Eddy and Weaver
[2005] FMCAfam 596
•7 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EDDY & WEAVER | [2005] FMCAfam 596 |
| FAMILY LAW – Children – application for shared and equal residence – whether such arrangement is likely to be in best interests of children concerned – allegations of serious family violence – high level of hostility – parties unable to communicate – wishes of children. |
| Family Law Act 1975, ss.60B, 65E, 68F |
| B and B: Family Law Reform Act (1997) FLC 92-755 T & N [2001] FMCA fam 222 Bartholomew & Kelly Appeal number NA25 of 2000 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Briginshaw v Briginshaw (1938) 60 CLR 336 H v W (1995) FLC 92-598 |
| Applicant: | MS EDDY |
| Respondent: | MR WEAVER |
| File Number: | ADM2158 of 2004 |
| Judgment of: | Brown FM |
| Hearing dates: | 8, 9 June; 12 August & 24 October 2005 |
| Delivered at: | Darwin |
| Delivered on: | 7 November 2005 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lewis |
| Solicitors for the Applicant: | D’Angelo Kavanah |
| Counsel for the Respondent: | Mr Noble |
| Solicitors for the Respondent: | Jane Ekin-Smyth |
ORDERS
That the children [X] born in 1997 and [Y] born in 1998 live with the mother.
That the mother be responsible for the day to day care, welfare and development of the children when they are in her care.
That the father be responsible for the day to day care, welfare and development of the children when they are in his care.
That the father and mother be jointly responsible for the long term care, welfare and development of the children.
That the father have contact with the children as follows:
(a)During school terms on each alternate weekend, commencing at the conclusion of school on Friday and concluding at the commencement of school the following Monday, provided that if it is a long weekend contact shall conclude at the commencement of school the following Tuesday;
(b)During school terms in the other alternate week of each fortnight on a school night from after school until the commencement of school the following day, the days to be agreed between the parties and failing agreement to be from after school on Tuesday until the commencement of school the following Wednesday;
(c)For the first half of the April, July and October school holidays in 2005 and each year thereafter ending in an odd number from after school on the last day of the school term and concluding at 2.00pm on the middle day of the holiday period;
(d)For the second half of the April, July and October school holidays in 2006 and each year ending with an even number thereafter commencing at 9.00am on the middle day of the school holiday period and concluding at 2.00pm on the last day of the holiday period;
(e)For half of each Christmas school holiday period being the first half in the holiday commencing in 2005 and each odd ending year thereafter and the second half in the holiday commencing in 2006 and each even ending year thereafter provided that in 2005 the children will spend from 11.00am on Christmas Eve until 11.00am on Christmas Day in 2005 and each odd ending year thereafter with the mother and from 11.00am on Christmas Eve until 11.00am on Christmas Day in 2006 and each even ending year thereafter with the father;
(f)On Father’s Day from 10.00am until 5.00pm should Father’s Day fall on a non-contact weekend provided that should Mother’s Day fall on a contact weekend then the father’s contact shall cease at 10.00am on Mother’s Day;
(g)On the father’s birthday from 10.00am until 5.00pm should such birthday occur on a non-contact weekend and from after school until the commencement of school the next day should such birthday fall on a weekday, which is not a contact day, on the basis that should the mother’s birthday fall on a contact weekend then the children will be returned to her between 10.00am and 5.00pm on her birthday and should the mother’s birthday fall on a weekday when the children would otherwise be having contact with the father then the children shall be returned to her between 3.30pm on her birthday until 9.00am the following day;
(h)On each of the children’s birthdays at times to be agreed between the parties and failing agreement from 3.30pm until 5.30pm;
(i)At any other times or on any other conditions as may be agreed between the parties from time to time.
That the father be at liberty to visit the schools attended by the children from time to time for events, activities or functions routinely attended by parents.
That neither party restrain the children from attending the school at which they are currently enrolled or change the school enrolments of the children, save with the consent in writing of the other parent.
That subject to any agreement to the contrary between the parties contact changeovers shall occur by the father collecting or returning the children to the children’s school or at the mother’s home provided that the father remains in his vehicle at all times during the exchange of the children at the mother’s home.
That the father and mother each keep the other informed of any major illness or accident suffered by the children when in his or her care and advise the other as soon as practicable of the name of each treating doctor or like professional attended by the children.
That the mother be at liberty to arrange counselling support for the child [X] as she deems appropriate in accordance with the recommendations of Ms Hewett, the writer of the family report herein and on condition she advises the father of the name of the professional providing the counselling and the father be at liberty to discuss the counselling with the provider of such counselling.
That each of the parties be and are hereby restrained from denigrating the other parent, or discussing any aspect of these proceedings and the judgment delivered herein in the presence or hearing of the children concerned.
That the application and response herein be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Eddy & Weaver is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADM 2158 of 2004
| MS EDDY |
Applicant
And
| MR WEAVER |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to final arrangements for the parenting of two children - [X] born in 1997 and [Y] born in 1998. The parties to the proceedings are the children’s parents, their mother MS EDDY and their father MR WEAVER. They are in vehement dispute as to how parenting responsibility for the two children is to be divided between them.
Mr Weaver believes that the best arrangement for the care of [X] and [Y] is one in which the children live for equal periods of time with both their parents. He proposes the children live with their parents on a week about basis, changing homes each Friday afternoon. Such an arrangement is usually referred to as a “shared care arrangement” or a “shared parenting arrangement” or colloquially as “fifty/fifty.”
It is Mr Weaver’s position that both children “have expressed to me a desire to live with me for what they term as “equal time”.”[1] As a result of this, Mr Weaver asserts he has adopted the position he has in these proceedings because of his desire to give effect to the children’s wishes.
[1] See Father’s affidavit of evidence at paragraph 1
Ms Eddy does not believe that such an arrangement is likely to be workable because of the high levels of tension and suspicion between the parties, which she believes are unlikely ever to completely dissipate. She believes that the children do not want a shared care arrangement and to impose it would inevitably have detrimental consequences for their emotional well being and security. Accordingly, she proposes that the children should live predominantly with her and that the father should have contact to them on alternate weekends during school terms and for half of each school holiday. This has been the arrangement which has persisted since the parties separated, a period of at least two years.
When parents, who no longer live together, ask the court to determine where and with whom their children should live and on what basis, it is the best interest of the children which are paramount and the court must decide which of the competing proposals is most likely to advance the children’s best interests. These proceedings are an inquiry into how [X] and [Y]’s interests, both in the short and long term, may be best served.
The parties disagree about many things, not the least of which is the date on which they finally separated – the mother asserts it was in January 2003, the father that it was on 16 May 2003, when what has been euphemistically described as “an incident” occurred between them. This incident has loomed large in these proceedings, along with a number of inter-related issues, which, when closely considered, distil down to this. Do the parties have a sufficiently trusting and
co-operative relationship with one another to make the shared parenting regime, sought by Mr Weaver, work adequately or is their relationship currently so dysfunctional that such an arrangement is doomed to failure with possible disastrous emotional consequences for the children concerned. In the alternative, does it matter if the parents’ relationship is poor, if there is an adequate regulation of their behaviour, to such a degree that the children concerned can move from one household to the other without undue distress and so the object of equal parental input into their care can be achieved. Ipso facto, is not such an arrangement likely to be in the best interests of the children involved, particularly if they have a significant and close relationship with both their parents. It is a topic of particular general interest and controversy at present.
It is the mother’s case that the father is a domineering and violent person, who, by necessary implication, is an inappropriate role model for young children. In her case, the incident of 16 May 2003 involved a violent and protracted assault on her person by the father, which culminated in the father digitally raping her. She says this incident occurred within the parties’ former family home at [W]. Apart from the parties themselves, there were no other witnesses to this incident.
The father acknowledges that he did assault the mother on 16 May 2003 but he has deposed that the incident occurred outside the house, when the parties were having a heated discussion, during which he momentarily lost his temper, in the face of some provocation, and slapped Ms Eddy once to the side of her head. This is an action he now says he bitterly regrets. He denies that he is a violent and abusive person. By necessary implication, it is his case that the mother has concocted her account of the purported rape, either to blacken his character or for some other malign purpose of her own.
The mother complained to the police about the incident. Mr Weaver was charged with both assault and rape. There was a trial in the District Court of South Australia, before a jury, in May of 2004. Mr Weaver pleaded not guilty to the charge of rape and was acquitted by the jury. He pleaded guilty to the assault and was sentenced, in July 2004, to a term of imprisonment of six months, which was suspended on condition that he enter a good behaviour bond for three years; perform one hundred hours of community service; and complete an anger management course.
On 5 July 2004, the District Court also ordered that Mr Weaver be restrained, I assume also for a period of three years, from assaulting, intimidating, threatening, molesting, harassing or otherwise interfering with Ms Eddy. In addition, he is not to approach, contact or telephone Ms Eddy, other than as permitted under an order of this court or the Family Court in order to arrange contact with [X] and [Y]. It is common ground between the parties that they have not directly communicated since May of 2003. Ms Eddy has no wish to have any dealings directly with Mr Weaver. She does not resile in any way from her statement that Mr Weaver violently assaulted and raped her.
The parties, for obvious reasons, currently have an essentially negative view of each other. This situation is unlikely to change. It is Ms Eddy’s position that she has been more closely involved in the day to day care of the children than Mr Weaver has, both before and after separation. To use the jargon of social scientists, she asserts that she has been [X] and [Y]’s “primary care giver.” She asserts that this a major factor which supports her position, so far as final orders for the children are concerned.
Mr Weaver does not accept this. It is his position that, prior to the parties’ separation, he was extensively involved in the care of both children, to a degree equal to that of Ms Eddy. It is his position that this state of affairs is indicative that, in the future, a shared care arrangement is likely to be the best one for [X] and [Y]. By implication, he asserts Ms Eddy does not have a proper appreciation of the responsibilities entailed in being a parent and is trying to undermine his strong and loving relationship with the children. Essentially he asserts that he is of equal significance to Ms Eddy in the lives and care of [X] and [Y] and this should be recognised in a shared parenting arrangement, based on a strictly equal temporal division in responsibility for the care of the children concerned between the parties.
In order to assist the parties and the court to resolve the issue of the children’s level of attachment to each of their parents and also, if possible, explore the wishes of the children in regards to their preferred place and manner of residence, the parties commissioned a family assessment. The family assessment was prepared by Ms Roxanne Hewett, a psychologist.
In her report dated 27 January 2005, Ms Hewett recommended that [X] and [Y] should continue to reside primarily with Ms Eddy and have contact with Mr Weaver on alternate weekends, as well as on an additional evening in the intervening week. Thereafter, Ms Hewett recommended that consideration be given to increasing the contact, to include an overnight stay each week.
Ms Hewett interviewed both [X] and [Y] and observed each of them interacting with their parents. She also interviewed both of them. As a result of her interviews and observations, Ms Hewett reported that both [X] and [Y] expressed a wish to reside primarily with their mother. In Ms Hewett’s assessment, both children had a strong emotional attachment to Ms Eddy and attributed her as being their primary carer. She considered that both children had a positive emotional relationship with both their parents, but possibly a more relaxed relationship with their mother.
In her report, Ms Hewett wrote that both [X] and [Y] had indicated that they understood that it was their father’s preference for them to live with him on a “fifty/fifty” basis or “half/half”. Ms Hewett reported that both [X] and [Y] were consistent in reporting this as not being their preferred outcome. In addition, Ms Hewett performed a number of psychometric tests on the children, which in her view confirmed her observations of the children with their parents. [X] reportedly indicated some concerns that his father might be “cross” when his wishes were made known. As a result of [X]’s level of anxiety, Ms Hewett recommended that he have some form of therapeutic counselling.
Mr Weaver does not accept Ms Hewett’s conclusions or recommendations. It is his position, supported by his father, Mr W Senior, that both children have expressed a clear wish to live with their parents on a “fifty/fifty” basis. As a result, it is Mr Weaver’s position that the children were coached by Ms Eddy, regarding what they were to say to Ms Hewett, prior to being interviewed for the family assessment. Mr Weaver is vehemently opposed to [X] receiving any counselling. Needless to say, it is Ms Eddy’s position that the court should accept Ms Hewett’s report regarding the wishes of both [X] and [Y] and her recommendations generally. Ms Hewett’s evidence consumed a considerable portion of the hearing.
Ms Eddy has commenced a new relationship, since the parties separated. Her current partner is Mr F, with whom Ms Eddy, [X] and [Y] presently live in [S]. Ms Eddy and Mr F have lived together since last year and purchased their home together in November of 2004.
Ms Eddy is pregnant and she and Mr F expect their child to be delivered in January of 2006. It seems clear that Mr Weaver and Mr F do not have an easy relationship with one another. In fact, they have never directly conversed.
The hearing of this matter was scheduled to begin on Wednesday
8 June 2005 and conclude the following day. The court had been told the case would take two days to hear. This did not prove to be the case. [X] and [Y] spent the preceding weekend to the hearing withMr Weaver. He alleges that during this weekend the children disclosed to him that they had been subjected to serious and persistent physical abuse by Mr F, which had markedly upset and frightened them. It is
Mr Weaver’s position, corroborated by his father, that both [X] and [Y] repeated these allegations to Mr W Senior.
These disclosures were communicated, by Mr Weaver’s lawyers to
Ms Eddy and her lawyers, shortly prior to the commencement of the hearing. Obviously they were serious matters, which could not be ignored. Mr F denies any inappropriate behaviour towards either [X] or [Y]. It was his evidence that he enjoys a healthy and happy relationship with both children with whom he plays in an appropriate fashion. His evidence was corroborated by Ms Eddy, who deposed that she has never noted any inappropriate behaviour by Mr F towards the children or received any reports, from either [X] or [Y], that Mr F has ever acted inappropriately towards them or frightened them in any sinister manner.
The investigation of this matter took a considerable period of time.
It meant that the case could not be completed in the time allocated to it. In addition Mr Weaver had made complaints to the police about what the children had purportedly told him. As a result, [X] and [Y] were interviewed by police officers, presumably so consideration could be given to Mr F being charged with a criminal offence or offences. It is now common ground between the parties that the police do not intend to charge Mr F with any offence. Due to the delays occasioned by the investigation of this matter, the case was adjourned, part-heard to
12 August 2005.
In the meantime, the solicitor for Mr Weaver, caused a subpoena to be issued to the Commissioner of the South Australian Police directing that he produce to the court the following documents:
“All documents, video tape recordings, books and anything of whatsoever nature in relation to Mr F, [X] born in 1997 and [Y] born in 1998.”
In reality this meant the video tape recordings made by the police with [X] and [Y], regarding the allegation that Mr F had been mistreating them.
On the day scheduled for the hearing to recommence, 12 August 2005, counsel for each of the parties and Ms Hewett spent much of the day viewing these video tapes. Unfortunately, once again, the case could not be completed in the time allocated to it. The proceedings had to be further adjourned to 24 October 2005. The time was not wasted. As a result of viewing the video tapes with his counsel, Mr Weaver conceded that there was no basis on which it could be concluded that Mr F had ever mistreated either [X] or [Y]. Mr Noble, counsel for
Mr Weaver, made this concession to the court on 12 August 2005.
Regrettably the matter has taken far longer to conclude than I would have wished. That is because the parties’ legal advisors underestimated the complexity of the matter when it was fixed for hearing and other issues arose during the course of the hearing. In addition, the proceedings were conducted with rigour and vehemence. Neither
Mr Noble nor Ms Lewis, counsel for Ms Eddy, failed to thoroughly examine any issue which was of significance to his or her respective client. The final day of the hearing was largely taken up with cross-examination of Ms Hewett, who from both parties’ points of view was a crucial witness.
The issues
Having provided this introduction, it is useful to summarise the various issues which fall for determination by the court.
·What is the nature of the parenting relationship between the parties;
·Is this relationship conducive to a shared care arrangement for the parenting of [X] and [Y];
·Does it matter if the parties do not converse with one another and have a hostile view of the other, if this behaviour is properly regulated by court order and each party observes those orders;
·Who of the parties is likely to have a better insight into the responsibilities of being a parent;
·In particular, are the parties capable of encouraging the children concerned to have a positive relationship with the other of their parents;
·In this regard, what are the consequences of Mr Weaver’s view, from which he has subsequently resiled, that Mr F is an inappropriate person to have any dealings with [X] and [Y];
·Given the sex of the children concerned, is it likely to be in their best interests to have more contact with their father, working towards a shared parenting regime, as they grow older;
·Who of the parties has a better insight into the level of conflict between them and of devising strategies to cope with it and protect the children from it;
·What are the likely emotional consequences for the children to move from the current regime, which has been in place for over two years, to the shared care regime advocated by Mr Weaver;
·
What are the consequences of the mother’s allegation that
Mr Weaver violently raped her, in terms of the workability of a shared parenting regime:
· If it be true as Ms Eddy asserts;
· Or if it has been maliciously concocted as Mr Weaver asserts;
· Or if the court determines, on the balance of probabilities, given the serious nature of the allegation, it is unable to make a positive finding in regards to it;
·What are the children’s wishes or view in regards to their place of residence and what has been described as the “fifty/fifty” arrangement.
· In this regard, what is the relevance of the ages of the children concerned;
· What weight should be given to Ms Hewett’s opinion, given the time which has elapsed since the report was prepared;
· Is it the case the children have been “coached” by Ms Eddy with the result that Ms Hewett’s conclusions are likely to be fatally flawed;
·Is it likely to be in [X]’s best interests, as Ms Hewett recommends, for him to have therapeutic counselling;
·
Do the children need to be protected, by specific order, from
Ms Eddy’s brother, Mr E.
The legal principles to be applied in the case
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. The principles underlying this object are set out in s.60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interest, the following:
i)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
ii)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
iii)parents share duties and responsibilities concerning the care, welfare and development of their children; and
iv)parents should agree about the future parenting of their children.
The application of these objects is subject to the provisions of section 65E, which regards the best interests of the child or children concerned as being the paramount consideration in the making of a determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2) of the Family Law Act. The various
sub-sections contained in s.68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”.
This latter provision ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the court, and, in this regard I refer to B and B: Family Law Reform Act.[2] In this case it is the court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant sub-sections contained in s.68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve [X] and [Y]’s best interests.
[2] B and B: Family Law Reform Act (1997) FLC 92-755
There is no presumption either in favour of or against a joint parenting arrangement created by the provisions of the Family Law Act 1975.
No one arrangement in respect of the care of children is to be preferred to another. The aim of the provisions of Part VII of the Act is to create orders that are tailored to the individual circumstances of the child or children concerned to bring about the situation that is likely to best serve their interests.
Other relevant jurisprudential matters
As has already been mentioned, issues to do with the shared parenting of children, following relationship failure, are matters of general community interest and controversy, particularly as gender roles adapt and change and more and more parents are involved in the paid workforce. It is common knowledge that the Commonwealth Parliament is due to consider changes to the Family Law Act 1975, in regards to the issue of shared parenting, during the course of the forthcoming year. What those changes will be is uncertain and it is clearly inappropriate for the court to act in anticipation of any such change.
However, it is appropriate for the court to outline some of the considerations, which have been applied by other courts in the past to applications regarding shared parenting regimes.
In T & N,[3] Federal Magistrate Ryan summarised the various authorities, both before and after the Family Law Reform Act, to draw up a list of the various matters which had, in the past, been taken as providing useful indicia, as to whether or not a shared parenting regime was appropriate in a particular case. These matters were as follows:
[3] T & N [2001] FMCA fam 222 at page 34
·The parties’ capacity to communicate on matters relevant to the child’s welfare;
·The physical proximity of the two households;
·Are the homes sufficiently proximate that the children can maintain their friendship in both homes;
·The prior history of caring for the child. Have the parties demonstrated they can implement a 50/50 living arrangement without undermining the child’s adjustment?
·Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on those matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extracurricular activity.
·Can they address on a continuing basis the practical considerations that arise when a child lives in two homes? If the child leaves necessary schoolwork or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child’s wishes and the factors that influence those wishes;
·Where siblings live.
These matters as listed by Federal Magistrate Ryan, correspond closely with other matters listed by Schepis & Formica in their article “Joint Custody – Some Practical Aspects.[4] These matters included mutual trust between the parents concerned; an ability to communicate; an ability to cooperate and compatible parenting value. The learned authors noted that the break down of a marriage sometimes resulted in the estranged couple mistrusting each other. To ensure a workable joint care arrangement, it was considered essential that both parents trust one another, as otherwise distrust between the parents could result in conflict and emotional tension that might flow through to the children concerned.
[4] J Schepis & L Formica ‘Joint Custody – Some Practical Aspects’ Australian Family Lawyer Volume 6 No 2
Similarly, incompatible-parenting values between the parties concerned, could also lead to mounting tension and mistrust, to the point where arrangements became detrimental and unworkable.
The learned authors also referred to an unreported case of Hall & Fordyce, where Kay J observed that:
“The reality of a child’s life is that save in very exceptional circumstances, equal sharing of time is generally unobtainable because of the geography of the parties or the personality of the parties or the needs of the child. In most cases it cannot be achieved… I think it is fair to say that the Judges of this Court have not generally embraced the concept of shared parenting in cases where there is any degree of conflict between the parties.”
However, as was pointed out by the Full Court of the Family Court in Bartholomew & Kelly[5], there is no principle that a shared parenting regime should not be imposed if any of these “key elements” are not present. Rather, in order to determine what orders will best address the best interest of [X] and [Y], it is necessary to turn to the various factors set out in s.68F(2) of the Family Law Act. These factors are to be applied to the situation as it pertains to the children in a commonsense way, so that whatever orders are ultimately made, they will bring about a situation that is most likely to lead to their best interests being served.
[5] Bartholomew & Kelly Appeal number NA25 of 2000 delivered 14 August 2001
The formal applications and documents relied upon
Both parties submitted minutes of the orders sought by them at the commencement of the hearing. These orders are attached to these reasons for judgment as schedule one.
In a formal sense Ms Eddy relied on the following documents filed on her behalf:
i)Two affidavits of herself filed on 22 April 2005 and 27 May 2005 respectively;
ii)An affidavit of Mr F filed 22 April 2005.
Mr Weaver relied on the following affidavits filed on his behalf:
iii)An affidavit of himself filed 9 May 2005;
iv)An affidavit of his father, Mr W Senior filed 9 May 2005;
v)Two affidavits of Mr M filed on 9 May 2005 and 8 June 2005 respectively.
In addition to their affidavits, Ms Eddy, Mr Weaver, Mr F and
Mr W Senior gave oral evidence in these proceedings and each was extensively and rigorously cross-examined by counsel for the opposing party.
Mr M is a private investigator. He was retained by Mr Weaver to undertake surveillance of Ms Eddy whilst she attended work at the [omitted]. Mr M apparently secretly observed Ms Eddy attending the [workplace omitted] between 1 April and 9 April 2005 and again between 24 May 2005 and 2 June 2005. He took photographs of Ms Eddy and her motor car in the vicinity of the [workplace omitted].
He also reports that, due to an apparent lack of facility with his digital camera, he accidentally deleted other photographs he took of Ms Eddy. Ms Eddy’s counsel did not require Mr M to attend at court for cross-examination. From Mr Weaver’s point of view, the relevance of
Mr M’s evidence appears to relate to the extent of Ms Eddy’s hours of employment and his submission that those hours add weight to his argument that a shared care arrangement for the children is the most appropriate one.
Mr M’s evidence has been largely overtaken by events. Due to her pregnancy, Ms Eddy is no longer working. She does not plan to work for the foreseeable future. Accordingly, from a forensic point of view, it matters little what her hours of work were in the past and the future implications of those hours of work on the mooted shared parenting regime.
Finally both parties required Ms Hewett to attend at court for cross-examination. Her report was tendered into evidence. Due to the centrality of her evidence both Ms Lewis and Mr Noble wished to cross-examine her at length. Unfortunately this cross-examination could not be accommodated on 12 August but ran over into 24 October.
The evidence
The various documents outlined above and the additional oral testimony of the witnesses concerned together with a number of documents which were tendered in the proceedings form the formal evidence before the court. Findings in this case are made on the balance of probabilities, following my observations of the demeanour of each of the witnesses concerned. In what follows, statements of fact constitute findings of fact.
I am aware that it is a significant part of Ms Eddy’s case that
Mr Weaver engaged in serious criminal conduct against her on 16 May 2003 and in particular she alleges that he digitally raped her. These proceedings are not criminal proceedings. However, Ms Eddy is not estopped, as a consequence of the jury’s acquittal, from raising the issue again. The standard of proof in these proceedings is different to that in the criminal trial. The standard of proof is proof on the balance of probabilities. That remains so even whether the matter to be proved involves criminal conduct or fraud. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [6] the High Court said, in civil cases where criminal conduct is alleged:
“The most that can validly be said in such a case is that the trial judge be conscious of the gravity of the allegations made on both sides when reaching his or her conclusions. Ultimately, however, it remains incumbent on the trial judge to determine the issue by reference to the balance of probabilities.”
[6] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 172
Although in regards to the issue of whether or not the alleged rape occurred, I am bound by the civil standard of proof, I must also have regard to the factors mentioned in Briginshaw v Briginshaw[7]where Dixon J said as follows:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
[7] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362
Accordingly, in applying the civil standard of proof, I must bear in mind the gravity of the allegations which have been made and the consequences to Mr Weaver’s reputation which may follow.
(a) Background facts
Mr Weaver, for the sake of convenience referred to hereinafter as “the father” was born in 1960. He is a [occupation omitted], employed by his father in a family owned and operated business. He has not re-partnered since the parties separated. He currently lives in the former family home at [W]. It is next door to his parents’ home.
Ms Eddy, for the same reasons of convenience hereinafter referred to as “the mother” was born in Adelaide in 1969. She has qualifications as a hairdresser but stopped work in this field when [X] was born. More recently, she has worked in a [workplace omitted] as a sales assistant. She is not currently working. The mother met Mr F in June of 2003. He is from Melbourne. He moved to Adelaide in August of 2003. The mother and Mr F have lived together ever since. Mr F is employed as a [omitted].
The parties met in late 1995 and began to live together in July of 1996. They have never been married. Both children were born in Adelaide. The parties agree that they separated, for an extended period of time, from the end of 1999, until they reconciled in February of 2001. During this period, the children concerned resided primarily with the mother.
It is the mother’s case that, during their relationship, the father was physically violent towards her; verbally abusive; and unduly possessive.[8] This abusive relationship led to her becoming seriously depressed, which depression was diagnosed in mid 2000. The father denies ever having being abusive during the parties’ relationship and asserts the mother has invented these allegations since the parties separated and, in fact, her depression occurred much later.[9]
[8] See mother’s affidavit of evidence filed 22 April 2005 at paragraph 15
[9] See father’s affidavit of evidence at paragraph 113
It is the mother’s position that the parties separated in January of 2003, when she and the children left the [W] home. She asserts that, as a pretext to escape an unhappy situation, she told Mr Weaver that she needed “time away” because she was frightened as to how he might react to her desire for a separation. She began to live at a rented unit in [G] at that stage with [X] and [Y].
Following the mother’s change of address, it seems common ground that the father frequently visited the mother’s [G] unit and spent much time with the children. This seems to be the reason, for his assertion, that the parties did not separate finally until the so-called incident of
16 May 2003. Around this time, it seems the mother met Mr F on the internet. Following the “incident”, the father was charged with assaulting and raping the mother. As a result, there was no contact between the father and the children concerned for several weeks.
From late June of 2003, the parties discussed arrangements for
Mr Weaver to have some contact with [X] and [Y], via their respective solicitors. It was subsequently agreed that the father would see the children on alternate weekends from 10.00am on Saturday to 5.00pm the following Sunday and would take [X] to Auskick on Thursday afternoons. Later the contact was extended to alternate weekends, from the conclusion of school on Friday until the commencement of school the following Monday, together with half of all school holidays and special occasions. This agreement was not formally ratified by any court order.
As has already been indicated, the father’s trial proceeded before the District Court of South Australia in May of 2004. He was acquitted of raping the mother but pleaded guilty to slapping her, on one occasion. He was sentenced in respect of this assault in July of 2004. He received a suspended gaol term. I think I can accept from the sentence imposed, that the trial judge regarded it as a serious matter, although I have not read a transcript of the sentence.
The mother commenced these proceedings on 10 June 2004. It is her position that she felt compelled to do so because the father had proven himself unreliable in terms of returning the children at the particular times which had been earlier agreed between the parties. The father responded to the mother’s application on 28 June 2004. It was at this stage he raised the issue of the children residing with each of their parents on a week about basis. It is his position that, up until this stage, he had been effectively precluded from bringing his preferred application in respect of arrangements for the care of the children, because of the serious outstanding criminal charges against him.
On 28 June 2004, the parties entered into consent orders that saw the father having contact to the children from after school on Friday until before school the following Monday of each alternate weekend and which required that the children be exchanged, at the beginning and end of each contact period, at either their respective schools or between the mother and the maternal grandparents, in the absence of the father.
On 30 June 2004, orders were made in the District Court at Adelaide, with the consent of the parties, in respect of the division of their family assets. They are of no moment in these proceedings.
On 24 August 2004, the earlier contact orders were amended so that the father could collect the children, when their school was not appropriate, by attending at the mother’s home but be otherwise restrained from leaving his motor car or conversing with the mother at contact handovers. It seems that this arrangement has persisted until the present time.
On 3 September 2004, the court ordered that a family assessment be prepared in this matter. At the same time, each party was restrained from denigrating the other in the presence or hearing of the children. Some orders were also made for the father to have contact with the children during the October 2004 school holiday. On this occasion an order was made that directed the parties to “give primary consideration to the other of them” in the event that either needed “child care assistance”. This hardly felicitously drawn provision has incited rather than reduced controversy between the parties in the period since it was made. It being the father’s position that the mother has constantly breached the spirit of the order and the mother’s position that no suitable occasions for her to consider the father for child care have arisen.
On 29 November 2004, the father commenced contravention proceedings alleging that the mother had allowed Mr F to denigrate him in the presence of the children. On 11 March 2005 this contravention application came on for hearing before Federal Magistrate Lindsay. On that occasion, Mr Weaver consented to the dismissal of his application and agreed to pay Ms Eddy’s costs fixed in the sum of $154.00. Again not an occurrence likely to lessen tensions between the parties.
Unfortunately, the parties were unable to agree about arrangements for contact in the long school holidays of 2004/2005. As a result, it seems that the father arranged for the proceedings to be listed before the court on 13 December 2004. Orders had to be made by the court on this occasion, albeit with the consent of the parties, which regulated these arrangements. On this occasion, an injunction was issued restraining the mother from leaving the children unsupervised with her brother,
Mr E, on any overnight basis.
In November 2004, the mother and Mr F purchased the home in which they currently reside with [X] and [Y] in [S]. They continue to lived there until the present time and have no plans to move. The father believes [S] is in a lower socio-economic area than his home. He is critical of the mother’s neighbours. He believes his home environment is clearly preferable for the children.
On 16 March 2005, further orders were made by the court in respect of arrangements for the care of the children over the period of the Easter school holidays. Accordingly, it seems apparent, that since the mother commenced these proceedings, the parties have had frequent recourse to court proceedings to regulate arrangements for the care of [X] and [Y] between them. On one occasion, the father has felt compelled to bring contravention proceedings against the mother. An imprecisely drawn order, which relied on the co-operation of the parties to call on the other when he or she required a babysitter has resulted in no such co-operation, rather it has added to the tensions between the parties as the father believes the mother has disingenuously ignored the import of the orders.
Against this troubled background, I turn to consider the evidence of each of the parties and their respective witnesses, with more particularity.
(b) Ms Eddy
In general terms, I found Ms Eddy to be an honest and frank witness. She struck me as sensible and her evidence considered. There was nothing in her demeanour or in her answer to any particular question, which caused me to doubt her credibility. She is obviously a loving parent, who is devoted to securing [X] and [Y]’s best interests, as she sees them. She did not strike me as a vengeful or manipulative person.
In my view, it is a matter of some significance that, when she was at her tactically strongest point in these proceedings, namely when
Mr Weaver had been charged with her rape, she did not seek to withhold either child from having contact with Mr Weaver. Although harbouring a considerable degree of hostility towards him, Ms Eddy recognised that the children’s emotional well-being dictated that they should have on-going contact with their father, regardless of her feelings for Mr Weaver. This caused me to form the view that the mother is a person who is capable of behaving magnanimously. As a result, I found her to be an impressive witness.
It is a most significant element of the mother’s case that Mr Weaver is a violent and abusive person. The level of his violence and his denial of it, is in her description, tantamount to sociopathic. Ms Eddy has not called any independent witnesses to support her case. Mr Weaver strenuously refutes her allegations. Issues such as these are difficult to determine. Courts frequently accept uncorroborated testimony in family matters because so much of what happens in families occurs privately. In many instances, it is appropriate for a court to rely solely on the integrity of the witness concerned. In this case, I do accept that Ms Eddy is a witness of integrity. I prefer much of her evidence to that of Mr Weaver.
In particular, I accept that the relationship between the parties was an unhappy and abusive one and that the major protagonist of the abuse was Mr Weaver. It is important, I think, that the mother makes a concession that physical abuse of her stopped following the parties’ reconciliation in 2001. I do not believe it likely that the mother would consciously make such a concession if indeed she had concocted all of her evidence about violence and abuse in the relationship, as the father would have it.
I also accept that the mother was first diagnosed with depression in 2000 and suffered a loss of confidence and self-esteem as a result. No medical evidence has been provided in regards to the issue. However, it is axiomatic that an unhappy home situation would not assist with depression. I think it inherently unlikely that Ms Eddy became depressed because she herself was being “abusive” of Mr Weaver in 2003, as he asserts, around the time the parties separated. Presumably this refers to guilt Ms Eddy purportedly felt at ending the relationship. I also think it unlikely that Ms Eddy has “invented allegations of violence against me since separation in an attempt to justify leaving me and to justify restricting contact between me and the boys”[10] as
Mr Weaver would have it.
[10] See father’s affidavit of evidence at paragraph 113
I also accept that prior to the parties’ final separation, the mother was the parent who was more closely involved in providing the day to day care and nurture of [X] and [Y]. The father was engaged in full-time work during this period. It is also clear that this is the situation which has continued in the period since the parties separated, now a period of over two years. This is a significant matter.
Ms Eddy and Mr F purchased the home in which they presently live in [S] in November of 2004. [X] and [Y] share a bedroom. The house has a large yard. I do not believe anything other than that the house provides appropriate accommodation for children of the ages of [X] and [Y]. I think the father’s negative view of the mother and Mr F has caused him to embellish his concerns about the socio-economic and crime level in the suburb in question.
Currently both children attend [M] School in [G]. [X] is in Year 3 and [Y] is in Year 1. I have been provided with copies of both children’s most recent school reports.[11] There is nothing out of the ordinary in either of these reports. [X] is said to have “made significant improvements” and his “attitude and confidence in class” is said to have improved dramatically. [Y] is said to have made “steady progress with his learning”.
[11] See exhibit ‘F4’
Notwithstanding his report, Ms Eddy describes [X] as “an anxious gentle child” who displays some nervous behaviour. Mr Weaver agrees that [X] is somewhat sensitive but does not believe it is appropriate to describe him as being “anxious”. He bridles at the suggestion of anxiety.
In her oral evidence, the mother indicated that both [X] and [Y] loved their father and indicated her acceptance that Mr Weaver would never physically harm either child or expose them to any risk of harm. There is no dispute between the parties that Mr Weaver is paying child support at an appropriate rate for [X] and [Y]. At present, the monthly amount is $674.83. There are some arrears but those arrears are being paid. Ms Eddy also conceded that Mr Weaver paid for the children’s private school fees and for their sporting activities, particularly karate and football. The parties share the cost of providing the children’s school uniforms.
Until fairly recently, Ms Eddy was working as a shop assistant at a [omitted] in [S]. I accept that she was largely employed on a part-time basis and sought the employment through economic necessity. On occasions, particularly when her employer needed to have a hip replacement operation, she has worked more hours. There is nothing in the evidence before me to indicate that the care of the children has suffered in any way as a result of Ms Eddy working longer hours or that she has not made appropriate arrangement for the children to be cared for. At any rate, due to her pregnancy and intention not to pursue paid work for the foreseeable future, this is no longer an issue of pressing concern in this case.
Clearly, one of the most significant issues in this case, is what are the children’s wishes in regards to future arrangements for their care, particularly the so-called “fifty/fifty” arrangement. It is the mother’s position that both [X] and [Y] are well aware that their father wants the “fifty/fifty” arrangement but they are both opposed to it.[12] It is also
Ms Eddy’s impression that both children are frightened to indicate this to their father, as they fear he will become angry. In cross-examination, Ms Eddy deposed that she believed [X] and [Y] were “comfortable” with her and were more likely to confide in her than the father, whom she described as a “powerful person”. Ms Eddy’s impressions in this regard accorded with my own. In all the circumstances of this case, I believe I would be imprudent to discount easily Ms Eddy’s view as to the children’s wishes in this matter. She struck me as a sensitive and insightful parent, certainly not a manipulative or disingenuous one.
[12] See mother’s affidavit of evidence filed 22 April 2005 at paragraphs 56 and 58
Given my findings in this regard, I accept Ms Eddy’s evidence that after contact with his father, [X] displays some behaviour, which might be described as being anxious. He twitches, coughs and bites his nails. In line with Ms Hewett’s recommendations, it would be Ms Eddy’s preference that [X] engages in some therapeutic counselling. She has made enquiries of a Doctor B in this regard.
Ms Eddy expressed some surprise that Ms Hewett was of the view that [X] would like to spend an additional one or two nights with his father each week. This was not a matter that [X] had previously raised with her. I accept that this is so. Ms Eddy indicated that, in appropriate circumstances, she would not be adverse to such an extension of contact. In her words it was about what “the boys wanted”. In answer to a suggestion that she would be upset at such an extension, Ms Eddy denied that this would be the case. In my assessment, I do not believe that it can be said that Ms Eddy is unduly possessive of either of the children and wishes to exclude Mr Weaver as a meaningful influence in their lives.
In my view, the contrary is the case. Both children are evidently very keen on sport, activities which Mr Weaver also enjoys. Ms Eddy has shown herself amenable to the children engaging in sporting activities with their father. In addition, as I have already indicated, in the period following charges being laid against the father, Ms Eddy was agreeable to contact, albeit not the contact Mr Weaver would have preferred.
Ms Eddy was cross-examined about her current child rearing practices. It was suggested that, in the past, she had allowed inappropriate people to collect the children from school; had failed to pass on messages from the father to the children; and provided an inappropriate diet for them. Ms Eddy is not a perfect parent. She conceded that she smokes, which is something she would prefer not to do. She also indicated that at times the children were given chips and other treats. However, there was nothing in Ms Eddy’s presentation to the court or in her answers, which caused me to believe anything other than that the standard of care she provides to [X] and [Y] is a suitable one.
(c) Mr Weaver
Mr Weaver was an assertive and confident witness. It was readily apparent to me that he is convinced of the righteousness of the position he has adopted in these proceedings and will consider no outcome as appropriate apart from the one he seeks. In his estimation, such an outcome is fair” to parents and to children. In my assessment,
Mr Weaver is more influenced by what he perceives is likely to be a fair outcome to him, as he sees it, rather than by concerns for what is likely to be in the children’s best interests. For obvious reasons, his evidence is highly subjective. He has no facility to see the case from either Ms Eddy or Mr F’s point of view. I consider it likely that he would not easily tolerate anyone who had a different view to his in a matter he considered important.
Mr Weaver is currently emphatically opposed to Ms Eddy and Mr F and has little regard for their views regarding appropriate arrangements for the care of [X] and [Y]. In his estimation, Mr F has no role with [X] and [Y] and no relationship to them, apart from, at best, being a friend. It is significant, I think, that Mr Weaver referred to his house in [W] as being the children’s “real” home.
In his evidence, in part in response to the environment of the court room, Mr Weaver somewhat begrudgingly conceded that he had confidence in Ms Eddy’s parenting, although he qualified this concession with the comment that she “needed to improve a little” as a parent. This did not fit easily with his numerous and stringent criticisms of Ms Eddy as a parent in his affidavit material. In my assessment, Mr Weaver’s view of Ms Eddy is essentially negative. In his material he alleges that Ms Eddy “brain washes and coerces” the children;[13]leaves the children with “virtual strangers”;[14] alleges her home in [S] is in a “lower socioeconomic area with a high crime rate”;[15]fails to pass on his messages to the children;[16]fails to provide a proper diet;[17]fails to provide proper clothing for the children;[18] and does not provide suitable activities for them.[19]
[13] See father’s affidavit at paragraph 13
[14] (supra) at paragraph 15
[15] (supra) at paragraph 19
[16] (supra) at paragraph 30
[17] (supra) at paragraph 40
[18] (supra) at paragraph 41
[19] (supra) at paragraph 42
Apart from his allegations in regards to these matters, the father failed to provide any corroborating evidence in regards to these various matters. As I have already indicated, I found the mother to be a more credible witness than the father. I believe that the vehemence of
Mr Weaver’s dislike of Ms Eddy has robbed his evidence of any significant level of objectivity. There can be no doubt that he regards both Ms Eddy and Mr F as “the enemy”. In such circumstances, he is likely to believe anything which reflects adversely on their credit, regardless of the reliability or otherwise of the source of that information. My impression of Mr Weaver is that he views these proceedings as the likely start of a long struggle to achieve what he believes are his true entitlements.
It is Mr Weaver’s evidence that he was extensively involved in the care of the children, prior to the parties’ separation. I believe this assertion is against the weight of the evidence in the case, particularly given
Mr Weaver’s evidence as to the ages at which the children reached a number of significant developmental milestones. Ms Hewett, the expert in the matter, believed his evidence in regards to matters such as when the children began to walk and became toilet trained was unlikely.
It seems to me to be more likely that the parties divided their responsibility for the children along conventional lines – the father being the main financial provider and the mother providing the bulk of the “nuts and bolts” parenting. That is not to say Mr Weaver was an absent father. He has clearly been involved with the children in many areas, particularly recreational ones. In addition there is nothing to indicate he is not able to meet the children’s physical needs. He is a good father in these regards.
Mr Weaver continues to live in the former family home at [W]. This home provides comfortable accommodation for [X] and [Y]. Undoubtedly both children are very familiar with it. It is located next door to the children’s paternal grandparents’ home. Mr Weaver works from his parents’ premises. I accept that he enjoys flexible hours and would be able to change his hours to suit the requirements of the children, particularly if the shared parenting regime came about.
Mr Weaver is very interested in sport and physical fitness. These are interests, which he wishes to inculcate into [X] and [Y]. I accept that he is an interested and devoted parent in regards to the children’s sporting interests. I have no reason to believe anything other than that he deeply loves both children. As I say, there is nothing in the evidence before me to indicate anything other than that he is more than capable of providing for the children’s daily needs.
The circumstances surrounding the parties’ separation, particularly in May of 2003, can only be described as traumatic and unfortunate. Currently, the relationship between the parties is one characterised by antipathy and hostility. Ms Eddy has no intention of ever communicating directly again with Mr Weaver. For his part, Mr Weaver views Ms Eddy as vindictive, untruthful, amoral and generally unreliable. In his view, she is prepared to stoop to anything to besmirch his name and frustrate his intentions. This includes making vindictive allegations against him and attempting to manipulate [X] and [Y]. I believe that it is unlikely that either party will change his or her view about the other in the foreseeable future.
(d) The allegation of rape
It is not the role of these proceedings to critique the criminal trial in which Mr Weaver was the accused. The nature of the enquiry in these proceedings is fundamentally different to that involved in the criminal trial, as is the standard of proof. That is not to say the allegation is irrelevant to these proceedings or that the jury’s acquittal is to be taken to have conclusively determined the truth of the matter one particular way for the sake of these proceedings.
In the proceedings before me, the evidence in respect of the allegation of rape was limited to the witnesses themselves. The only item of evidence, extraneous to either of the parties themselves, was a booklet of photographs of the injuries allegedly suffered by Ms Eddy in the incident. I am not qualified to interpret those photographs.
In particular, I did not have access to any record of interview between Mr Weaver and the police; any forensic evidence which may have been available at the trial; or any medical evidence. In the criminal trial,
Mr Weaver elected, as is his entitlement, not to enter the witness box and give evidence in his own defence.
In his affidavit material, Mr Weaver deposed as follows:
“Ms Eddy complained to the police that I had raped her [she] rehashes the details of her allegation in her…affidavit. I do not propose to give my account of the events of that day. They are irrelevant to these proceedings. The fact remains that I was acquitted by a jury of these charges. Ms Eddy’s allegations against me were unfounded and vitriolic.”[20]
[20] See father’s affidavit of evidence at paragraph 58
I do not believe that it can be said that Ms Eddy’s allegations are irrelevant to these proceedings. Both parties rely on the matter, but in different ways. From Mr Weaver’s position, Ms Eddy has lied both in the criminal trial and in these proceedings. As such, the court can have little confidence in her evidence as a whole and must reach the conclusion that Ms Eddy puts her own need for vengeance against
Mr Weaver above the emotional needs of the children, in the sense that she would make a malicious complaint against their father, which had the potential to remove them from his influence. From Ms Eddy’s point of view, the matter has relevance because it demonstrates that
Mr Weaver is not an appropriate role model for children of the ages of [X] and [Y], in that he would seek to violently abuse the children’s primary carer.
For these reasons, in my view, the allegation of rape is a most significant matter in these proceedings. I do not accept that the matter is irrelevant, as Mr Weaver would have it or that I can necessarily reject Ms Eddy’s version of events because Mr Weaver was acquitted by the jury.
In her evidence before me, Ms Eddy consistently maintained her account of events. I did not disbelieve her. Similarly, Mr Weaver made no concession that he had raped Ms Eddy, as she alleged. It would be unusual if he had done so. Given the gravity of Ms Eddy’s allegation and due to the fact that there was no evidence to corroborate it in the proceedings before me, I do not believe that I can make a positive finding one way or the other in regards to the issue of whether or not Mr Weaver raped Ms Eddy, regardless of my view of the mother’s likely veracity.
However, I do not think that is the end of the matter. The allegation and its consequences, for both parties, continue to reverberate throughout the parties’ parenting relationship. The trauma of the criminal trial; the expense of it from Mr Weaver’s point of view; the dissatisfaction
Ms Eddy is likely to feel at the trial’s outcome; Mr Weaver’s public protestations that he was falsely accused; these are hardly matters on which it is likely that the parties will be able to build a parenting relationship based on mutual respect and trust. In such circumstances, it is hardly surprising that the parties currently hold a jaundiced view of each other. In my estimation, the father is likely to find it more difficult to conceal his disdain for the mother from the children than the mother is in the same circumstances.
In this regard, I consider the evidence of Mr M, the private investigator, has some significance. The father retained Mr M in an attempt to prove Ms Eddy was a liar. The nature of the lie, in respect of which Mr Weaver hoped to catch Ms Eddy out, was not a particularly significant matter in my view. It concerned Ms Eddy’s working hours. She cannot be regarded as a wealthy person. Like many parents, she needs to work to support herself and family. Like many other parents, in the past, she has had to juggle the responsibilities of being a parent with being a member of the paid workforce. In my view, there is nothing unduly sinister in this. However, Mr Weaver felt driven to retain Mr M to keep Ms Eddy under covert surveillance. This, in my view, indicates the level of mistrust he has for her and demonstrates that these current proceedings have somewhat of the flavour of a vendetta, as far as Mr Weaver is concerned. Again, in my view, this is a matter which goes directly to whether or not a shared parenting regime is ultimately workable in this matter.
(e) Mr F
Mr F was pleasant and straight forward witness. Although obviously loyal to Ms Eddy, I do not consider that he had an axe to grind in these proceedings. To the contrary, he seemed capable of maintaining objectivity in what is undoubtedly a very difficult situation from his point of view. My impression of him is that he is anxious to avoid embroiling himself in the dispute between the parties or in any way increasing the intensity of the heat it generates. In this regard, it is to his credit that he has decided to withdraw from attending the children’s sporting activities because he feels that it will put [X] and [Y] under “too much pressure”.
Mr Weaver and Mr F have never directly conversed with one another although they are both well aware of who the other is - they have seen each other on many occasions. A gulf of hostility looms between them. No doubt the children are aware of the artificiality of this situation and the tension implicit in it. I accept Mr F’s account that [Y] and [X] have been discomforted by the fear that there may be some confrontation between Mr Weaver and Mr F in the future. Mr F’s withdrawal from sporting occasions is a practical way of diffusing this tension. In my assessment, Mr Weaver is the person who is driving the animosity between him and Mr F. As I have already indicated, although Mr F shares a home with the children concerned, it is Mr Weaver’s view that he has no significant role to play in their lives. It seems to me that
Mr Weaver goes to some lengths to indicate his view in this regard to the children concerned.
Much of Mr F’s oral evidence was taken up with the suggestion that he had consistently and inappropriately physically dealt with the children and frightened them. He had little forewarning of these serious allegations against him, which he largely met with magnanimous incredulity. In his evidence, Mr F described a practice whereby he jumped out from behind a door and playfully frightened [X] and [Y]. What he described was an innocent game, which I am satisfied the children enjoy. In my view, there is nothing sinister in any of the interactions Mr F has with the children.
I accept Mr F’s evidence that he has no desire to supplant Mr Weaver’s role as [X] and [Y]’s father. In Ms Eddy and Mr F’s household the children refer to Mr F as “Mr F”. In his descriptions of his interactions with [X] and [Y], it was however clear to me, that Mr F has a warm affection for both children. I accept that he plays football and cricket with them in the backyard. Ms Eddy has no hesitation in entrusting the children to his care from time to time. In the face of objections from Mr Weaver, he no longer collects the children from school.
In my view, Mr F is clearly a significant person in [X] and [Y]’s lives. He is their mother’s partner. He shares a household with the children. He is the father of their soon to be born half sibling. The antipathy
Mr Weaver feels for Mr F is readily apparent to [X] and [Y]. I am concerned that Mr Weaver is intent on gathering whatever evidence he can to undermine the relationship Mr F has with [X] and [Y]. He seems intent on driving the discord between the two households. My impression of Mr F is that he is likely to be the more conciliatory of the two men.
In this regard, I am concerned that Mr Weaver has a propensity to view innocent events and statements attributed to Mr F as being somehow sinister or involving slights against him. The contravention application of 29 November 2004 is an example of this. In my view, Mr Weaver over reacted to an innocent misunderstanding. The parties did not have a ready facility to sort out how the children would be taken to cricket. The difficulty ultimately led to a flawed contravention application and suggestions by Mr Weaver of personal denigration. I accept Mr F’s evidence that he has never told [X] not to listen to his father or suggested that Mr Weaver speaks nonsense to [X]. It seems ludicrous to suggest that the words “Jack Daniels” in the context in which the expression was used by Mr F constitutes some form of provocation or incitement against Mr Weaver. The incident, in a small way, once again underlines the gulf which exists between the father and the mother’s households and the lack of viable machinery to bridge that gulf.
(e) Mr W Senior
It is the father’s position that, since shortly after the parties separated, both children have expressed a preference to live with each of their parents on an equal basis. In Mr Weaver’s contention, these proceedings represent a “journey of getting what [the children’s] wishes are.” It is Mr Weaver’s position that neither [Y] nor [X] wished to leave the [W] home when their parents separated. As I have already indicated, Mr Weaver is of the view that this property represents the children’s “real home”.
However, Mr Weaver denies that he has constantly quizzed the children about their wishes in this regard. In his expression, their comments in this regard come “unsolicited and out of the blue.”[21] It is Mr Weaver’s evidence that the children have been consistent in these views since at least May 2003. At this time, [X] would have been about six years of age and [Y] would have been about four and a half. It is Mr Weaver’s position that he would not have pursued these proceedings, with the vehemence he has, if he had any doubts about the genuineness of the children’s views in this regard. He is supported in his views by his father, Mr W Senior.
[21] See father’s affidavit of evidence at paragraph 11
Mr W Senior is sixty eight years of age. He has been married for nearly fifty years. Besides the father in these proceedings, he and his wife have two other children. He is a grandfather nine times over. I have no doubt that he is a devoted family man and a successful businessman. He has been operating his business for about seventeen years. Undoubtedly he is a person of good character. He is also closely aligned with the father and shares his negative view of Ms Eddy. Given the unfortunate circumstances of the parties in these proceedings, it is hardly likely that he would not feel some animosity towards Ms Eddy.
I accept Mr W Senior’s evidence that he and his wife have a close and loving relationship with [X] and [Y]. For many years they lived next door to the children and had much to do with them. Obviously, during the father’s periods of contact, they also spend much time with the children. Mr and Mrs W Senior have often cared for the children in the past. Mrs W Senior regularly cooks meals for both boys. Mr W Senior shares his son’s enthusiasm for football.
Mr W Senior confirms that he is able to provide the father with flexible hours of work, which can be adapted to the needs of the children concerned in this matter and deposes that he and his wife are readily available to assist in [X] and [Y]’s care, if required. I accept the truth of this evidence.
Mr W Senior also confirms the father’s position that both children concerned have been consistent in indicating to him and his wife that they “wanted an equal arrangement [in respect of their care] because it was fair”[22]. The children have apparently expressed such a view “many times”.
[22] See Mr W Senior’s affidavit at paragraph 36
Although I accept that Mr W Senior is a truthful witness, I am somewhat troubled by his evidence that the children expressed this wish many times and asserted that they wanted such an arrangement because it was fair. I am troubled because these expressions and intentions seem to be more in accord with the apprehension and desires of the father and Mr and Mrs W Senior. I view it as unlikely that both the children would have spontaneously provided such a view on many occasions. It seems more likely that it would be a topic that both children would regard as being of some sensitivity, particularly as they were well aware of their father’s views about the matter.
Ms Hewett’s report was released to the parties in January of 2005.
Mr W Senior read the report. It is his evidence that after the report was released to the parties, he noted that [X] was becoming increasingly troubled and was unwilling to “look me in the eye”. Mr W Senior describes a child who was “twitching and nervous, coughing a lot and clearing his throat.” As a result of these matters, Mr W Senior decided he would have what he described as a “little chat with [X]”. This conversation occurred in Mr W Senior’s office.
Mr W Senior did not keep verbatim notes of the conversation but deposes that some days later he sat at his computer and wrote down what he remembered of the conversation. In his affidavit, he records the conversations as follows:
“Q:[X], if its OK, Papa would like to talk to you and ask you a couple of things.
[X]: uh-huh
Q: [X], do you love your Mummy and Daddy?
[X]: Yes
Q:You know the assessment that you and [Y] went to with Mummy, Daddy, [Y] and Mr F?
[X]: Yes
Q:Do you remember telling Nana and Papa that you wanted to be with your Mummy and Daddy 50:50?
[X]:Yes, that is what [Y] and I both want to have. We want to share Mummy and Daddy.
Q: Do you know that the lady has not written that in the report?
[X]:I know Papa. But Mummy told me what I had to say instead of 50:50.
Q: Even though that is not what you and [Y] want?
[X]: Yes, it is what Mummy told me to say to the lady.
Q: That was not very nice or fair to you and [Y], was it?
[X]: No
Q: Now, Papa knows what has been worrying you so much.
[X]: Yes (nodding his head and looking emotional)
Q:[X], the lady reported that you liked going to the bowling, pictures and time zone with Mummy, [Y] Grandma and
Mr F, but it didn’t mention you and [Y] going with Daddy.
[X]:What? That is not true Papa, Daddy is the one that takes us out all the time. Mummy doesn’t take us out very much at all”[23]
[23] See Mr W Senior’s affidavit at paragraph 38
I am troubled at the context in which this conversation took place.
It is undoubtedly the case that there is an inordinate amount of tension between the paternal and maternal aspects of [X]’s family.
Mr W Senior is clearly aligned in that tension and has a clear interest in the outcome of these proceedings. He cannot be regarded as either an impartial or dispassionate broker in the proceedings. Nor does he have any particular expertise in regards to assessing the responses of children to emotionally stressful experiences, other than the experience of being a father and grandfather. In my view, he is placed in a very different position to that of Ms Hewett.
I do not think that it can be said that the particular conversation
Mr W Senior had with [X] was spontaneous. Mr W Senior initiated the conversation and I believe that it would have been clear to [X] that from his (Mr W Senior’s) point of view, it was a highly significant conversation. [X] was placed in a difficult position. He had no wish to incur the disapprobation of either his father or paternal grandfather. He was asked a number of leading questions. In my view, the answers, which he purportedly gave are, on balance, unlikely to be an indication of coaching of him by Ms Eddy prior to the preparation of the family report. Nor, in the emotionally charged circumstances of the situation, do I think they are an unequivocal indication of [X]’s views in the matter. I am concerned that either consciously or unconsciously, Mr W Senior has allowed himself to manipulate [X] to the view which accords with his own. I am confirmed in this view by Ms Hewett’s comments on this particular passage of the evidence.
Much of the father and Mr W Senior’s evidence, on 9 June 2005, was taken up with an examination of the purported disclosure [Y] had made first to his father and then to Mr W Senior that Mr F had hurt him and been nasty, which disclosure was apparently later confirmed by [X]. Both the father and Mr W Senior were adamant that the children were sincere in their report and they (the father and Mr W Senior) each responded appropriately by making a complaint at the local police station. This complaint resulted in both children apparently being interviewed.
I have not viewed any of the material, which the parties subpoenaed in respect of the issue. However, it is significant that Mr Weaver now accepts that Mr F has not behaved inappropriately towards the children in this matter. I do not know if Mr W Senior shares this view. However, in my view, the incident shows what fertile ground the conflicted circumstances of the parties provide for unfounded rumour and innuendo to be given substance. It heightens my concerns that, as with the alleged incident involving Mr F, both the father and Mr W Senior have allowed their highly subjective views of what is likely to be in the children’s best interests to colour their conversations with [X] and [Y] in regards to the question of where they wish to live and both are unaware of their ability to influence the children to their own particular views.
(f) Mr E
Mr E did not give evidence in these proceedings. I know very little about him, apart from the fact that he is Ms Eddy’s brother and
Mr Weaver does not believe that he is an appropriate person to have any interaction with either [X] or [Y].
The reasons for this is apparently that Mr E was charged, may years ago, with some form of indecent dealing with one of his daughters, now aged ten. The police apparently did not proceed with the charge and Mr E is now having unsupervised contact with the child concerned. Mr Weaver does not know anything about the matter apart from what he has heard from others. As I have already indicated, I believe
Mr Weaver has a propensity to think the worst of any matter which may potentially impact upon Ms Eddy.
For her part, Ms Eddy does not believe that it is possible that her brother behaved inappropriately towards one of his children. In the circumstances of this case, it is practically impossible for me to assess the degree of risk Mr E may pose to either [X] or [Y]. However, I do not believe that Ms Eddy would willingly expose either child to any serious risk of harm. She has indicated that she would be prepared to give an undertaking to the court that she would not leave either [X] or [Y] in Mr E’s care.
(g) The family assessment and the evidence of Ms Hewett
The family report in this matter was prepared by Roxanne Hewett.
Ms Hewett is a clinical psychologist. She holds a bachelor of arts degree with honours and a master’s degree in clinical psychology.
She obtained her undergraduate degree in 1982 and her master’s degree in 1986. Currently she is in private practice and has been for the last eight years. Prior to this time she was employed as a psychologist by a number of government agencies, primarily working in cases pertaining to children and their welfare. She has regularly been asked to prepare family assessments for this court and the Family Court. Over the past eight or nine years, she estimates that she has compiled literally hundreds of such reports.
As a result of her experience over a number of years, I accept that
Ms Hewett has gained expertise in assessing children and their relationships with their parents, particularly in the context of litigation and in circumstances where there is a high degree of dispute between the parents concerned. I found her report to be thorough and well considered. Ms Hewett was extensively cross-examined over a number of hours. As a result, her opinion and methodology in this case were thoroughly scrutinised. I found her evidence to be useful and persuasive. As a result, I largely accept her evidence.
Ms Hewett accepted that her report must be regarded very much as a “snap shot” in time. She interviewed the children concerned and observed them with each of their parents in mid to late December of 2004. Clearly, a considerable period of time has elapsed since she assessed the children concerned. She acknowledged that, given the ages of both [X] and [Y], a period in excess of six months was a considerable period of time, so far as their intellectual and psychological development was concerned. It is also the case that a number of significant events have occurred, involving the children, in the period since Ms Hewett made her assessment. Among these are the suggestion that Mr F has mistreated the children, which resulted in them both being interviewed by police and the conversation between Mr W Senior and [X], in which [X] purportedly resiled from his view that he wished to live predominantly with his mother and indicated that he had reported to Ms Hewett what his mother had told him to say.
Accordingly, Ms Hewett recommended some caution in the court to readily expanding contact arrangements and certainly was pessimistic about the viability of a shared care arrangement. She was unwavering in her view that such an outcome would not be in the children’s best interests. She reiterated her opinion that the children’s strongest attachment relationship was with their mother. She was concerned that both children, but particularly [X], had some level of apprehension regarding their father, particularly in regards to expressing any opinion which might be contrary to his and from her perception, given the trenchant criticisms Mr Weaver had of Ms Eddy, it was likely that either consciously or unconsciously, Mr Weaver might attempt to undermine the central relationship in the children’s lives which they had with their mother. These were additional factors, which in
Ms Hewett’s opinion, militated against a shared parenting arrangement.
Ms Hewett was also unwavering in her view that it was likely to be of benefit to [X] to have some form of therapeutic counselling. She did not concede that there was any danger in sending an intelligent child off to such counselling, if it was appropriately handled by the parents concerned and the counsellor chosen was an appropriate and sensitive one. In particular, she thought it unlikely that the child concerned would feel stigmatised by being sent to a counsellor.
As I indicated at the outset of this section of the reasons for judgment, I view Ms Hewett as an insightful, experienced and sensible witness. Her evidence was thoroughly tested through cross-examination. There was nothing in her answers in cross-examination, which caused me to doubt the essential validity of her report and its recommendations. Her views about the family dynamics in this matter accord with my own.
Section 68F(2) factors – determining the best interests of the children
(a) The wishes of the children
This is clearly a central issue in this case. The parties have very different views about what are the true wishes of both [X] and [Y] in this matter. Mr Weaver asserts that both children have consistently stated, since the parties separated, that they wish to have a shared care arrangement. Ms Eddy, supported by Ms Hewett, asserts that the children’s preference is for the current regime to remain or, at best, that there should be a gradual increase in the level of contact between the children and their father.
The relevant criterion in s.68F(2) enjoins the court to consider any wishes expressed by the children concerned and give weight to those wishes according to the degree of maturity of the child concerned, his or her level of understanding of the issues involved and any other factor which appears relevant. In this case, neither [Y] nor [X] can be regarded as mature children. [X] is eight years and six months old, [Y] is nearly seven. I am, however, satisfied that both children have a significant appreciation of the issue concerning them which currently confronts the court.
It is apparent that [X], in particular, is well aware of his father’s preferred outcome in these proceedings. It is also clear to me that he is somewhat torn in his loyalties between the parties. I also accept that both children appreciated the significance of their respective interviews with Ms Hewett. I do believe that there is any cogent evidence to indicate that Ms Eddy either consciously or unconsciously attempted to influence the children, in what they reported to Ms Hewett. In those circumstances, Ms Hewett’s report and her view of the children’s wishes assumes some significance. Clearly the children are young and the conflict between their parents places them in a difficult position. However, that is not of itself reason to disregard any wishes expressed by the children.
In H v W[30], a decision of the Full Court, Baker J summarised a body of psychological literature relating to children’s wishes and found that the research indicated as follows:
“…that children from age 7 are capable of expressing a choice between parents and of evaluating the respective environments which each has to offer. The weight to be given to these wishes will depend upon the children’s cognitive age and level of maturity in each particular case.
The research supports a rebuttable presumption that children of the age of 7 are capable of making a considered decision, a decision in which reason is employed. Having said that however, one must never the less be certain that the child’s wishes are free from the influence of others and that the child possesses a sufficient level of maturity to formulate a soundly bases wish.”
[30] H v W (1995) FLC 92-598 at page 81,966
In H v W, Baker J made it clear that he was not advocating that a trial judge should automatically act upon the wishes of a child, since the court’s duty is to act in the best interests of the child. He said that the goal was to take the wishes of children seriously, by giving them careful detailed consideration, not merely regarding them in a token manner or being dismissive of them.
In R & R: Children’s Wishes[31], the Full Court of the Family Court said as follows:
“There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.”
[31] R & R: Children’s Wishes 25Fam LR 712 at 724
In this case, I have the benefit of a comprehensive report from
Ms Hewett, detailing what she believes [X] and [Y]’s wishes to be.
I have already indicated that I found Ms Hewett’s report to be useful and persuasive in this case. I think her view is likely to be the most reliable means of ascertaining the children’s wishes. Accordingly, I am satisfied that both children wish to continue to live predominantly with their mother and have regular contact with their father.
I am somewhat concerned that [X]’s indication that he would want to spend an extra night or two with his father from time to time may be an attempt, on his part, to mollify his father or at least strike some compromise between the competing positions of his parents. I reach this conclusion because of the concerns [X] expressed to Ms Hewett at the prospect of his wishes becoming known to his father, through the agency of her report. Clearly, it is an issue, which troubles [X]. Accordingly, the issue has to be approached with some caution. However, I am satisfied that it is his predominant wish to remain living, in the main, with his mother. Given his age and understanding of the issues involved in the matter, in my view, this wish must be given considerable weight, notwithstanding his comparatively tender years.
[Y] is about eighteen months younger than [X]. Necessarily his wishes must be less influential with the court than those of his older brother.
It does seem however that his wish is substantially the same as that of [X].
(b) The nature of the relationship between the children, their parents and other significant people
The children concerned have a warm and loving relationship with both their parents and indeed their paternal grandparents. Undoubtedly,
Mr and Mrs W Senior have been closely involved in caring for [X] and [Y] over many years. I also accept that the children have a close and appropriate relationship with Mr F. This latter relationship is likely to grow in significance after Ms Eddy is delivered of the children’s half sibling and, as a result, Mr F is more closely fixed into their family unit.
I accept Ms Hewett’s evidence that the children’s relationship is “possibly more relaxed” with their mother. This accords somewhat with my view that she has been more involved with providing for their care, on a day to day basis, from the date of their respective births and certainly since the parties separated. I also accept that [X] is somewhat worried about incurring his father’s displeasure, particularly if he ([X]) indicates something of which his father may not approve. It seems to me, at this stage of their development, both children find it easier to confide in their mother. This too speaks of a warmer, more intimate relationship with her and lend support to Ms Hewett’s view that, “[X] and [Y]’s emotional needs will be best met by remaining primarily in their mother’s care…”. It would also seem logical that the children’s more emotional intimate relationship with their mother, at this stage of their development, drives their wishes in this case.
Mr Weaver wishes to be involved, as closely as possible, in every aspect of the children’s daily lives. At present, he plays a leading role in their sporting activities, which are of great importance to him and to them. The emphasis of his evidence is that he does not want to be confined to a somewhat distant role as a “weekend” or “holiday” parent, who is divorced from the day to day reality of his children’s lives – in terms of such matters as homework; occurrences at school; bedtime; and like matters. In his view, this objective is likely to be best achieved by the children spending strictly equal periods of time with both him and Ms Eddy. In this way, both parents can have an equal influence in the development and care of the children concerned. As he says, this is “fair” to the children, presumably because one parent will not have a superior role to the other.
Ms Hewett could see merit in the father’s position. In her view, in the best of all possible worlds, such a shared care arrangement is likely to be the best one for the children of separated parents. Ms Hewett could see the benefit of the children having a “balanced” view of both their parents, seeing them in both “fun” and more workaday circumstances.
The central issue in this case is whether the present circumstances of the parties are such that they will support this optimal arrangement for the children, without unwittingly exposing them to the possibility of emotional harm. It is essentially Mr Weaver’s position that, once the court has made a finding that the children have a significant relationship with him, it is illogical for concerns about communication difficulties and tensions between the parties to be given pre-eminence, because whatever arrangement is made, be it a 4/14 fortnight or a 7/7 fortnight, these difficulties will be in existence and the children will have to move between their parents’ households with the same level of frequency. Having posed the question, it is I think appropriate to consider it under the next relevant criterion.
(c) The likely effect of any changes in the children’s circumstances
The children have been living predominantly with their mother for well over two years. It is a significant period of time. The past two years, certainly since May of 2003, have been traumatic for all concerned. The children have had to deal with the obvious hostility between the parties; the fact that their parents do not converse with one another; and the father’s significant level of antipathy for Mr F, a person whom they experience as being “nice”. Notwithstanding these matters, the children seemed to be progressing quite well, apart from [X]’s reported level of anxiety. Certainly, there is no specific evidence that they are failing at school.
In my view, the arrangement preferred by the father would represent a significant departure from what is a long-standing arrangement, which seems to have suited the children. The abrupt imposition of the shared care arrangement must be regarded as somewhat experimental in nature and, as a result, in my view, the potential outcome problematic. In all the circumstances of this case, I do not think that it can be guaranteed that the children will easily adapt to such a shared care arrangement, particularly given the high levels of conflict between their parents ( and others involved in their care), which is unlikely to subside for the foreseeable future.
I think it an unduly simplistic analysis to assert that the difficulties between the respective households and the problems these difficulties represent for the children concerned, will remain constant whatever the care arrangements may be. It is, as Ms Hewett points out, axiomatic that, for the children concerned, there is a quantitive difference between a 4/10 and 7/7 care arrangement per fortnight. Given the tensions they are likely to perceive moving between their parents’ two households, which are in significant conflict, the former, although potentially difficult for them to accommodate, is likely to provide them with a greater sense of security and stability, particularly if this is both their preference and where their predominant attachment lies.
For obvious reasons, Mr Noble points to the similarities between the households rather than the differences, as matters in support of his client’s preferred outcome. It seems likely that the parties have a similar view about how the children should be disciplined. I also accept they have similar aspirations for the children – both want them to have the best possible education and be involved in sporting activities. However, they also disagree about many fundamental matters. The father asserts the mother does not feed the children properly; lets them wear inappropriate clothing; and is not sufficiently encouraging of them to be engaged in physical play. The evidence to date indicates that the parties are not able to reach a compromise in respect of these issues. Rather, in the semi-public forum of these proceedings,
Mr Weaver has seized the opportunity to criticise Ms Eddy.
For her part, Ms Eddy is critical of Mr Weaver for allowing [Y] to sleep in his bed. It is a matter of concern to her. Mr Weaver believes it is appropriate given the child’s need for emotional connection with him. Again, the parties are unable to discuss this issue together and agree upon on some compromise or strategy to deal with it. Rather, the issue festers away, from both their points of view.
Up to this point, it seems to me to be clear that the parties have amply demonstrated that they would have grave difficulties in implementing a fifty/fifty living arrangement for [X] and [Y]. Certainly, Ms Eddy would be greatly aggrieved if such an arrangement was forcibly imposed upon her and, in such circumstances, I consider it unlikely that she would be supportive of it. At the present time, the parties simply do not have a firm basis of trust and co-operation, on which such a shared parenting regime could be constructed. In my view, it would be artificial in the extreme for the court to impose such an arrangement and there would be grave risks to both children’s adjustment in so doing. It is naïve, I think, to assert that the current communication problems between the parties are so bad and the children so accustomed to them, that a shared parenting arrangement would not make any difference to them and to their level of adjustment in a practical sense. Alternate weekends are radically different in quality and duration to alternating weeks.
(d) The practical difficulties associated with contact
The parties live in proximity to one another in suburban Adelaide. It is true they have been managing contact handovers for some time without apparent signs of rancour between them. There is no suggestion that Mr Weaver has ever breached the domestic violence order applicable to him and the mother. However, the parties’ relationship cannot be regarded as an easy or seamless one. They do not directly converse with one another. At the children’s sporting activities, they sit at opposite ends of the field or pool. Ms Eddy cannot tolerate the prospect of being in the same room as Mr Weaver, whilst the children do their karate.
As the children grow older, there are likely to be more rather than fewer practical considerations arising from the children living in two households. Books for homework and items of sporting equipment are likely to be left behind. The children’s regimes for involvement in extra-curricular activities are likely to become less rather than more complicated. These issue will have to be dealt with promptly and efficiently by the parties concerned. In all the circumstances of this case, I hold great reservations that the parties would be able to address these practical considerations easily. In my view, event he most trivial issue has the potential to be a flash-point between them. In my view, this is a major factor which militates against a shared parenting regime.
(e) The capacity of each parent to meet the children’s needs, including emotional and intellectual needs
(h) The attitude to the children and the responsibilities of parenthood
These criteria are so closely linked that it is convenient to consider them together. I have already indicated my view that both parties have shown themselves to be committed to what they consider are likely to be [X] and [Y]’s best interests. However, in my view, it is the case that the mother has had a significantly greater degree of involvement in the children’s lives both before and after separation. I do not think that there is any cogent evidence to suggest that she has not fulfilled her responsibilities to properly parent the children.
It is suggested that Ms Eddy has manufactured concerns about family violence in this case, as a means of unduly restricting contact between the children and their father and, as such, has demonstrated a poor degree of insight into the responsibilities of being a parent. I do not accept that this is so. Following the happenings of May 2003, Ms Eddy proved herself to be amenable to overnight contact. In her words, she recognised that “the boys needed their father”. Since that time she has continued to support contact, albeit not the contact Mr Weaver would have preferred. In very difficult circumstances, contact has continued to happen. Mr F, in particular, has gone to some lengths to avoid inciting any situation which might result in the derailment of any contact.
Mr Weaver is a competent and devoted parent. There is nothing to indicate that he is not able to administer to the children’s daily needs. He is anxious for them to have the best possible education. He wants them to excel at sport. He wishes them to maintain a peak level of fitness. These are all matters which go to his credit.
Of the two parties concerned, I am satisfied that it is Ms Eddy who has shown the greater awareness of the children’s emotional needs, in the difficult circumstances that have prevailed since the parties separated. I am satisfied that Mr Weaver’s desire for the shared care arrangement stems mainly from his own emotional needs and his perception of what is likely to be fair to him. In my view, there is clear evidence that he has allowed his strong feelings in this regard to place the children under an inordinate amount of emotional pressure.
Mr Weaver is unable to moderate his hostility towards Mr F and appreciate that he plays an important role in the children’s lives and has something of significance to offer them. This hostility towards Mr F upsets the children. It seems to have been the major factor in
Mr Weaver and his father making a complaint to the police about
Mr F’s alleged mistreatment of the children, which Mr Weaver now acknowledges has no substance. The children were put through the trauma of being interviewed. Mr Weaver automatically thought the worst of Mr F and did not think it appropriate to discuss the significant issue with either him or Ms Eddy. Rather, the children had to be questioned by strangers, in the alien circumstances of a police station.
In her comprehensive report, Ms Hewett indicated that [X] was reticent about his father knowing what his preference was in regards to future living arrangements. The father does not accept this. Rather he asserts that Ms Eddy has manipulated the child for her own ends. I agree with Ms Hewett’s assessment that, at the present time, the children, particularly [X], find it difficult to confide in their father and are concerned at his apparent distain for their mother and Mr F.
The greatest protection a child can have, from the deleterious effects of parental separation and relationship breakdown, is the sense that he or she can openly express love and affection for both his or her parents in the presence of the other parent without fear of disapprobation. I do not think that either child currently has that sense. In this case, there is a real risk that both [X] and [Y] will become enmeshed in their parents’ conflict, with long term consequences for their emotional wellbeing. Of the two parties, I believe that it is Mr Weaver who is currently more proactive in driving the conflict. Either consciously or unconsciously, he is desirous of undermining the relationship the children have with their mother. That is not likely to be in their best interests.
(f) The children’s maturity, sex, background and other characteristics
[X] is eight and a half of years of age and [Y] is just under seven. They have lived in Adelaide all their lives and enjoy the activities which go along with childhood in an Australian suburb. Neither is an exceptionally mature child. Neither has any specific characteristics, which fall for consideration under this section. As Ms Hewett observed, both are sociable and engaging children, whose developmental needs have been well met. They are performing appropriately at school.
[X] seems to have had greater difficulties in coping with the difficult circumstances following his parents’ separation. Temperamentally he seems to have a predisposition to worry. It seems to me that the parties’ separation in this matter was a particularly difficult one. In all the circumstances of this case, I believe it would be imprudent of me to ignore Ms Hewett’s recommendations, in regards to the need for [X] to be assisted with coping skills through a process of counselling. I do not think that this process is likely to entrench these problems with [X] or unduly “label” him, as Mr Weaver fears.
(g) The need to protect the children from physical or psychological harm caused by abuse or ill treatment, violent or other behaviour
I do not think that either party would willingly expose either child to any serious risk of either emotional or physical harm.
(i) Any family violence involving the children or a member of the children’s family
Mr Weaver acknowledges that he struck Ms Eddy on one past occasion. This occurred on 16 May 2003 and resulted in Mr Weaver being sentenced to six months imprisonment, which was suspended on condition that he be of good behaviour for a period of three years and perform one hundred hours of community service work. It was also ordered that he attend an anger management course.
In my view, the sentence imposed indicates that the sentencing judge regarded the incident as a serious one. So do I. It is Mr Weaver’s evidence that those who were supervising the bond deemed it unnecessary for him to undergo the anger management course. I would have thought that this was a matter within the authority of the sentencing judge rather than being the subject of an administrative decision.
For reasons already provided, I accept that there was a level of family violence between the father and the mother in the period prior to their first separation. There is however no evidence to indicate either child was directly exposed to this violence.
I am unable to make any positive finding that Mr Weaver raped
Ms Eddy, as she alleges. However, in my view, it is axiomatic from the fact that Ms Eddy asserts she was raped by Mr Weaver, which fact
Mr Weaver strenuously refutes and alleges has been maliciously concocted, that the parties do not and are unlikely ever to have a relationship which is based on trust or co-operation. The issue will leave them forever polarised, with the sad fact that the children will always have to negotiate an uncomfortable and hostile chasm between the maternal and paternal aspects of their family. In my view, this is a factor which militates strongly against a shared parenting regime.
(j) Any family order that applies to the children or a member of the children’s family
Ms Eddy has a domestic violence order, in her favour, against
Mr Weaver for the period of the next three years. The three years will end in July of 2007. I consider it highly likely that Ms Eddy will seek to have the order extended. In a practical sense, the existence of the order makes it difficult for the parties to make arrangements for the care of the children. This is a situation which is likely to prevail for some time. In my view, it is another factor which militates against a shared parenting arrangement.
I am aware that Mr Weaver has not breached the order in any way.
He would be foolish to do so. However, notwithstanding these matters, I think I would be naïve to think the existence of the order is not a significant impediment to the parties making easy arrangements for the care of the two children involved in this matter. To the contrary, their relationship is one marked by a high level of suspicion. In my view, it cannot be said that the family violence order was improperly obtained in any way and is not founded on a proper evidentiary basis. I am satisfied that Ms Eddy continues to be frightened of Mr Weaver to this day.
(k) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Parenting orders are never final in the sense that children’s and their parents’ circumstances change. As a result, arrangements need to alter as a consequence of those changes. However, as far as possible, it is desirable that orders be made that will minimise the prospects of parties seeking further orders from the court in future. This is because litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned.
These proceedings were contested with a high degree of vigour.
Mr Weaver is convinced that the shared care arrangement, which he advocates, is indubitably the best outcome for [X] and [Y]. Accordingly, he is likely to be dissatisfied with any outcome in these proceedings, which does not favour his view. In the past, he has shown himself to be prone to proceed with a contravention application without, in my view, a great deal of thought. Up until this stage, the parties have required court intervention to manage many matters to do with the care of the children concerned. In such circumstances, regardless of the outcome, it seems there is a high likelihood of further litigation in future.
As a result, save for advocating that the parties focus on [X] and [Y]’s best interests, there is little the court can to do ensure that future litigation is contained. It seems inevitable that there will be a high degree of hostility between the parties for the foreseeable future and, against such a background, a high probability of further proceedings.
Conclusions
As I indicated at the commencement of these reasons for judgment, the inquiry in this case is once predicated on the determination of the outcome most likely to achieve [X] and [Y]’s best interests, in both the short and long term. The application of the principles contained in the Family Law Act 1975 does not favour one particular outcome over another. There is no presumption for or against a shared parenting regime provided by the Act. Rather, the court must inquire into the unique circumstances of each child in order to tailor an individual arrangement which is in that child’s best interests. Obviously every child’s circumstances are different.
In my view, a shared parenting regime is not likely to be in [Y] and [X]’s best interests for the following major reasons:
·The children’s most significant emotional attachment is to their mother;
·The children do not wish such an arrangement;
·To impose such an arrangement, without the support of both parents and in the absence of proven mechanisms between them for communicating parenting information and resolving parenting disputes, is likely to result in a significant risk of the children’s emotional adjustment being disrupted in both the long and short term;
·It would be a significant change of circumstances for the children and a successful outcome could not be assured.
These are the major reasons, which militate against such an arrangement. As I hope is apparent from these fairly lengthy reasons for judgment, there are other significant and related reasons, which make such an arrangement untenable in the present circumstances of the parties, which are unlikely to change for the foreseeable future.
I cannot however lose sight of the fact that the children have a close and highly significant relationship with their father. He has been a consistent figure in their lives, up to this point, and has much to offer them. Having determined that the greater balance of emotional security for the children is provided by their mother and for the court to artificially and abruptly move that balance to one of equality, as
Mr Weaver seeks, is an outcome likely to be fraught with difficulty, the question nonetheless remains where the balance should lie, bearing in mind the significance of the children’s paternal relationship and the objects and principles underlying the relevant sections of the Family Law Act1975 contained in s.60B.
It is the mother’s position that the appropriate balance is as it currently stands. That is, the children spend each alternate weekend, during term time, from after school on Friday until the commencement of school the following Monday and half of each school holiday with their father. The father would wish to move the balance much further in his favour in terms of the time the children spend with him.
I agree with Ms Hewett that it is likely to be of benefit to children to view their parents in a variety of circumstances. Such an outcome provides them with a balanced view of their parents and does not necessarily confine one parent to the role of “weekend” or “holiday” parent and the other to what is seen as a more significant role in the care of the children concerned.
Ms Hewett recommended an additional overnight stay, for the children, each fortnight. In her view, this was based on [X]’s view in particular. She did not rule out further increases in this contact, provided the parties developed their communication skills and ability to act co-operatively.
It is the mother’s position that events, which have occurred since
Ms Hewett wrote her report, notably the unfounded allegations against Mr F and the father’s inability to accept the children’s wishes as reported by Ms Hewett, are factors which strongly indicate that there should not be an extension of contact. There is much substance to
Ms Eddy’s objections. It seems likely that the best chance of contact being successfully extended is if Ms Eddy supports the extension of that contact. I accept that she is insightful and supportive of the children’s emotional needs. Nonetheless, bearing in mind the significance of the children’s relationship with their father, I have come to the conclusion that it would be appropriate for there to be an overnight period of contact during the other of the school weeks. I do not believe that, at this stage, to extend the contact to five nights per fortnight is warranted. The parties’ parenting relationship is too problematic for that and the risk of dislocation to the children too great.
For reasons already provided, I am of the view that it is likely to be in [X]’s best interests to have the counselling as recommended by
Ms Hewett. I think it likely that the positive outcomes for [X] of such counselling are likely to be outweighed by any possible negative ones, which seem overstated by Mr Weaver. Finally, I am not persuaded that I should make any order in respect of Mr E. I do not think that it is likely that Ms Eddy would expose either [X] or [Y] to any appreciable or serious risk of emotional harm.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two-hundred and two (202) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: C White
Date: 7 November 2005
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