s life or some other reason does not in my view change the nature, presence and potential of the risks as at the present time. It will be up to the mother to analyse with an experienced professional on a voluntary basis as to why as a result of her conduct she places X at risk.
It is disappointing despite my prompting of the mother’s solicitor during closing submissions that there was no proposal by the mother to address her views of the father on a therapeutic basis with someone other than her present psychologist. If the mother had put such or similar proposal before the Court, it may have gone some way to assuage the Court that the potential risks to X could be ameliorated if X remained in her primary care. It would have said to the Court that the mother understood and accepted the adverse impact her views and conduct has on X and that she was willing to address her views and conduct. Her amended proposal for the reasons already referred to does nothing to satisfy the Court the mother holds any such understanding and acceptance or willingness to change.
In any event, these proceedings have been before the Court for just short of two years. It takes time for evaluations or risk assessments to be undertaken or therapeutic intervention to make its mark. The matter will then require further Court hearing time. X needs certainty and stability in her living arrangements. She is about to start school. The risks to which X is exposed at the present time because of the mother’s conduct and attitude toward the father need to be fulsomely addressed by the Court now.
Having regard to the mother’s staunch and steadfast views she holds of the father and of the propriety of her own behaviour it is my view it will take a lengthy period of time before the mother will be able to recalibrate her thinking and behaviour, if she so chooses to accept that task.
The benefit to the child of having a meaningful relationship with both of the child’s parents
Ms L identifies in her first report that X has a meaningful relationship with both parents and that it is clear she benefits from the meaningful relationship with the father.[162]
[162] Family report dated 22 May 2021 at [120].
I find that X has a meaningful relationship with both of her parents and derives a benefit from those relationships.
X has managed at this stage to largely remain a bubbly, delightful little girl, and has been able to show some resilience against the conflict and the mother’s attitude toward the father. That X has so remained to date has been assisted by what Ms L saw as a protective factor for X, that is, for her to spend extended, reliable and ongoing time with the father. One can see a happy, charming, articulate little girl in Exhibit F3 chatting merrily along in the car in the father’ presence. I have no doubt that Exhibit F3 was not contrived by the father, unlike the conversation the mother had with X in the car in Exhibit F2. X’s demeanour in Exhibit F3 thankfully is a far cry from her demeanour in Exhibit F2. X needs to be able to continue being a chatty happy merry child.
X’s relationship with the father is meaningful on many levels, including that it provides a protective mechanism from the risks occasioned by the mother. The preferred interpretation of benefit to a child of a meaningful relationship is “the prospective approach” in that the Court should “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”.[163]
[163] McCall & Clark [2009] FamCAFC 92 at [118].
Plainly then this Court must ensure that the relationship between X and her father continues. Having regard to the foregoing in relation to the mother’s conduct, lack of insight and parenting judgement and her entrenched negative view about the father, the Court has no confidence the father/daughter relationship will continue to any meaningful extent if X remains living in her primary care so as to enable the continuation of the protective risk factor of X spending consistent blocks of time with the father.
In my view the only way X can maintain that protective factor and to achieve any amelioration or minimising of the risks to X identified by Ms L, and for X to maintain a meaningful relationship with both parents, is if she lives with the father.
PARENTAL RESPONSIBILITY
The father seeks sole parental responsibility in relation to health and education. The mother now seeks equal shared parental responsibility. She is not genuine in that proposal. She initially sought sole parental responsibility in relation to health and education.
Section 61DA(1) of the Act provides that when making a parenting order, the Court must apply a presumption that is in the best interests of the child for the parents to have equal shared parental responsibility.
As can be seen from these reasons I am not of the view there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. Therefore the presumption applies[164]. However it is my view the presumption is rebutted as I am satisfied that it would not be in X’s best interest for it to apply.[165]
[164] Section 61DA(2) of the Family Law Act 1975 (Cth).
[165] Ibid s 61DA(4).
Ms L observed the father presents with a willingness and capacity to work towards a co‑parenting relationship but the mother continues to present as minimising of his role.[166] The father has the capacity for communicating with the mother. I am of the view that the same cannot be said of the mother.
[166] Family report dated 22 May 2021 at [111].
The mother said of the co-parenting relationship between the father and her “that’s a really hard question and really one that needs to be thought about, because I couldn’t probably express myself honestly to [Mr Eccleston] without being very angry. So that’s probably – probably a big drawback on a co-parenting relationship”.[167] She said “when you put it all together, I’m not co-parenting with [Mr Eccleston]. I’ve tried. I’ve tried, and tried and tried…I’ve bashed my head…he’s combat parenting. He is not co-parenting.[168]
[167] Transcript of 22 June 2021 at [98] and [99].
[168] Ibid at [99].
The mother has been reluctant to engage with the father in any meaningful way in relation to which primary school X should attend. The mother holds no concept of imparting information in relation to X to the father ranging from her medical treatment to what activities she is involved. I am satisfied that the mother also failed to consult with the father in relation to X’s enrolments at F Kindergarten and Z Preschool. Lest it not be forgotten that an order for equal shared parental responsibility has been in place since 16 June 2020. Notwithstanding the order was made with the consent of the mother she has not complied. The order has not worked. The Court has little confidence that she will so comply in the future irrespective with whom X lives.
When the father does try and communicate with the mother but does not agree with her he is accused of perpetrating family violence.
The Full Court in Marvel & Marvel (No. 2) [2010] FamCAFC 101 considered the matters to be taken into account in relation to the rebuttal of the presumption as follows:
It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child's best interests.[169]
[169] Marvel & Marvel (No. 2) [2010] FamCAFC 101 at [103].
In Oscar & Traynor [2008] FamCA 95 Murphy J whose findings in relation to parental responsibility were upheld on appeal in Oscar & Traynor [2008] FamCAFC 158 observed as follows:
The Act (s.65DAC) makes it clear that sharing parental responsibility in respect of "major long-term issues" is not a passive activity; it requires those having equal shared parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
A finding, then, that the parties are utterly incapable of doing so and that there is no reasonable prospect of them doing so in the future, would appear to lead to a conclusion that equal shared parental responsibility is contra-indicated in the best interests of the children and all the more so if it be accepted that high conflict is generally antithetical to the best interests of children.[170]
[170] Oscar & Traynor [2008] FamCA 95 at [253] and [254].
Historically the parents have shown an inability to reach joint decisions. I am of the view that until the mother addresses her attitude toward the father the parents will be utterly incapable of consulting with each other in any constructive way.
The inability of the parents to communicate in my view would potentially lead to further litigation. That would not be in X’s best interests. The mother described the father’s attitude towards her as “combative parenting”. I agree with Counsel for the father’s submission there was no evidence of combative parenting from the father. I also agree with Counsel for the father’s submission that “to enable [X] to be free from conflict and future litigation, it’s important that my client have that sole parental responsibility”.[171]
[171] Transcript of 23 June 2021 at [153].
The father seeks I make a hybrid order providing for equal shared parental responsibility to remain for religious issues, X’s name or changes to X’s living arrangements outside of Australia. I note that there is no dispute and there is unlikely to be a dispute about those three issues. However, in my view hybrid orders can sometimes become problematic. Decision making in relation to any of the five major long-term issues identified in section 4 of the Act can overlap. In my view the inability of the parents to consult and reach joint decisions in this matter is extreme. To ensure as far as possible finality to proceedings between the parents an order will be made for the father to have sole parental responsibility on all major long term issues. The order will only be qualified by the father’s proposal that he seek and consider the views of the mother.
School
The issue of which school X shall attend is resolved as the father will have sole parental responsibility for education. In any event in my view it is in X’s best interests to attend D School.
The school is approximately equidistant between the homes of the father and the mother. Both parents will have approximately the same distance to travel and have the responsibility of delivering and collecting X to and from school and all the other tasks, duties and obligations required at the school and out of school hours of a parent of a young child. The father will bear that responsibility more often than the mother as he will be X’s primary carer. He has work commitments. He can rely on the school bus. The mother can likewise take up the father’s offer to pay for bus transportation between D School and her home if she is unable to attend to it personally. She also has the support of the maternal grandfather.
Ms L supported X attending D School given the nature of pastoral care described to her by the father given X’s anxieties and toileting issues. The mother accepted D School had been a researched proposal by the father and she thought it was a positive the father had considered D School, education years spanned from primary school to year twelve.[172] D School is prima facie a satisfactory school for X to attend.
[172] Transcript of 21 June 2021 at [50].
I accept that if X were to attend K School it is probable she will have an existing friendship group that will also attend there. It is not unusual though for children to commence their education at a school where there is not such a cohort. K School however does not afford the father, the primary carer, with ease of access given the distance from his home. There is also no other means of transportation upon which he can rely to deliver or collect her from there if his work commitments render him unable to do so.
On balance I am satisfied X attending D School is in her best interests. I will limit the provision of documents in these proceedings to only these orders to D School and not these reasons. That will prevent any preconceived notion of the mother being held by the school community.
Counselling
The mother seeks X attend upon a psychologist to determine the cause of X’s anxieties. I have no doubt that one of the reasons the mother seeks such engagement is as a means by which she can garner evidence in relation to her allegations of “abuse” by the father. The mother has been tenacious in both trying to achieve that goal and for such engagement to occur.
Ms L was of the view in both of her reports that X did not require individual psychological assessment or therapy, that it would not benefit her and she must not be labelled as problematic or the problem in the family which can sometimes occur when children attend individual therapy. It was Ms L’s view that it should be the mother and father who address their parenting issues.[173] Ms L also told the Court that the mother by still pursuing X having psychological intervention showed very limited insight into being child focussed.
[173] Family report dated 5 June 2020 at [155] and family report dated 22 May 2021 at [160].
When the father engages with a clinician to assist him with the transition of X living primarily in his care it is likely that X will also engage. That is a different form of engagement than which the mother seeks.
The father has a competent legal team who will be able to make the appropriate referral to the father of such a clinician. Ms L would also be able to assist with names.
The provision of court documents in these proceedings to any medical and allied health professionals is not limited to these orders but will also include these reasons. It is imperative that such professionals have a complete overview of the dynamics between the parents.
I have little trust in the mother not continuing on her mission to obtain evidence to suit her purpose. For the avoidance of doubt these orders will provide for a restraint on the mother engaging X in therapeutic interventions.
Provision of these orders and reasons are also to be provided to each parent’s respective mental health practitioners.
LIVE WITH AND SPEND TIME ARRANGEMENTS
As I do not propose to make an order for equal shared parental responsibility I am not obliged to consider X spending equal time with each parent. However, given the dynamics between the parents and the complete lack of a co-parenting relationship I am satisfied an equal shared care arrangement is not in X’s best interests.
It is my view that to afford absolute regard to the Objects in section 60B and taking into account the evidence in relation to the section 60CC considerations that it is in X’s best interests to live with the father. My orders will provide for X to spend substantial and significant time with the mother.
I accept removing X from the mother’s primary care will not prevent the mother from continuing to hold her beliefs about the father or change her conduct but it at best reduces the potential for sustained and lengthy periods of time X will be exposed to the mother’s negative views of the father, the mother’s behaviour as a consequence of those views and the resulting detrimental impact on X’s emotional and psychological well-being.
I accept the submission of the mother’s solicitor that Ms L’s updated report did not recommend a change of residence. However those recommendations were qualified by “unless there is further information available that might indicate otherwise”. I also accept her oral evidence did not definitively recommend a change of residence.
In my view however there is further information that might indicate otherwise. Unlike Ms L, I had the opportunity of observing the mother over a three day period and hearing her evidence including her answers when challenged and generally observing her. I have seen when the mother changed her proposal and under what circumstance.
The mother’s case outline refers to and In the marriage of Hall and Hall [1979] FLC 90-713. The facts of that case are discussed in a way to support the mother’s proposal. However, the outcome in any particular case depends on its own unique set of facts.
Relevantly the Full Court said:
There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities.[174]
[174] In the marriage of Hall and Hall [1979] FLC 90-713 at [24].
I am comforted by Ms L’s evidence that X will manage the change given her personality and she can depend on the emotional support she will receive from the father who will be professionally supported.
Very significant are Ms L’s words that the key risk factor for X’s development and welfare is the mother’s parental capacity and that the risk factors of a change in residence do not outweigh the protective factors if a change of residence was determined by the Court.
The father was content, if that is the right word, in his initial proposal for a change of residence to him and that X immediately spend five nights with the mother per fortnight in two blocks during school terms. I do not propose to make any order for supervised time. I have already expressed my view on the making of a self-executing order to unsupervised time upon the obtaining of a risk assessment. Furthermore Ms L did not volunteer or suggest supervised time.
I am also of the view there is little utility in X initially spending extremely limited time with the mother which then progresses to more substantial time. The mother’s all-consuming negative view of the father exists all of the time. It will not disappear within the time set out in orders and the mother has proven she cannot hide her feelings about the father from X or contain her conduct with her.
However, my orders will also not completely accord with the father’s initial proposal.
There is merit in Ms L’s opinion there should be a settling in period for X to adjust living with the father for one school term. Ms L said there should be a cautious approach during this period in relation to time with the mother. These orders will provide for electronic communication only between the X and the mother for one school term.
This will give X time to settle and adjust being in her father’s primary care. It will enable the mother to come to terms with these orders and gain access to psychological therapy with an experienced therapist in such matters before X spends personal face to face time with her. I will not compel the mother to do so. If she does so engage it will be a true testament to her willingness to address the issues that adversely affect X. Her doing so will also minimise X from the potential of continuing to be compromised by her care.
It is timely that the delivery of these reasons occurs just before the start of the school year. The initial period of no face to face time between X and the mother may be perceived by X as extended holiday time with the father. I am also comforted that X commencing her primary school education in a new environment will provide a distraction for her from missing her mother. The father will also be assisted by appropriate professional support.
I am not persuaded it is in the best interests of X to spend overnight time in two separate blocks during a two week period. There is one aspect of the mother’s evidence which I do accept, that is, X is finding it difficult to transition between the two homes. The mother feels X is being “duck shoved from here, there to everywhere” and it takes her time to settle.[175] I am also mindful of Ms L’s evidence that the mother allows X to experience anxiety moving between the parents. The pressure on X having to adjust too often to the different attitudes and insight of the parents must be relieved. I propose that time progresses to X spending four nights each fortnight in one block during school terms with the mother.
[175] Transcript of 21 June 2021 at [26].
In my view, as I have already expressed in these reasons, the father has an overall generous attitude toward X’s time with the mother. Any further time between X and the mother as otherwise provided for in these orders will be with the agreement of the parties in writing. I am confident the father will look favourably upon X spending additional time with the mother if he is satisfied it is in her best interests to do so. I have no doubt he will seriously consider X spending more time with the mother during school terms including whether it be for five nights in two blocks each two week period during school terms until 2024 and thereafter for five nights in one block, as per his proposal, or in any other pattern.
CONSEQUENTIAL AND ANCILLARY MATTERS
Social media postings
The orders made on 23 June 2021 provide a restraint on both parents from posting photographs, messages and the like in relation to X on any social media platform. I was not addressed as to whether this restraint should continue.
Prior to the making of 23 June 2021 order there was no complaint against the father abusing social media by exploiting X for his own self-serving purposes. My orders will provide no further restraint on him in this regard.
I am not confident that such latitude should be granted to the mother. I have no confidence that the mother will restrain herself from posting on social media if she again becomes “angry” or seeks “support” from her social media network.
I have no doubt the mother rues the day she posted Exhibit F2 given the significant impact it has had on the Court in relation to its view of the mother’s inappropriate attitude to the responsibilities of parenthood and her inability to provide for X’s emotional needs.
Christmas arrangements
Counsel for the mother addressed the Court on the difference between the proposals in changeover times. The Court notes however that the mother does not propose the father have any Christmas Day time each alternate year. That comes as no surprise to the Court. The father seeks changeovers on Christmas Eve, Christmas Day and Boxing Day at 2.00pm, and provides for X to see both parents on Christmas Day. I accede to the father’s proposal.
Easter
The Court was not addressed on Easter arrangements.
The father makes no specific provision for Easter. The mother provides no specified time with the father during Easter but makes provision for X to spend time with her on Easter Saturday from 5.00pm until Easter Sunday at 1.00pm each year. That also comes as no surprise to the Court. This must also be seen in the context that the mother makes no provision for X to spend time with the father during the first term school holiday period during which Easter generally falls other than in accordance with his fortnightly pattern if the continuation of the fortnightly pattern was part of her proposal. If so, if the Easter period falls on the father’s weekend time his limited time with X during that holiday period becomes even more limited. I do not propose to make any orders in relation to the Easter period.
Unless otherwise agreed between the parents X will spend time with each of them in accordance with in whose care she is pursuant to school holiday arrangements.
The Parent’s Birthday and X’s Birthday
The Court was not addressed in relation to X’s birthday or either of the parents’ birthdays.
The father makes no provision for these dates. The mother seeks specific orders. It is not my usual practice to make specified orders in these terms unless they are by consent. I do not propose to make any such orders. Arrangements can be made as agreed between the parents.
Restraints
The mother has a tendency to interpret events and even a court order to suit her purpose. For the avoidance of doubt and to ensure the mother does not come into contact with X, even from a distance, the orders will provide for restraints against the mother from attending various venues from the date of this order until the first occasion when X spends physical face to face time with her.
For the foregoing reasons orders are made as set out.
I certify that the preceding three hundred and sixty-nine (369) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boymal. Dated: 25 January 2022
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