EDMONDSON & SABLES
[2015] FCCA 3367
•18 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDMONDSON & SABLES | [2015] FCCA 3367 |
| Catchwords: FAMILY LAW – Parenting – difficult contested parenting relationship between parties – Father and child share a hearing disability – best interests considerations – Father’s conduct in effect a constant wearing down of the Mother – parents unable to communicate effectively – Father using “time with” as a bartering tool – Father’s focus on “quantity” of time with child not “quality” – Father’s focus on “fairness” rather than child’s best interests and equation of the two – Father’s inability to understand or appreciate child’s needs and the adverse impact of the contest with the Mother impacting negatively on the child. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC(2)(a) & (b), 60CC(3)(a) – (m), 65DAA |
| In the Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113 SCVG v KLD (2014) 284 FLR 191; (2015) 51 Fam LR 340 |
| Applicant: | MR EDMONDSON |
| Respondent: | MS SABLES |
| File Number: | PAC 457 of 2013 |
| Judgment of: | Judge Neville |
| Hearing dates: | 26, 27 March, 21 July 2015 |
| Date of Last Submission: | 2 September 2015 |
| Delivered at: | Canberra |
| Delivered on: | 18 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Self represented |
| Counsel for the Respondent: | Mr G Stagg |
| Solicitors for the Respondent: | Legal Aid ACT |
| Solicitor/Advocate for the Independent Children's Lawyer: | Mr K Robinson |
| Solicitors for the Independent Children's Lawyer: | Robinson + McGuinness, Canberra |
ORDERS
All previous parenting orders be discharged.
Subject to Order 3 (below) the parents shall have equal shared parental responsibility for the child, X (“X”), born (omitted) 2009.
The Mother shall have sole parental responsibility in relation to X’s health and medical matters; the Mother is required to keep the Father informed of all major decisions regarding X’s health, and is to retain X's Blue Book.
X shall live with the Mother.
The Mother is permitted to permanently relocate the residence of X to Canberra in the Australian Capital Territory.
X shall spend time with the Father as agreed in writing, and failing such agreement as follows:-
Commencing Term 2, 2015
(a)For 3 weekends each ACT gazetted school term from 6:00pm Friday until 4:00pm Sunday, as agreed and failing agreement at the end of the second, fifth and eighth weeks of the school term;
(b)That where X’s time with his Father falls on a weekend including a Monday public holiday, the time provided in paragraph 4.a. hereof is extended to 4:00pm Monday;
(c)For one period of two nights each ACT gazetted school term as agreed and failing agreement on Wednesday and Thursday of the fifth week of the gazetted school term, with such time to be spent in the Canberra/(omitted) region;
(d)For twelve days in each of the school holiday periods that fall at the end of terms 1 and 3 of the ACT gazetted school holidays from 6:00pm on the Friday following the conclusion of school to 4:00pm on the second Tuesday of the said school holiday period;
(e)For the first half of the school holiday period that falls at the end of term 2 from 6:00pm on the Friday following the conclusion of school to 4:00pm on the middle Saturday of the school holiday period;
(f)For half of the Christmas school holiday period on a one week: one week: two week: two week: cycle with the first and third periods in odd numbered years and second and fourth periods in even numbered years;
(g)For the purpose of these Orders the school holiday periods are deemed to commence at 6:00pm on the last day of school and to conclude at 4:00pm on the Sunday prior to the resumption of school in the following term;
Special Occasions
Notwithstanding any other Order herein, X shall spend time with his parents over Christmas as follows:
(a)From 5:00pm on Christmas Eve to 5:00pm on Christmas Day with the Father in odd numbered years commencing in 2015
(b)From 5:00pm on Christmas Day to 5:00pm on Boxing Day with the Mother in odd numbered years commencing in 2015
(c)From 5:00pm on Christmas Eve to 5:00pm on Christmas Day with the Mother in even numbered years commencing 2016;
(d)From 5:00pm on Christmas Day to 5:00pm on Boxing Day with the Father in even numbered years commencing 2016.
Changeover
Unless agreed between the parties in writing, changeover shall occur at the McDonalds Restaurant at (omitted).
Overseas Travel/Passport
X be permitted to travel outside of the Commonwealth of Australia subject to:
(a)The parent proposing such travel providing the other parent with 8 weeks’ notice in writing of the proposed travel, including details of the proposed itinerary and details of makeup time following the period of travel for any party who forgoes time as a result of the travel;
(b)Not less than 14 days prior to departure, the parent proposing travel providing a copy of X’s tickets, and confirmation of the addresses where he shall be staying during the period of travel together with an email address and telephone number at which the parent and X may be contacted by the other parent;
(c)Absent written agreement, such travel not exceed a period of 2 weeks.
Each party shall do all things and sign all documents necessary to provide their consent to X obtaining an Australian Passport and/or renewing his Australian Passport within 14 days of receipt of a request from the other parent to do so;
X’s passport shall be held by the Mother; if X is travelling overseas with the Father in accordance with these orders, the Mother shall deliver X’s passport to the Father not less than four weeks prior to the date of the intended departure, and the Father shall return X’s passport to the Mother within 72 hours of return from any overseas trip.
Communication
During periods where X is living with either parent, the parent with whom X is not currently with be at liberty to communicate with X by telephone and/or Skype each Tuesday and Thursday between 6:00pm and 7:00pm and the other parent is to facilitate the call.
Notwithstanding Order 12, if X expresses a wish to telephone the other parent at a reasonable time, the parent with whom X is currently spending time shall assist X to telephone the other parent.
On X’s birthday and each of the Father and Mother’s birthdays, the non resident parent shall be at liberty to communicate with X by telephone and/or Skype between 6:00pm and 7:00pm and the other parent is to facilitate the call.
Each parent shall advise the other as soon as reasonably practical of:
(a)Any significant illness, accidents or injury suffered by X;
(b)Any significant medical or dental treatment provided to X;
(c)Any medication X is to take whilst he is in the other parent’s care including the dosage;
(d)This Order may be regarded as authority for the relevant Doctor or Hospital to provide relevant information to either parent.
X’s childcare, school, vacation care, and other providers are authorised to provide all information and documents about X to both parents, including but not limited to X’s progress, newsletters, reports, photographs and details of any school activities and that each parent shall ensure they provide their contact details to such school and facilities.
Both parents may attend any school or extracurricular or sporting activity to which parents are normally invited.
The Mother and Father are both required to separately attend and complete the Assisting Responsible Care for Kids (ARCK) program for counselling at Marymead in (omitted), ACT (or a similar course interstate) and proof of completion of this program must be provided to the Independent Children’s Lawyer.
X is to attend and complete counselling as organised by the Kids and Youth are Kool post-Separation (KAYAKS) program at Marymead, for as long as the KAYAKS program considers reasonably necessary.
Should the Father relocate to Canberra/(omitted) region
In the event the Father relocates to the Canberra/(omitted) region, X shall live with the Mother and spend time with the Father as follows:-
(a)From after school Friday until before school Tuesday each alternate weekend and for half of each school holiday period and being the first half in odd numbered years and the second half in even numbered years;
(b)On special occasions in accordance with paragraph 7 and 14 hereof.
Pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
Pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
THE COURT NOTES THAT:
A.The parties must arrive on time for changeover.
B.All X’s medical equipment (including glasses and hearing aids), school supplies and school clothes provided with X at handover for time in accordance with orders 6 and 7 shall be returned at the conclusion of such time.
IT IS NOTED that publication of this judgment under the pseudonym Edmondson & Sables is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
PAC 457 of 2013
| MR EDMONDSON |
Applicant
And
| MS SABLES |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the determination of parenting orders that are in the best interests of soon to turn 6 year old X. X lives with his Mother in Canberra; his Father lives in Sydney. X's Father has a hearing disability; so too does X.
Both of X’s parents are in full time employment. His Mother works for the (employer omitted); his Father is a (occupation omitted) who works for the (employer omitted) in Sydney. The Father represented himself during the hearing.
The issues in dispute are really quite narrow. Very summarily stated they are as follows.
There is no dispute that X will continue to live primarily with his Mother. Nor is there any challenge now – as there once was – to the Mother continuing to reside in Canberra, having moved from Sydney. The primary issue to determine is the frequency of time that X spends with his Father, and where and how that time is to be spent.[1]
[1] In certain respects, this issue is also coloured by the Father considering, but not determining, whether he and his current partner and their quite young son Y, might move to Canberra, which obviously would make the Father spending time with X much easier for all concerned. See the brief discussion at Transcript (26th March 2015) p.13. Hereafter, unless otherwise required, references will be to the transcript for this and the following date. And references will simply be “T” followed by the relevant page number.
The issue of parental responsibility, but only in a limited respect, is also a matter that requires determination. By this I mean that while both parties seek an order for equal shared parental responsibility, the Mother seeks an order for sole parental responsibility in relation to medical issues. This arises because of her difficulty, as the child’s primary carer, to engage the Father constructively and in a timely manner regarding a range of not insignificant health matters for X. In my view, the evidence clearly supports the orders sought by the Mother in this regard.
The Father seeks an arrangement where X spends time with him each alternate weekend during school terms (3 occasions in Sydney and twice in Canberra), for extended periods in the term 1 and 3 school holidays, and for half of the term 2 and Christmas holiday periods.
The Mother opposes the orders sought by the Father, and seeks a more restricted regime primarily because of the logistical considerations of travel between Canberra and Sydney with a still quite young child, and also because of the Mother’s not insignificant difficulty in dealing with the Father who has, according to the ICL (which view I accept), a quite fixed view of events in the past. Further, the ICL took a view (which I also share) that the Father’s orders sought were according to a measure which he saw as “fair” to him, rather than what were (or are) necessarily in X’s best interests.
Further, while the Father believes that he is flexible in negotiating parenting arrangements with the Mother, in my view he is anything but flexible. Moreover, he seemed almost to take offence that anyone, including the Court, would find him to be anything but flexible and reasonable in relation to parenting issues regarding X.
In the course of the trial he often sought to justify his often-times intransigent conduct towards the Mother. From close observation of both parties in the course of the rather extended trial, which took place over a number of days and ultimately was part-heard between March and July of this year, the Father impressed me has having a very strong sense of entitlement, with a highly developed focus (as I have said) on what he considered to be “fair” to him in the orders of the Court rather than necessarily on what was appropriate and ultimately best for his young son. It was never clear that the Father understood or appreciated that what was “fair” to him did not, indeed rarely, equated to what was in the child’s best interests.
Such a view of the Father (by which I do not seek to give offence) is and was both surprising and concerning. “Surprising” because of the Father’s obvious learning and experience as a (occupation omitted). “Concerning” because proper learning and attention to what the Act requires and what had been made plain, for example, in the Family Report of Dr G (Exhibit D) should have alerted the Father to the range of considerations (e.g. the need for X’s primary carer – his Mother – to have the child’s blue health book so that proper and timely treatment of health issues could be addressed) that were proper to this child’s best interests given his personal and familial circumstances. Unfortunately, this did not occur. As already mentioned, the Father’s pre-eminent focus was on what orders were “fair”, and not on what orders were in X’s best interests. This was so notwithstanding the Father’s confirmation at the outset of the trial that he was aware of the “best interests of the child principle.”[2]
[2] See T 7 - 8.
And in furtherance of his focus on personal entitlement, he has taken steps in the past to bolster his bargaining position, such as to keep the child’s “blue health book”, rather than return it to the Mother, the child’s acknowledged primary carer.[3] This was but one of a number of examples which showed (a) the Father’s unfortunate lack of insight into the needs and best interests of the child, and (b) his determination to take whatever steps he considered necessary to achieve what he believed to be fair to him. The retention of X’s blue health book is particularly troubling because it risked, in my view, X’s health and that the Father showed by such conduct his belief that his conduct was appropriate but which potentially could have put X’s health at risk. It showed, in my view, very significant lack of insight on the Father’s part.
[3] A range of emails between the parties concerning the Father’s inappropriate retention of the child’s “blue health book” became Exhibits A and B.
The Family Consultant confirmed, among other things, that the parties were not good communicators, and that “bartering” over things like the Father’s time with the child (which was predominantly the Father’s way of proceeding) was inappropriate.[4] At the same time, it should be recorded that notwithstanding various and not insignificant allegations by the Mother, both parties still acknowledge that X has a close relationship with both parents, and equally the importance of the child’s relationship with the other parent and the extended family, particularly on the Father’s side.
[4] A range of emails which exhibit the type of protracted “negotiations” between the parties regarding the Father’s time with X became Exhibit B, while emails between the parties regarding X’s immunisation and health issues became Exhibit C.
The detail of each party’s orders sought is set out later in these reasons.
For the reasons set out below, which in large measure accept and adopt the submissions of the independent children’s lawyer (“ICL”), the orders sought by the ICL, which were also adopted by the Mother, in my view, are in X’s best interests, as per s.60CA of the Family Law Act 1975 (“the Act”).
The Father’s Orders Sought
1. All previous parenting orders be discharged.
2. The parents shall have equal shared parental responsibility for the child, X (“X”) born (omitted) 2009.
3. X shall live with the Mother.
4. The Mother is permitted to permanently relocate the residence of X to Canberra, Australian Capital Territory.
5. X shall spend time with the Father as agreed in writing, and failing such agreement as follows:-
a) Commencing Terms 2 2015
i.On the 1st, 5th and 9th weekends of each ACT school term in Sydney from 8:00pm Friday until 4:00pm Sunday;
ii.On the 3rd and 7th weekends of each ACT school term, in Canberra from after school or 3:00pm Friday until 5:00pm Sunday and the father shall have liberty to extend this time to before school on Monday if he provides the mother with at least 7 days written notice of his intention to do so.
b) That where X’s time with his Father falls on a weekend including an adjoining public holiday the time provided in paragraph 5.a. hereof is extended to include that following or preceding day until or from the corresponding time, including Easter weekends where it does not fall in the school holidays;
c) For twelve days in each of the school holiday periods that fall at the end of terms 1 and 3 of the ACT gazetted school holidays from 6:00pm on the Friday following the conclusion of school to 6:00pm on the second Tuesday of the said school holiday period;
d) For the first half of the school holiday period that falls at the end of term 2 from 6:00pm on the Friday following the conclusion of school to 6:00pm on the middle Saturday of the school holiday period;
e) For half of the Christmas school holiday period on a one week: one week: two week: two week: cycle with the first and third periods in odd numbered years and the second and fourth periods in even numbered years;
f) For the purpose of these Orders the school holiday periods are deemed to commence at 6:00pm on the last day of school and to conclude at 4:00pm on the Sunday prior to the resumption of school in the following term;
Special Occasions
6. That notwithstanding any other Order herein, X shall spend time with his parents over Christmas as follows:
a) From 5:00pm on Christmas Eve to 5:00pm on Christmas Day with the Father in odd numbered years commencing in 2015;
b) From 5:00pm on Christmas Day to 5:00pm on Boxing Day with the Mother in odd numbered years commencing in 2015;
c) From 5:00pm on Christmas Eve to 5:00pm on Christmas Day with the Mother in even numbered years commencing 2016;
d) From 5:00pm on Christmas Day to 5:00pm on Boxing Day with the Father in even numbered years commencing 2016.
Changeovers
7. That changeover shall occur:
a) On weekends during school term when X travels to Sydney, at McDonalds restaurant, (omitted);
b) On weekends during school term when the Father travels to Canberra the Father will collect X from school at 3:00pm on Friday and deliver him back to the Mother in Sunday at the McDonalds Restaurant at (omitted), ACT; and
c) On other occasions in the Booking Office at (omitted) train station
unless otherwise agreed in writing by the parties.
Overseas Travel/Passport
8. That X be permitted to travel outside of the Commonwealth of Australia subject to:
a) The parent proposing such travel providing the other parent with 8 weeks’ notice in writing of the proposed travel, including details of the proposed itinerary and details of makeup time following the period of travel for any party who forgoes time as a result of the travel;
b) Not less than 14 days prior to departure, the parent proposing travel providing a copy of X’s tickets, and confirmation of the addresses where he shall be staying during the period of travel together with an email address and telephone number at which the parent and X may be contacted by the other parent;
c) Such travel not exceed a period of 2 weeks;
d) The consent in writing of the other parent is not unreasonable withheld;
e) That during the period X is overseas, the parent with whom X is travelling shall facilitate X telephoning the other parent on alternate days;
9. That each party shall do all things and sign all documents necessary to provide their consent to X obtaining an Australian Passport and/or renewing his Australian Passport within 14 days of receipt of a request from the other parent to do so;
10. That X’s passport shall be held by the Mother and if X is travelling overseas with the Father in accordance with these orders, the Mother shall deliver X’s passport to the Father not less than four weeks prior to the date of the intended departure and the Father shall return X’s passport to the Mother within one week of return from any overseas trip.
Communication:
11. That during periods where X is living with either parent, the parent with whom X is not currently with be at liberty to communicate with X by telephone and/or Skype each Tuesday and Thursday between 6:00pm and 7:00pm and the other parent is to facilitate the call.
12. That notwithstanding Order 11, if X expresses a wish to telephone the other parent at a reasonable time, the parent with whom X is currently spending time shall assist X to telephone the other parent.
13. That on X’s birthday and each of the Father and Mother’s birthdays, the non resident parent shall be at liberty to communicate with X by telephone and/or Skype between 6:00pm and 7:00pm and the other parent is to facilitate the call
14. That within 7 days each parent shall provide the other with written details of their residential address, and that each parent shall notify the other within 24 hours of any change of residential address, email or telephone number, including mobile telephone. Each party shall be restrained from attending the residential address of the other party unless otherwise agreed in writing;
15. That each parent shall advise the other as soon as reasonable practical of:
a) Any significant illness, accidents or injury suffered by X;
b) Any significant medical or dental treatment provided to X;
c) Any medication X is to take whilst he is in the other parent’s care including the dosage;
d) This Order may be regarded as authority for the relevant Doctor or Hospital to provide relevant information to either parent.
16. X’s childcare, school, vacation care, and other providers are authorised to provide all information and documents about X to both parents, including but not limited to X’s progress, newsletters, reports, photographs and details of any school activities and that each parent shall ensure they provide their contact details to such school and facilities.
17. Both parents may attend any school or extracurricular or sporting activity to which parents are normally invited.
ARCK/KAYAKS
18. Both the Mother and the Father should attend separately Assisting Responsible Care for Kids (ARCK) for counselling at Marymead in (omitted), ACT separately as long as ARCK considers reasonable necessary.
19. X should attend whatever services are made available to him by Kids and Youth are Kool post Separation (KAYAKS) also at Marymead for as long as KAYAKS considers reasonably necessary.
The Mother’s Orders Sought
1. All previous parenting orders be discharged.
2. The parents shall have equal shared parental responsibility for the child, X (“X”), born (omitted) 2009.
3. The Mother shall have sole parental responsibility in relation to X’s health and medical matters.
4. X shall live with the Mother.
5. The Mother is permitted to permanently relocate the residence of X to Canberra in the Australian Capital Territory.
6. X shall spend time with the Father as agreed in writing, and failing such agreement as follows:-
Commencing Term 2, 2015
a) For 3 weekends each ACT gazetted school term from 6:00pm Friday until 4:00pm Sunday, as agreed and failing agreement at the end of the second, fifth and eighth weeks of the school term;
b) That where X’s time with his Father falls on a weekend including a Monday public holiday, the time provided in paragraph 4.a. hereof is extended to 4:00pm Monday;
c) For one period of two nights each ACT gazetted school term as agreed and failing agreement on Wednesday and Thursday of the fifth week of the gazetted school term, with such time to be spent in the Canberra/(omitted) region;
d) For twelve days in each of the school holiday periods that fall at the end of terms 1 and 3 of the ACT gazetted school holidays from 6:00pm on the Friday following the conclusion of school to 4:00pm on the second Tuesday of the said school holiday period;
e) For the first half of the school holiday period that falls at the end of term 2 from 6:00pm on the Friday following the conclusion of school to 4:00pm on the middle Saturday of the school holiday period;
f) For half of the Christmas school holiday period on a one week: one week: two week: two week: cycle with the first and third periods in odd numbered years and second and fourth periods in even numbered years;
g) For the purpose of these Orders the school holiday periods are deemed to commence at 6:00pm on the last day of school and to conclude at 4:00pm on the Sunday prior to the resumption of school in the following term;
Special Occasions
7. That notwithstanding any other Order herein, X shall spend time with his parents over Christmas as follows:
a) From 5:00pm on Christmas Eve to 5:00pm on Christmas Day with the Father in odd numbered years commencing in 2015;
b) From 5:00pm on Christmas Day to 5:00pm on Boxing Day with the Mother in odd numbered years commencing in 2015;
c) From 5:00pm on Christmas Eve to 5:00pm on Christmas Day with the Mother in even numbered years commencing 2016;
d) From 5:00pm on Christmas Day to 5:00pm on Boxing Day with the Father in even numbered years commencing 2016.
Changeover
8. That changeover shall occur as agreed between the parties in writing, and failing agreement at the McDonalds Restaurant at (omitted).
Overseas Travel/Passport
9. That X be permitted to travel outside of the Commonwealth of Australia subject to:
a) The parent proposing such travel providing the other parent with 8 weeks’ notice in writing of the proposed travel, including details of the proposed itinerary and details of makeup time following the period of travel for any party who forgoes time as a result of the travel;
b) Not less than 14 days prior to departure, the parent proposing travel providing a copy of X’s tickets, and confirmation of the addresses where he shall be staying during the period of travel together with an email address and telephone number at which the parent and X may be contacted by the other parent;
c) Such travel not exceed a period of 2 weeks;
d) The consent in writing of the other parent is not unreasonably withheld;
e) That during the period X is overseas, the parent with whom X is travelling shall facilitate X telephoning the other parent on alternate days;
10. That each party shall do all things and sign all documents necessary to provide their consent to X obtaining an Australian Passport and/or renewing his Australian Passport within 14 days of receipt of a request from the other parent to do so;
11. That X’s passport shall be held by the Mother and if X is travelling overseas with the Father in accordance with these orders, the Mother shall deliver X’s passport to the Father not less than four weeks prior to the date of the intended departure, and the Father shall return X’s passport to the Mother within 72 hours of return from any overseas trip.
Communication
12. That during periods where X is living with either parent, the parent with whom X is not currently with be at liberty to communicate with X by telephone and/or Skype each Tuesday and Thursday between 6:00pm and 7:00pm and the other parent is to facilitate the call.
13. That notwithstanding Order 12, if X expresses a wish to telephone the other parent at a reasonable time, the parent with whom X is currently spending time shall assist X to telephone the other parent.
14. That on X’s birthday and each of the Father and Mother’s birthdays, the non resident parent shall be at liberty to communicate with X by telephone and/or Skype between 6:00pm and 7:00pm and the other parent is to facilitate the call.
15. That each parent shall advise the other as soon as reasonably practical of:
a) Any significant illness, accidents or injury suffered by X;
b) Any significant medical or dental treatment provided to X;
c) Any medication X is to take whilst he is in the other parent’s care including the dosage;
d) This Order may be regarded as authority for the relevant Doctor or Hospital to provide relevant information to either parent.
16. The Father will deliver X’s medical record book (Blue book) within 7 days of the date hereof and the Mother shall thereafter retain possession of said medical record book.
17. X’s childcare, school, vacation care, and other providers are authorised to provide all information and documents about X to both parents, including but not limited to X’s progress, newsletters, reports, photographs and details of any school activities and that each parent shall ensure they provide their contact details to such school and facilities.
18. Both parents may attend any school or extracurricular or sporting activity to which parents are normally invited.
Should the Father relocate to Canberra/(omitted) region
19. In the event the Father relocates to the Canberra/(omitted) region, X shall live with the Mother and spend time with the Father as follows:-
a) From after school Friday until before school Tuesday each alternate weekend and for half of each school holiday period and being the first half in odd numbered years and the second half in even numbered years;
b) On special occasions in accordance with paragraph 7 and 14 hereof.
AND IT IS NOTED THAT:
A.The parties must arrive on time for changeover. Failure to do so may result in a contravention application being made.
B.All X’s medical equipment (including glasses and hearing aids), school supplies and school clothes provided with X at handover for time in accordance with orders 6 and 7 shall be returned at the conclusion of such time.
The ICL’s Orders Sought
1. All previous parenting orders be discharged.
2. The parents shall have equal shared parental responsibility for the child, X (“X”) born (omitted) 2009.
3. X shall live with the Mother.
4. The Mother is permitted to permanently relocate the residence of X to Canberra, Australian Capital Territory.
5. X shall spend time with the Father as agreed in writing, and failing such agreement as follows:-
a) For 3 weekends each ACT gazetted school term from 8.00pm Friday until 4.00pm Sunday as agreed and failing agreement at the end of the second, fifth and eighth weeks of the school term;
b) That where X’s time with his Father falls on a weekend including a Monday public holiday, the time provided in paragraph 4.a. hereof is extended to 4.00 pm Monday;
c) For one period of 2 nights each ACT gazetted school term as agreed and failing agreement as nominated by the Father in writing at least fourteen days prior to the commencement of the said time, such time to be spent in the Canberra/(omitted) region;
d) The period of time nominated by the Father pursuant to paragraph 4.c. hereof may include school days and/or weekends;
e) For twelve days in each of the school holiday periods that fall at the end of terms 1 and 3 of the ACT gazetted school holidays from 8.00pm on the Friday following the conclusion of school to 4.00 pm on the second Tuesday of the said school holiday period;
f) For the first half of the school holiday period that falls at the end of term 2 from 8.00 pm on the Friday following the conclusion of school to 4.00 pm on the middle Saturday of the school holiday period;
g) For half of the Christmas school holiday period on a one week: one week: two week: two week: cycle with the first and third periods in odd numbered years and second and fourth periods in even numbered years;
h) For the purpose of these Orders the school holiday periods are deemed to commence at 8.00 pm on the last day of school and to conclude at 4.00pm on the Sunday prior to the resumption of school in the following school term
Special Occasions
6. That notwithstanding any other Order herein, X shall spend time with his parents over Christmas as follows:
a) From 5.00pm on Christmas Eve to 5.00pm on Christmas Day with the Father in odd numbered years commencing in 2015
b) From 5.00pm on Christmas Day to 5.00pm on Boxing Day with the Mother in odd numbered years commencing in 2015
c) From 5.00pm on Christmas Eve to 5.00pm on Christmas Day with the Mother in even numbered years commencing 2016;
d) From 5.00pm on Christmas Day to 5.00pm on Boxing Day with the Father in even numbered years commencing 2016.
Changeovers
7. That changeover shall occur as agreed between the parties in writing, and failing agreement at the McDonalds Restaurant at (omitted).
Overseas Travel/Passport
8. That X be permitted to travel outside of the Commonwealth of Australia subject to:
a) The parent proposing such travel providing the other parent with 8 weeks’ notice in writing of the proposed travel, including details of the proposed itinerary and details of makeup time following the period of travel for any party who forgoes time as a result of the travel;
b) Not less than 14 days prior to departure, the parent proposing travel providing a copy of X’s tickets, and confirmation of the addresses where he shall be staying during the period of travel together with an email address and telephone mother at which the parent and X may be contacted by the other parent;
c) Such travel not exceed a period of 2 weeks;
d) The consent in writing of the other parent is not unreasonably withheld;
e) That during the period X is overseas, the parent with whom X is travelling shall facilitate X telephoning the other parent on alternate days;
9. That each party shall do all things and sign all documents necessary to provide their consent to X obtaining an Australian Passport and/or renewing his Australian Passport within 14 days of receipt of a request form the other parent to do so;
10. That X’s passport shall be held by the Mother and if X is travelling overseas with the Father in accordance with these orders, the Mother shall deliver X’s passport to the Father not less than four weeks prior to the date of the intended departure, and the Father shall return X’s passport to the Mother within 72 hours of return from any overseas trip.
Communication
11. That during periods where X is living with either parent, the parent with whom X is not currently with be at liberty to communicate with X by telephone and/or Skype each Tuesday and Thursday between 6.00pm and 7.00pm and the other parent is to facilitate the call.
12. That notwithstanding Order 11, if X expresses a wish to telephone the other parent at a reasonable time, the parent with whom X is currently spending time shall assist X to telephone the other parent.
13. That on X’s birthday and each of the Father and Mother’s birthday, the non resident parent shall be at liberty to communicate with X by telephone and/or Skype between 6.00 pm and 7.00 pm and the other parent is to facilitate the call.
14. That within 7 days each parent shall provide the other with written details of their residential address, and that each parent shall notify the other within 24 hours of any change of residential address, email or telephone number, including mobile telephone.
15. That each parent shall advise the other as soon as reasonably practical of:-
a) Any significant illness, accidents or injury suffered by X;
b) Any significant medical or dental treatment provide to X;
c) Any medication X is to take whilst he is in the other parents care including the dosage;
d) This Order may be regarded as authority for the relevant Doctor and Hospital to provide relevant information to either parent.
16. The Father will deliver X’s medical record book (Blue book) within 7 days of the date hereof and the Mother shall thereafter retain possession of the said medical record book.
17. X’s childcare, school, vacation care, and other care providers are authorised to provide all information and documents about X to both parents, including but not limited to X’s progress, newsletters, reports, photographs and details of any school activities and that each parent shall ensure they provide their contact details to such school and facilities.
18. Both parents may attend any school or extracurricular or sporting activity to which parents are normally invited.
Should Father relocate to Canberra/(omitted) region
19. In the event the Father relocates to the Canberra/(omitted) region, X shall live with the Mother and spend time with the Father as follows:-
a) From after school Friday until before school Tuesday each alternate weekend and for half of each school holiday period and being the first half in odd numbered years and the second half in even numbered years;
b) On special occasions in accordance with paragraph 6 and 13 hereof.
The Father’s Evidence
Rather than traverse every aspect of the Father’s evidence, in my view, it is sufficient if I refer to three matters that were addressed in his oral evidence, which of course referred to relevant passages in the affidavit material filed by the parties. The three specific and important incidents relate to (a) the Father retention of X’s “Blue health Book” (“the blue book”), (b) overseas travel, and (c) issues relating to the Mother’s brother’s wedding. Indeed, it was very much these issues that were the main subjects during the Father’s cross examination. Indeed, the rather exhaustive way in which these three issues were traversed at the trial showed clearly, in my view, the Father’s rather problematic attitude towards parenting in relation to X and his Mother.
At the outset of the trial, I raised with the Father the issue of “the blue book.” He confirmed that he still had it. Rather puzzled I put the following, rather rhetorical, question to him:[5]
20. … for my part, particularly in the light of you confirming that you’ve got X’s blue book, I have some difficulty understanding why you would have kept it. I understand what’s alleged by various sides in relation to it, especially by the mother, but it was just my first question that sort of struck me, why, if X’s primary residence and carer is his mother, why you would have kept his blue book. I understand that it’s suggested or alleged that it was something of a ‘tit for tat’ exercise. Whether that’s the case or not, I don’t need to get into at the moment, but I just thought that I would flag that at least up front.
[5] T 5.
In the course of the Father’s cross-examination, there was this exchange:[6]
[6] T 34.
21. MR STAGG: So if we take the blue book example – I think you know what I’m talking about here?‑‑‑Yes. I do.
22. You’ve had the blue book in your possession for some time now, haven’t you?‑‑‑Yes. I have.
23. And you have indicated to my client on a number of occasions that she will not get the blue book back until such time as she gives you his passport?‑‑‑Yes.
24. In fact, that’s just – you’ve said that many times, haven’t you, where she has requested ‑ ‑ ‑?‑‑‑I don’t know how many times.
25. She has requested the blue book from you on a number of occasions and your response has always been, “You can have it when I get his passport”?‑‑‑I’m not sure how many time she has asked me, but that – I have said that. Yes.
26. Would it be two?‑‑‑I don’t know.
27. Would it be more than 10?‑‑‑No.
28. Would it be less than 10?‑‑‑I think so.
29. More than five?‑‑‑I don’t know.
30. But you don’t argue with me that it may be more than five?‑‑‑I don’t know.
Then, a little later, there is the following exchange with the Mother’s Counsel (emphasis added):[7]
[7] T 35-36. It would seem clear that the Father did not require the child’s passport for any relevant travel purpose; he simply used it as a negotiating tool along with the Mother’s desire and need for the child’s blue book.
31. MR STAGG: Now, Mr Edmondson, if I can show you a document. Now, I would ask you to ignore the fact that it has my name on the top, that simply indicates that it was forwarded on to me, but I ask you to read the email dated 2 January 2014 at the bottom. Now, there’s a request in that email for you to bring the baby book, and I take it that that is referring to the blue book, his medical book. You understand that to be the case, don’t you?‑‑‑I do.
32. Yes. And you didn’t provide it on that occasion, did you?‑‑‑I don’t recall but I would assume that I did.
33. Well, my ‑ ‑ ‑?‑‑‑I assume that I attended the appointment and brought it with me.
34. I see. Yes. Thank you. I will have that document back and if I can provide you with another document and in particular on that document I ask you to look at the email on the second page dated 10 March 2015?‑‑‑Did you say – which date?
35. 10 March 2015?‑‑‑Yes.
36. And she states:
a) I need X’s blue book as I have told you many times. When will you give it to me.
37. ?‑‑‑Yes.
38. And you have not provided the blue book to her as a result of that, have you?‑‑‑Not yet. No.
39. You may just hold that ..... If I can show you another email. Now, Mr Edmondson – sorry, you’re still reading?‑‑‑I am. Sorry.
40. Sorry?‑‑‑Yes. I’ve read that.
41. Now, Mr Edmondson, you would agree that in the email from my client to you dated 17 February 2015 she requests for you to give X’s blue book to her by this Friday? She says:
a) This Friday, you need to give me X’s blue book.
42. ?‑‑‑I’m just looking. Yes. Yes. I see that.
43. And she then goes on to spout exactly why she needs the blue book, does she not?‑‑‑
a) I need it for his appointment with his new paediatrician and for a school health check coming up.
44. Yes. Then she goes on to also note that:
a) His doctors will need his medical records so they can give him the proper care.
45. That’s the third last line of the same paragraph – sorry, the same email?‑‑‑Yes. I see that.
46. And your response, amongst other things, is:
a) I will give you the blue book in exchange for the passport even if it is expired.
47. ?‑‑‑Amongst other things, yes.
Then, a little later still, the Father confirmed what I would call his “oppositional/propositional approach”:[8]
48. MR STAGG: Your position has been that my client will not have the blue book until such time as you have X’s passport?‑‑‑Yes. That has been my position.
49. And that has been the case, notwithstanding my client has spelt out to you exactly why she needs the blue book?‑‑‑Yes.
[8] T 37.
I put some of my concerns to the Father’s about his attitude and actions in relation to the blue book a number of times during his cross examination. The following discussion is one of them, where the Father acknowledged the inappropriateness of his actions in this regard:[9]
50. HIS HONOUR: Can I just quickly go back, Mr Edmondson, to the infamous blue book and the question or the issue that was raised that you have confirmed that you have said to Ms Sables that you wouldn’t hand over the blue book until X’s passport was provided to you. Correct?‑‑‑Yes. I think that’s right.
51. Would you accept that, on its face, that could be seen as something of a tit for tat exercise?‑‑‑On its face. Yes, your Honour.
52. So – and would you also accept, given the reasons that were laid out by Ms Sables for the need for it, apart from the obvious information that’s in the blue book about inoculations and all different sorts of things, that would be a fairly important book for the primary carer of any child to have?‑‑‑Yes.
[9] T 42.
The lengthy discussion with the Father in relation to X’s blue book concluded with the following exchange:[10]
53. And, in fact, you never in any way indicated to my client that you would give the blue book to her until today?‑‑‑I agree with that.
54. And you’ve only changed your mind sitting in the witness box now, haven’t you?‑‑‑No. I don’t agree with that.
[10] T 46.
This exchange and many like them during the trial, in my view showed clearly the extreme difficulty in the parental communication. The Father evidently believes that he communicates effectively with the Mother, and that he has done little to make the Mother’s life difficult, let alone X’s, by requiring protracted negotiations over very basic things, such as access to the child’s blue book. In my view, the Father does not communicate well with the Mother, and has a significantly unrealistic attitude to and understanding of his actions that have impacted very negatively on the Mother and her care of X. Whatever his view is of his communication, in my view, it is a form of protracted and extremely arduous, discourse that is, if not designed, certainly in effect, to wear down the Mother.
The next issue concerned the Mother’s travel overseas in connection with her employment with the Department of Foreign Affairs and Trade (“DFAT”). The Father agreed that before she could undertake such travel in 2014, she was required by the Father to meet certain conditions. One of those conditions was effectively that if the Mother was required to go overseas with her work, and she took X with her for six weeks, the Father insisted that X spend 6 weeks with him. Thus:[11]
55. Would you agree that you would not agree to her doing so until such time as she agreed to let you know take X overseas for the same period of time that she was taking him overseas?‑‑‑Yes.
[11] T 38.
As a direct consequence of the Father’s insistence on his “conditions” regarding the Mother’s travel, and his repetitious and demanding negotiating style (which comprised primarily of constant demands of the Mother and the child), she did not travel as required by DFAT.
There was also general discussion in relation to the relatively limited times that the Father has had the care of X for extended periods of time. He agreed that the Mother had been and remains the child’s primary carer, and that X had rarely been away from or out of his Mother’s primary care.[12]
[12] Generally, see the discussion at T 37 – 40.
This was followed by a further discussion about the Father’s insistence generally upon equal time with X based on a notion of “fairness.” Thus the following exchange (emphasis added):[13]
56. No. What it [the Family Law Act] takes into account is the best interests of X?‑‑‑Yes.
57. And I put it to you that you made a demand that you had the same as my client, without considering whether that was in X’s best interest or not. You did it because you “think it is fair”?‑‑‑I’m not – I don’t necessarily agree that I wasn’t thinking about X’s best interest and, in that regard, I point out to you that it wasn’t a proposal that I actually do it or that it be six consecutive weeks and that would be relevant to whether it’s in his best interests ‑ ‑ ‑
58. You never said that?‑‑‑ ‑ ‑ ‑ and what I was thinking about.
59. You never said that to my client, did you?‑‑‑She – we never got that far.
60. But you said words to the effect of, when she asked specifically – to the effect of, “It’s simple. You get X, I get X”?‑‑‑I may have said something like that. I don’t recall but it sounds right.
61. Yes. In fact, let me show you a document where you did say exactly that, Mr Edmondson. In fact, I withdraw that. I will use the exact quote:
a) What I have proposed generally is a straight swap of time. You take X away for X amount of time, I get X amount of time.
[13] T 41. See also the detail of the emails that became Exhibit B.
62. ?‑‑‑Yes.
63. …
64. MR STAGG: And going over to page 2?‑‑‑Yes. So, yes, I agree. I’ve sent an email where, among other things, I say:
a) What I have proposed generally is a straight swap of time, i.e., you take X away for X amount of time, I get to take him away also for X amount of time.
65. Yes. You do say something else. What do you say is a fairly condescending pointing out that you find her question confusing?‑‑‑Sorry. Fairly condescending that what?
66. Comment that you find her question confusing?‑‑‑There is – I do say, “I find your question confusing.” I don’t accept that that’s condescending.
It should be noted here that the Father’s simplistic equation of “straight swap” took no account of the reality that the Mother was the child’s primary carer. Again, the Father’s persistence and lack of insight was palpable.
The Father was then taken through a further series of emails in which the Mother outlined a different travel proposal arising out of her employment, for a shorter stint overseas of four weeks. Again, the Father placed what might reasonably be called “fairness” restrictions on it, namely, if the Mother went overseas with the child for four weeks, then the Father wanted four weeks with the child, notwithstanding that the child’s primary carer was his Mother:[14]
67. … And those series of emails are annexed to my client’s affidavit at annexure S3. Do you recall reading those ‑ ‑ ‑?‑‑‑I’ve read the annexures. I don’t recall reading that.
68. Yes. And, again, there was a series of emails going backwards and forwards with my client spelling out to you why she needs to go overseas and explaining to you why it is in X’s best interest for her to take him overseas and why specifically it is not in X’s best interest for you to take him overseas. And that was on the basis of X lives with her, he hasn’t had that much time with you. Do you recall those emails?‑‑‑Right now I can’t remember the – I don’t dispute it because I can’t remember.
[14] T 47 – 49.
Again because of the inability to finalise arrangements for the child in the light of her work commitments, the Mother did not go on this (employer omitted) trip.
In cross examination regarding the Mother’s third attempt to take a trip for her employment (like the other proposed trips, this was in 2014 with the Mother completing her graduate training program with (employer omitted)), the Father outlined his position as follows (emphasis added):[15]
69. That was the third – or third or possibly fourth option that was provided to you where she could attend to the (country omitted) for five weeks. Again, your response to that was, “If you take him overseas, I take him overseas” and that was where the email exchange that I previous presented to you, where you said, “If you have X, I have X” email came about?‑‑‑I think – I certainly agree that my consistent approach was that if she were to take him overseas for a given period of time that I should be able to take him overseas for a similar period of time.
[15] 49.
Again I note and stress the Father’s palpable inability to distinguish between his own interests and those of his son, in circumstances where it was never disputed that the Mother was X’s primary carer. In my view, in the light of these extended discussions, the Father showed very limited insight into the best interests of his son. What was in certain respects worse was the Father’s inability to acknowledge the inordinately burdensome nature and effort he requires of the Mother to negotiate with him in relation to matters concerning X. Even when confronted with his own comments, he failed to appreciate or even see how importunate his actions are.
For example, in relation to a third but much shorter trip with DFAT, the following exchange took place (emphasis added):[16]
70. And the case is, is it not, that when she went to the (country omitted) what eventually my client agreed to was that you would have X in your care for two weeks. X would then attend the (country omitted) with my client’s mother and she would have him in the (country omitted) for three weeks. Do you agree with that statement?‑‑‑They were parts of the agreement. Yes.
71. Yes. And the other part of the agreement was that you would then take him overseas for a period of three weeks to the (country omitted) later in the year?‑‑‑Two weeks.
72. Two weeks?‑‑‑Yes.
73. Yes. And my client agreed to that?‑‑‑Yes.
74. And would you agree that she agreed to it under duress?‑‑‑I don’t know. I know that I wasn’t willing to agree to the other things she said. I don’t think that amounts to duress.
75. If I put it in my words:
a) You either take this or you don’t go overseas
[16] T 49 – 50.
76. ?‑‑‑No, I don’t – as I said, I was very willing to negotiate. I was very willing to engage with her proposals but I wasn’t willing to agree to the other proposals that she made.
77. HIS HONOUR: Sorry. Can I ask, though, given the history of the emails that Mr Stagg has just referred to where, on one occasion the proposal put to you was six weeks, because of work commitments, and your response was, “Well, no. It has got to be an equal time. You take him overseas, I take him overseas for six weeks.” Correct?‑‑‑Yes.
78. Then another occasion four weeks and you’ve said, “No. Only if I get four weeks”?‑‑‑Yes.
79. Correct. Would you accept that perhaps looking at it from the outside, that that could be seen either to be another instance or – and obviously a different kind of a tit for tat arrangement?‑‑‑Yes.
80. And, equally, that it could be perceived to be that you see it in terms of your interests, as opposed to X’s best interests, in circumstances where you are not his primary carer?‑‑‑Yes.
There was also the following discussion:[17]
81. Now, when my client did return, there were some issues that my client ultimately did not consent to you taking X to the (country omitted)?‑‑‑Yes. That’s right.
82. And the reasons that were given for that was that X, when he came to the (country omitted), was very distressed and she could no longer accept that it was good for her – for X to be away from her for that period of time again?‑‑‑I think she did say that.
83. Yes. And you continued to demand the return of the passport to you, did you not?‑‑‑I don’t know if it came up again, but I, at all times had a standing request that she exchange back the passport. Yes.
84. My client asked you to give a commitment that if you had the passport you would not take X overseas without her consent, did she not?‑‑‑She – that’s likely. That sounds – I can’t specifically remember but, yes, I accept that.
[17] 51.
This discussion again shows, in my view, what is very close to a highly manipulative relationship, with the Father’s obdurate and persistent conduct ultimately wearing down the Mother. He would not, and does not, see his conduct this way. I suspect that he would be rather offended for it to be seen in such a way. In my view, it is difficult to see it in any other way.
The final issue to consider here from the Father’s evidence relates to the Mother seeking to negotiate for her to attend her brother’s wedding with X in (omitted) 2014. It happened that the wedding was to take place on a weekend when the Father was scheduled to have X with him. The Mother sought to make alternative arrangements and began these “negotiations” with the Father some six (6) months prior to the wedding. All of the emails relating to these negotiations are annexed to the Mother’s trial affidavit at S5. Respectfully, a multi-state trade or climate change agreement would be easier to negotiate.
Even when the Father agreed to something, he would still change his mind, and in effect, hold the Mother to ransom until he got what he wanted. In my view, the Father showed very significant disregard for X’s best interests. He was highly manipulative, parentally immature and parentally untrustworthy in his dealings with the Mother.
The ICL explored this matter as follows (emphasis added):[18]
[18] See T 86 & 87 ff.
85. So there was an agreement in principle to X spending some part of that weekend ‑ ‑ ‑?‑‑‑Being able to attend the wedding, and I – I think I said, “I think it’s really important. Your family’s really important”. I think I said that to Ms Sables and, “I’m definitely willing to do that” and she – she had offered, at the outset, that we would make up the time that I would lose, and it was just that we got – it got caught up with the negotiations, I think, for the (country omitted) trip. No, it was – I can’t remember. It got caught up with some other negotiations, I can’t remember what it was, and we – we never reached a conclusion until the week leading up to it.
86. All right. And was there ‑ ‑ ‑?‑‑‑And, indeed, we didn’t then – she told me that she wouldn’t bring him and I had my lawyer write to her or her lawyer and ultimately she said she would bring him, like, at the last moment, and then they were late, yes.
87. So they were late delivering X to you?‑‑‑Yes.
88. And then, as a result of that, you say you will be keeping him to make up that time?‑‑‑I did, yes.
89. And did that then mean that that – notwithstanding there may have been a time that had previously been agreed for X to be returned to Ms Sables in time to get to the wedding, that this was now a time somewhat later?‑‑‑It was 20 minutes later, and it was – it didn’t affect her getting to the wedding on time because she had allowed plenty of time.
90. So why did you do that?‑‑‑Because she – because I felt that it ‑ ‑ ‑
91. HIS HONOUR: You thought it wasn’t fair?‑‑‑Yes.
…
92. And you would accept, would you not, that a family wedding is a significant event?‑‑‑Yes, absolutely.
93. And there’s much excitement often attached for the family in attending such an event?‑‑‑Yes.
94. And that X may have been excited about attending that event?‑‑‑I don’t think he was particularly, but he may have been.
95. But it was reasonable for him to go to that family event?‑‑‑Absolutely. Important, I would say, not just reasonable. Important.
96. Important. And so ‑ ‑ ‑?‑‑‑Because – yes.
97. If it were your sister ‑ ‑ ‑?‑‑‑Yes.
98. ‑ ‑ ‑ would you think it reasonable for Ms Sables to deliver X late, such that that would impact on the preparations for attending your sister’s wedding? Would you think that was reasonable?‑‑‑It – it’s certainly not generous or kind but I guess that’s the history that we had gotten to. I don’t know about – you know, there was a reason, so there – it – and – and I was – I – I believed that it wouldn’t affect them getting to the wedding on time and I guess I had put ‑ ‑ ‑
99. But that was your opinion?‑‑‑So I suppose I – I do think there’s – there were reasons and I had sort of this policy that, because Ms Sables had a pattern of delivering X late – so, just to be clear, she was delivering and picking up, not me delivering and picking up – that I wanted it to be – you know, that there was some consequence so that it wouldn’t keep happening, and – and I – I said, “If you deliver him late I will return him late”.
100. And you chose to do that?‑‑‑I did.
101. On the day of her brother’s wedding?‑‑‑I did.
In my view, the Father’s conduct was breath-takingly poor and alarmingly bloody-minded. There was no consideration of the impact of his conduct on the Mother and the flow-on effects on X. The focus for the Father was on his own interests, and to punish the Mother. A significant example of parental pay-back.
His lack of parental maturity and insight was also evident in the following comment, all predicated upon a ‘tit for tat’ mind-set, which is never a basis for good parenting (emphasis added):[19]
102. MR ROBINSON: Because that was as recently as November last year?‑‑‑Yes. Well, I guess that’s the hopes I’m putting in counselling. I think it will need for both of us to lift our game, and I think particularly if Ms Sables lifts her game I will lift mine, and I know that in the past I – I have lifted my game and I’ve let it fall, for reasons of fairness or whatever, and that has probably, you know, impacted adversely on X at times, I regret to say, and ‑ ‑ ‑
103. So a change in your attitude is conditional upon you being satisfied of a change in the attitude of Ms Sables. Is that ‑ ‑ ‑?‑‑‑It’s not conditional, but obviously it will make a difference. The more we can both embrace it and go with it, the more it will help. I can do it as best I can myself, but over time it will be harder for me to sustain that on my own if Ms Sables’ not doing the same. I can do my best, but obviously I think it will help if we’re both rowing the boat the same way, so to speak, and – and that’s why I’m – we haven’t had the opportunity to try counselling individually and jointly, or to do post-separation – well, we’ve had the opportunity to do post-separation courses and we haven’t done it. I – I didn’t know of them until Dr G referred me to them and, since then, I’ve been trying to do one.
[19] T 88.
In relation to issues arising out of the family report of Dr G, the ICL put the following matters to the Father:[20]
[20] T 104-105.
104. … you would agree that it’s paragraph 14 of that report. Dr G identifies at item A the absence of an effective communication channel and I think some of the evidence we have heard over the last day would confirm that and item B, the potential for a relationship to deteriorate in the future if steps aren’t taken to improve that and a third issue being the need for X as a school aged child to be present in his local environment to develop stronger peer-based relationships and regular activities, particularly on weekends?‑‑‑Yes. I see that.
105. Yes. The minute of orders sought by – filed by you, do you think that addresses that last issue, the need for X to – I take it your position remains three weekends in – each four weeks ‑ ‑ ‑?‑‑‑Yes. It does. That’s right.
106. ‑ ‑ ‑ with two in Sydney and one in Canberra?‑‑‑Yes. It does. I would – yes. I do think that it does a good job of balancing those things. Taking into account particularly that X has peers in Canberra and in Sydney that he has regular contact with, I guess also factoring in that I guess I place substantial weight on the importance of his relationship with me and other family members to him, taking into account the fact that he interacts with his peers in Canberra, which are principally his school friends daily and that he has the opportunity to see them after school on Monday, Wednesdays and sometimes on Fridays when Ms Sables is able to collect him and, indeed, he plays with them at afterschool care and he is also able to engage in sporting and other activities on those afternoons and he has been doing swimming this term, for example. He did some swimming lessons over the summer and then I paid for him to do some swimming lessons this term on Wednesday afternoons that Ms Sables has been taking him to. And there are, I know, little soccer classes for kids on in the afternoons as well. So I think that every second weekend in Sydney does provide a good balance, you know, in the circumstances. Of course it would be better if we lived in the same place.
107. At paragraph 53 Dr G says, and bearing in mind this was prepared late last year:
a) At X’s age and with school about to commence next year, it is also important that the arrangements take account of his expanding social environment and the key developmental tasks of this period, a positive self-image and a sense of competence in the world. At this age children become aware of their place in the group, who they are, how well they think others value or like them, their skills and competencies and their ability to achieve ongoing friendships.
108. So you would say that the orders that you propose address that issue raised by Dr G?‑‑‑I do, and I have also indicated – well, Dr G has also proposed a regime whereby he comes to Sydney every second weekend and reduces the time that I have with him on the weekends that I am in Canberra and so I infer that she is of the same view. And if the court felt that the reduction in time that I spend with him on – in Canberra were necessary to achieve the right balance for X, then I would readily accept that.
There was a continuation of this discussion as follows: [21]
[21] T 105.
109. MR ROBINSON: Continuing [from par.53 of the Family Report]:
a) The current arrangements in which X spends three full weekends in full with his father, two in Sydney and one in Canberra, may need his needs while he remains young and less connected to the wider community but in the longer term may not be conducive to skill development and peer group acceptance in his local environment.
110. So that comment there by Dr G together with the answer that you have just given, would I be correct to say that – sorry. I will withdraw that. Is it the case that at the time you and Ms Sables attended upon Dr G it was thought that perhaps you and Ms Sables were much closer together in terms of resolving this matter than appeared yesterday morning when this hearing commenced?‑‑‑Well, I think that’s probably true and that’s reflected in the changing – so in – in – when Ms Sables spoke to Dr G, I think her – she had one position and then when she filed an amended response to the initiating application in January this year, she had a proposal that continued to see X come to Sydney and spend time with me in Sydney every fortnight …
Later in the Father’s cross examination, again I became concerned, and expressed it, about the Father’s pre-occupation with “his time” as opposed to what orders were in X’s best interests. This discussion took place in the context of the Father having a very young child, Y, with his new partner, Ms R, with the three of them continuing to live in Sydney. The discussion was as follows (emphasis added):[22]
[22] T 108 & 109.
111. [the ICL] I just wanted to be clear that that’s what you’re seeking. So in circumstances where you’re – under your proposed orders you’re spending three weekends out of four, and so where Ms Sables has one weekend in four, and where you have half the term school holidays, do you think that that’s a reasonable proposal to put forward?‑‑‑I do, because I’m conscious that Ms Sables has him the vast majority of the time, or currently, 22 out of 28 days and I have him six out of 28 days. That’s with the three out of four weekends and leaving aside the holiday period. So I put in slight – so that overall, the 10 weeks of holidays, I guess I’m asking for six annually. Sorry, there’s 12 weeks of holidays and ‑ ‑ ‑
112. That would be seven, would it not? Four weeks at Christmas and one week in each of the term school holidays?‑‑‑Yes. So seven out of 12.
113. Or thereabouts?‑‑‑So a 7/5 split, so a little bit more than half/half in light of the fact that Ms Sables has him so much more of the rest of the time.
114. HIS HONOUR: But do you accept, though, that the so-called “having X most of the time,” that most of that time he’s at school and there’s the so-called labour of, you know, everything else that goes with running a household and sleeping. So that in terms of actual, as is often spoken about in this courtroom, well, in courts of this kind, the so-called fun time, would in fact be significantly circumscribed by the sort of daily routines of school, shopping, cleaning, all those sorts of things?‑‑‑I absolutely accept that and I concede that that’s an imbalance. I’m just not sure how it can be addressed. I guess I miss out on that other time, which is also, as I understand, really important, that daily routine stuff, where you’re just saying, “Pick up your socks, do this, do that.” And I think that’s a really important part of the relationship and unfortunately I miss out on that. And I guess it’s not the same as the fun time, but I just don’t know how we can do it when we’re in different cities.
115. Because can I flag two of my difficulties?‑‑‑Yes, please.
116. Are this. One is, with the range of matters that you flag, both in your affidavit but equally so in your minute of orders sought, how you are going to balance the attention to X and the responsibilities that you have to Ms R and Y, particularly in circumstances where currently X’s parents live in separate cities. Hence my opening comments yesterday about matters of logistics, because while it wasn’t spelt out, related to that necessarily goes with the responsibilities, obviously, of parenthood, and to the degree that I can, and that is proper to do so, I’m very concerned about how you’re going to live something of a bifurcated life, with a focus upon X in Canberra, and Y and Ms R in Sydney.
117. I’m not seeking an immediate answer, I’m just simply flagging that these are my concerns, or this is a major concern for me. Probably that’s all I need to flag, because until we know, and this is the discussion that we had yesterday, the chicken and the egg question, until we know with a degree of certainty that we don’t know yet, whether or not you’re going to reside in Sydney or Canberra, the framing of orders and the possibilities for you vis-à-vis X in the light of your responsibilities of you vis-à-vis Y and Ms R, that they’re all unknowns?‑‑‑Your Honour, may I just say this? I understand that Mr Robinson shares your concerns.
118. But you understand that I’m the one ultimately who’s got to make the decision if you don’t agree on something?‑‑‑Absolutely, but I guess what I’m trying to say is, I’m a bit perplexed because I simply don’t perceive them, because I see that one weekend in four. So two days out of 28, I go away and some of those times, say 40 per cent of the time, Ms R and Y come with me. So that amounts to a very small amount of time that I’m away from Ms R and Y. And then the rest of the time when X is – we’re all together. We’re just like any family and we’re – so, I hear what your Honour is saying but I don’t understand the level of concern that you and Mr Robinson share. I just – I think I’m missing something.
Among other things, the Father’s pre-occupation with the quantity of time that he has with X remained clearly a primary focus for him.
The Mother’s Evidence
At the outset of the Mother’s evidence she confirmed that (a) she always tried to be flexible and to accommodate what the Father wanted in relation to his time with X, but that (b) the extended process of these protracted negotiations with the Father “always felt like punishment.”[23] Unsurprisingly, the Mother said that her times of negotiation with the Father were always “very, very difficult.”[24] I might also mention that the Mother was visibly upset throughout most of the extended hearing, not least during her cross examination.
[23] T 113 – 114.
[24] T 114.
The Father’s cross examination of the Mother, giving some allowance to a self represented litigant, but recalling that he is (occupation omitted) and works in the (employer omitted) in Sydney in (occupation omitted), was quite discursive. He sought to traverse things like the Mother’s access to counselling services through her employment, her new relationship, her range of friends in Sydney (where she once lived), and whether she might return to Sydney. This last area ought not to have been canvassed since the Father now did not challenge the Mother having moved to Canberra. It was also the fact that the Mother was permanently employed with (employer omitted) in Canberra.
The Mother agreed to feeling anger towards the Father, and that she has undertaken counselling to assist her dealing with it. She said:[25]
[25] T 123.
119. Mr Edmondson: Thank you, your Honour.
120. Can I ask you to have a look at paragraph 49?‑‑‑Mmm.
121. Dr G there refers to you experiencing intense and pervasive feelings of grief and anger?‑‑‑Mmm.
122. Do you agree that you have those feelings?‑‑‑Yes. I do.
123. Do you think that you might benefit from having counselling?‑‑‑I have been to a counsellor.
124. Do you think that you might benefit from attending counselling?‑‑‑I do attend counselling.
125. Do you ‑ ‑ ‑
126. HIS HONOUR: I’m sorry. Did you say that you do attend counselling?‑‑‑I have attended counselling and I have been to a GP and got a referral to another counsellor. So I will attend counselling.
After agreeing that it was important for X to have a good relationship with his Father, the Mother’s counselling was also to assist her in dealing with her general stress:[26]
[26] T 123.
127. Mr Edmondson: Do you agree that you feel angry towards me?‑‑‑Yes. I do.
128. Do you agree that X perceives that?‑‑‑I think that he can tell from my – just my body language and how tense I am at handovers. I think he can pick that up.
129. Do you think that that can have an impact on his relationship with me?‑‑‑Yes. Which is why I think we should have the handovers in public places, where he does feel more comfortable.
The Mother readily agreed that X’s relationship with his sibling Y, and with other members of the Father’s family, was important.[27]
[27] See T 125.
The Mother was not agreeable to attending counselling with the Father because she is so stressed. She could not be in the same room as the Father. The exchange was as follows:[28]
130. Mr Edmondson: Do you think that engaging in counselling with me at a time when you feel ready to do that could be beneficial particularly for X?‑‑‑No.
131. HIS HONOUR: Sorry. Why not?‑‑‑I think I would feel very stressed being in the same room as Mr Edmondson, and I think that it would make me – would add to my stress rather than reducing my stress.
132. But Mr Edmondson’s question was predicated on you when you are ready. Do I take from your answer that you don’t feel that you will ever be ready or not?‑‑‑I guess I wouldn’t have much confidence in – I would imagine that Mr Edmondson would want, you know, the counsellor to explain to me what to do rather than for it to be a real counselling session. If it was something that – I would honestly find it very difficult at the moment. Maybe I would be okay later.
[28] T 127.
The Mother’s anger and distress with the Father was canvassed a little later:[29]
[29] T 129.
133. HIS HONOUR: Sorry, Ms Sables. Can I ask this. It relates to an earlier question and I’m sorry for the difficulty of the question, but Mr Edmondson asked you; were you still angry with him and you said yes?‑‑‑Mmm.
134. Given how long you and Mr Edmondson have been separated, obviously in your own words rather than me to presume upon it, why are you still so angry?‑‑‑Because I think that he uses the court orders to control me, rather than to protect X’s best interests. And it has been three years now since we separated.
135. You don’t feel there’s been much progress, so to speak?‑‑‑No.
I need not explore in any detail the Mother’s evidence regarding what she said were the Father’s lack of proper caution in the care of X when he was much younger (e.g. leaving the child unsupervised in the bath when X was 2 years old).[30] Of much greater relevance was the Father’s claim (e.g. in his trial affidavit at par.94) that the Mother did not inform him in a timely manner of matters concerning X’s audiological and other health issues. By reference to various emails that were provided during the trial and which were ultimately accepted by the Father, in my view, the Mother has invariably advised the Father of such issues and appointments and has done so in a timely way.[31]
[30] See T 136 – 137.
[31] Among many places, see the discussion at T 140, 142, and especially at T 150, 158 – 162.
Two final matters are relevant to note. First, the Mother confirmed that her new male companion (Mr M) would soon move from Sydney to Canberra. He was not required for cross examination. Secondly, the Mother confirmed that she often feels bullied by the Father.[32] This militated, in her view, of the lack of utility in attending any joint counselling with the Father. Indeed, throughout the trial, the Mother presented (in my view, genuinely) as an anxious, harried and troubled person. Such a disposition is consistent with the history of the parties’ relationship evidenced through the significant email correspondence that ultimately became exhibits. They all attest to the sort of war of attrition waged by the Father against the Mother until he gets his way. And all of this with the Father genuinely believing that he was not doing anything untoward.
[32] T 144.
Should it be necessary, in my view, the Mother’s evidence should be accepted as more reliable to that given by the Father. True it is that in certain respects, when the Father was taken through certain evidence he ultimately agreed that his actions were not sound or in X’s best interests. Unfortunately, such acknowledgement came very late in the day, so to speak. As I have noted, the evidence clearly shows, in my view, the Father’s consistent and persistent wearing down of the Mother, and action such as he took regarding swapping the weekend of the Mother’s brother’s wedding, were puerile and contemptible in their harassment of the Mother.
The Evidence of the Family Consultant
I will deal firstly with the Family Report (Exhibit D), then with the relatively brief oral evidence of Dr G.
Dr G identified the following as being the issues to be determined, at pars.13 and 14 of her Report:
136. 13. The main point of disagreement centres on the number of weekends per month that X should spend with his father. Ms Sables considers that spending time with his father three weekends a month (the current arrangement) will not allow X to develop regular weekend activities in Canberra, such as attending sporting events, regular play dates and children’s parties. Mr Edmondson is concerned that any reduction in the number of weekends may erode his relationship with X, particularly since the relocation to Canberra means he is unable to be as flexible and responsive about spending time with X, including during the school week.
137. 14. A number of issues were also identified that have a bearing on what happens in the future and on X’s emotional wellbeing and relationships with both of his parents.
a) The parents relationship, the absence of an effective communication channel between them and the impact this appears to be having on the child;
b) X’s presentation in the interview, including his ambivalence about spending time with his father, and the potential for the relationship to deteriorate in the future.
c) Balancing the benefits to X of continuing regular time with friends and extended family in Sydney with the increasing need for X, as a ‘school aged child’, to be present in his local environment to develop: stronger peer based relationships, and regular activities, particularly on weekends.
In the course of her interview with the Father, Dr G recorded the following matters (at the paragraphs noted):
138. 17. He reiterated the painful nature of the relationship breakdown for both parties and the efforts made by both in the early months to retain a civil and respectful relationship. He stated that he believes this deteriorated after he opposed the relocation [of the Mother from Sydney to Canberra] and has become progressively more strained in recent times, such that it is now difficult for them to speak with each other or text/ email effectively.
139. 18. Poor communication between the parents has also meant that there is no apparent way of addressing concerns about X. For example Mr Edmondson claims he has received texts from Ms Sables telling him that he has abused and neglected X but that the inability to communicate means he has no way of understanding or dealing with the substance of these allegations.
Then at pars.21 and 22 of the Report, Dr G noted:
140. 21. Mr Edmondson spoke with emotion about his relationship with X and his fears that X may reject him in the future, particularly as the relocation to Canberra has added a layer of difficulty to spontaneity in the times they are able to spend time together. He spoke about inconsistencies in X’s behaviour, acknowledging that X is often reluctant to go with him at the changeover time but claims that he is calm and happy within “seconds” of Ms Sables’ leaving.
141. 22. He volunteered that X tells him often that he does not want to “see him”. This occurs sometimes in moments of normal parent-child disagreements and sometimes while they are playing happily together. He also said later in the day, after going for a walk with X, that X said he had told the Family Consultant that he did not want to see his father. When Mr Edmondson reportedly asked him why he said that X answered: “I don’t know”.
Of particular significance, in my view, are the brief comments at par.24 (emphasis added):
142. Mr Edmondson considers it important that he continues to spend three weekends in four with X, in accordance with his original agreement with Ms Sables. He accepts that it is important to spend one of these weekends in Canberra to reduce the pressure on X to travel and to increase his knowledge of X’s everyday world, but he also regards two weekends a month in Sydney as essential for the continuity of his relationship with X, and for X’s relationship with others in his family. He is particularly concerned about strengthening the relationship between X and his one year old brother, Y. He also considers that the second weekend in Sydney is necessary to compensate for his lack of opportunities through the week to spend time with X and the need to maximise X’s opportunities to build relationships with his paternal grandmother, aunts, uncles and cousins.
In relation to the Mother, Dr G recorded, firstly at par.26 (noting that the Mother’s relocation from Sydney to Canberra was no longer an issue):
143. Ms Sables spoke with considerable emotion about her relationship with Mr Edmondson. It was apparent that she has experienced periods of considerable distress about the extended dispute in the Court, and Mr Edmondson’s opposition to the relocation.
At par.27, the Family Consultant recorded the Mother as saying that she found the Father’s conduct towards her as being “controlling and intimidating.” At par.29, the Family Consultant recorded the Mother advising of X’s “pattern of deep distress” when it came to him spending time with his Father.
In relation to the child, Dr G noted (at par.31) action on X’s part (e.g. emotional intensity, shallow breathing etc) which are typical of children with some level of anxiety, but later (at par.38) that there was no apparent difficulty in X moving between his parents in the Court setting.
At par.44, the Family Consultant recorded X saying that he liked playing with his Father but did not want to see him. Having regard to X’s young age, I suggest such views ought not to be considered with any great weight.
In her evaluation, Dr G stated (at the paragraphs noted) (emphasis added):
144. 48. X is a sensitive, emotionally intense little boy who has apparently experienced high conflict between his parents in his vulnerable early years, as well as a number of separations and disruptions to his primary attachment figures. The abrupt and unplanned three week absence from his mother following a period of intense conflict between his parents at the conclusion the (country omitted) trip, and other changes of care arrangements in the post separation period, may have heightened X’s vulnerability in situations involving changeover between his parents.
145. 49. Although Ms Sables has apparently gone to considerable lengths to protect X from her grief and anger, its intensity and pervasiveness in the interview suggests it would be difficult to entirely conceal this from a child of X’s sensitive disposition. X’s identification of the sad bear to depict his mother when he is away from her is indicative of his awareness of his mother’s feelings.
At paragraphs 52 and 53 are important to set out in full (emphasis added):
146. 52. If the parents are unable to develop and sustain a viable, respectful channel for communication, the ongoing tension between his parents is likely to have developmental implications for X. The parents are resourceful and intelligent people who could make good use of counselling and other therapeutic services offered privately in Canberra, such as Families in Mind or (omitted) Psychologists. There are also a range of community agencies including the ARCK program which works with separated families to assist both parents to maintain a positive relationship with their children and KAYAKS, both at the Marymead Child and Family Centre which provides groups and individual counselling for children. Relationships Australia and the (omitted) Family Relationships Service also provide counselling, mediation, and group programs for separated families.
147. 53. At X’s age, and with school about to commence next year it is also important that the arrangements take account of his expanding social environment and the key developmental tasks of this period: a positive self-image and a sense of competence in the world (Erikson,1950). At this age children become aware of their place in the group, who they are, how well they think others value or like them, their skills and competencies, and their ability to achieve ongoing friendships. They need a combination of formal and informal activities (regular sporting or social activities in their local area) to help them to achieve this. The current arrangements in which X spends three full weekends in four with his father, two in Sydney and one in Canberra, may meet his needs while he remains young and less connected to the wider community but in the longer term may not be conducive to skill development and peer group acceptance in his local environment.
In relation to parental responsibility, the Father submitted that the presumption in s.61DA of the Act was not displaced. He also said that he was caught by the surprise about the Mother seeking sole parental responsibility in relation to medical matters and that he wished to lead further evidence in relation to such matters.
Regarding the legislative scaffold or pathway in Part VII of the Act, the Father submitted that the only real issue to address related to shielding X from the conflict between his parents. He said that the ambit of differences between the parties was actually small. He submitted that the recommendations of Dr G, especially in relation to counselling, will assist the parties in resolving the issues between X’s parents. As well, the Father submitted that his proposal for time (and for changeover to be at (omitted) station, rather than at (omitted)) were in X’s best interests because, among other things, “it will allow X to have more time with me [the Father]”, and will allow the Father to be more involved in X's Canberra life.
The Father noted that his proposal would impose the same burden on both X and his Mother, of three (3) weekends in Sydney per school term.
The Mother’s Submissions
Because of their relative brevity, it is apposite to set out, largely verbatim, the submissions filed on behalf of the Mother. They were relevantly as follows:[47]
[47] Internal references are to the Mother’s affidavit, dated 17th March 2015, and to the Father’s affidavit, dated 12th March 2015.
1) The respondent mother submits that there is no specific issue of credit in that the evidence of both parents was mostly honest without deliberate deceit. There was however significant difference between the parties in their interpretation of events and what evidence was provided about certain events.
2) In his affidavit, (F94) and in oral evidence, the father accused the mother of not advising him of dates for medical appointments for X. Tendered documents show that he had in fact been advised well in advance and evidence of the mother was that she always advised him of such matters.
3) The father, (F84 & Annexure A) accuses the mother of aggression but in cross examination of both the father and the mother regarding the context of where she said statements indicated, such responses were resultant from significant provocation by the father, (M 24 and 25).
4) It is submitted generally that evidence of the mother is more reliable and to be preferred over that of the father.
S61DA – Presumption of Equal Shared Parental Responsibility (ESPR)
5) The mother accepts that the presumption of ESPR under section 61DA of the Family Law Act 1975 (“the Act”) applies, (notwithstanding some concern about the father’s controlling behaviour as noted under section 60CC(3)(i) factors below), and does not oppose such an order generally. It is submitted however that in relation to medical matters only there should be an order for sole parental responsibility in favour of the mother.
6) X has a significant medical condition. The father has acknowledged that his withholding of X's Blue Book resulted in X not being able to attend necessary appointments, having to travel to Sydney for appointments, and medical professionals not having access to important medical history information (M43-49). The father accepted in cross-examination that the withholding of the Blue Book was a “tit-for-tat” because the mother had the child’s passport. He also accepted that his withholding of the Blue Book was not in X’s best interest. The father’s actions resulted in X not having an audiologist appointment for 2 years (M48). An appointment was finally attended after the initial hearing dates in March 2015. This resulted in a diagnosis of significant hearing deficiency and hearing aids being prescribed. The actions of the father have thus directly impacted negatively on the wellbeing of X.
7) The father claimed that he was not advised of dates for medical appointments but conceded in cross-examination when shown emails that on a number occasions he claimed he had not been advised that he had in fact been advised of the appointments.
8) Given the father’s past actions it is submitted that the mother having sole parental responsibility for medical matters will ensure X’s medical and health issues are addressed as necessary and in a timely manner. The mother will continue to inform the father of all non-routine medical appointments and the father is welcome to attend any appointments. The mother would consent to an order to this effect being made. The order for sole parental responsibility for medical matters will thus not restrain the father if he chooses to participate; it only prevents him frustrating and obstructing necessary medical matters for X.
S 65 DAA Factors
9) Section 65DDA(1) of the Act provides that where there is an order for ESPR the court must consider:
a) if an order for equal time is in best interest of X; and
b) if an order for equal time is “reasonably practicable”; and
c) if satisfied then consider making an order for equal time.
10) The decision of MRR v GR (2010) 240 CLR 461 provides that the court must be satisfied equal time is both in X’s best interest and reasonably practicable before it can consider an order for equal time.
11) As the father is seeking equal time in the event he moves to Canberra such consideration is necessary. It is submitted that the Court cannot be satisfied that equal time is in X’s interest or reasonably practicable.
Best Interest
12) The considerations in determining best interest for a child are contained in s 60CC of the Act. It is accepted that the criteria of s 60CC(2) are satisfied.
13) It is submitted the court would have particular consideration of the following factors under section 60CC(3):
(ca) parents’ obligation to maintain the child – The father pays child support as assessed by the Child Support Agency (“CSA”) but little other assistance, (M51 – 55). He made/makes no contribution to child care costs and only minimal contribution to medical matters. It is acknowledged that he contributes some assistance with school fees.
(d) effect of any changes in the child's circumstances – It is accepted that orders sought by the mother/ICL will result in X having less time with the father during school terms than currently, but greater holiday time. The change by way of decrease of time must be weighted against other factors outlined in these submissions.
(e) practical difficulty in spending time – this is a central issue and is considered in detail under section 65DAA(5) considerations below.
(i) The attitude of parents to the child and responsibilities of the parents - This is the other significant consideration.
It is accepted that there is no argument that the father loves X but it is submitted that the court can find he does not differentiate between his needs and those of the child.
Examples of this include:
a) Keeping X in his care for 3 weeks in (country omitted) against the wishes of the mother. (M18 -22)
b) Frustrating the necessary arrangements for the mother’s employment and overseas placements unless he had X for equal time, despite X never having been away from his mother for more than 3 weeks, and even then only because the father had retained him. (M 26 – 30)
c) General “tit for tat” demands or what was described by Dr G in her evidence as “bartering”.
d) Insistence on handover times that resulted in late travel and sleep depravation for X, (M 5 – 10 & 62).
14) In cross examination the father agreed that his demands were based on what he considered “fair” for himself and were not based on consideration of best interest of X.
15) Further examples of father’s attitude to parenting responsibilities include:
a) Refusing to provide the Blue Book to the mother (M, 46-49), as noted above.
b) Keeping X for extra time when of the view that the mother has been late regardless of, (or arguably specifically to cause), time difficulties and distress for mother and consequently X (M 25, 33).
c) On the weekend before the March hearing returned the child late having told the mother he would do so after he took X. The father acknowledged he did so against the wishes of the mother, (oral evidence).
d) The father insists on knowing the mother’s address to the extent that he has used deception to attempt to obtain it, (M 38), but in response to question in cross-examination stated he considered it reasonable to not advise the mother where he stays/travels with X. Dr G was not of the same view.
16) It is submitted that in cross-examination it did not matter how a question was put to the father his answer invariably amounted to “this is what I want”, “this is what’s fair”, or ‘this is what is convenient for me”
17) It is noted that Dr G gave evidence that she considered the father’s actions amounted to “controlling” behaviour. When asked whether it amounted to “family violence” she was hesitant but did not disagree with that description. It is noteworthy that the father continues to submit that the mother was “abusive” towards him despite the evidence, (submissions second last dot point under “Family Violence” heading).
18) Despite persistent cross-examination by the father, Dr G would not accept that the parents were equally responsible for the “bartering”, saying rather that it was her impression that the father persisted with not giving agreement until the mother “lashed out in frustration”.
S 65 DAA(5) Requirements for arrangements to be “reasonably practicable”
19) It is submitted that that the father’s proposal is neither logistically practicable nor practicable concerning communication and capacity of the parties to implement arrangements.
Not logistically practicable
20) Distance - S 65DAA(5)(a) and Impact of travel on child S 65DAA(5)(d):
a) The court can be satisfied that the current arrangements have resulted in:
b) X being exhausted by the travel to Sydney particularly since he has started school. (M 4-11)
c) A negative effect on relationship with mother (M61 – 63).
d) Disruption to X’s to schooling;
e) Disruption to friendships and formation of positive social groups, Note paragraph 53 of Dr G’s report and oral evidence.
Other practicalities:
a) Under the father’s proposal, the mother needs to travel to Sydney for no other purpose than to deliver X. She then has the choice of whether to remain in Sydney for the weekend or return to Canberra and come back to Sydney to collect X on Sunday. The father’s response was that the mother could see her family or partner while in Sydney. The mother gave evidence that her partner intends to move to the Australian Capital Territory and regardless, she would not want to travel so often anyway.
b) The mother indicated further that she would like to have another child when legal proceedings are completed. Should that occur, under the father’s proposal the mother will need to travel with a baby and “couch surf” in Sydney each time X has time in Sydney.
c) The father’s travel to the Australian Capital Territory is different. He is traveling to participate in X’s life and will stay in Canberra for the duration of the weekend to do so.
d) Traveling all the way to Sydney will require either X leaving school early or handover not occurring until 8pm or later. There is an even more significant effect on return to Canberra in that if handover is in Sydney at 5pm Sunday he will not get to bed before 9 pm the night before a week of school.
Not otherwise practicable
21) Capacity of parents to communicate and implement arrangements, S65DAA5(b) & (c);
a) The mother repeats generally her submissions in relation to S60CC factors.
b) In addition it is submitted that communication between the parents is torturous with the father continuing to impose more and more conditions to giving any agreement to requests. Most significantly, he rarely, if ever, provides a simple “yes” to a request from the mother. Instead, there is endless bartering. The evidence of Dr G in this regard was that she considered the father to be the protagonist. In cross-examination the father was invited to show where he had readily agreed to a request for a change in arrangements and was not able to do so.
c) It is submitted that there are very few examples in the evidence where the father actually agrees to a request from the mother at all, even after tortuous bartering. The evidence showed he would be “largely in agreement”, or “willing to consider” but does not actually give the requested agreement. This behavior causes the mother to seek assurance in writing. Such assurance is generally not provided but on one occasion when it was provided the father subsequently withdrew his assurance and retained X, (M 33). This was accepted by the father in cross-examination.
d) Interestingly, the father made an accusation that the mother was unreasonable in response to his requests to her (F 98), but the evidence was strongly to the contrary that she invariably agreed to the father’s requests for change.
22) In oral evidence Dr G indicated that she no longer agreed with the recommendation for time contained in her report. She gave evidence that she was “fairly dismayed” after reading the parties’ affidavits and recommended a reduction in the frequency of time. In answer to a question from his Honour, Dr G indicated that predictability of time was more important than the frequency of the time.
23) When specifically asked for a recommendation Dr G recommended every second weekend was suitable time alternating between Sydney and Canberra. It is submitted however, that Dr G did not have the benefit of hearing all evidence heard by the Court over the earlier 2 days of evidence. It is submitted that having considered all the evidence, the orders sought by the ICL and supported by the mother should be preferred.
In general, I accept the Mother’s submissions.
The ICL’s submissions I also incorporate in [almost] their entirety. I have highlighted (in bold) parts of them because of their significance, and/or because they are matters with which I agree, and rather than repeat them (in addition to comments already made), they should relevantly be taken as formal findings of the Court, particularly in relation to the legislative pathway. In making such statements, I am cognisant of the Full Court’s comments in SCVG v KLD regarding the manner in which a hearing at first instance is or may be conducted, the identification of relevant issues in the matter at hand, and the way in which the Court approaches the so-called “legislative pathway” in the course of the Court’s “consideration” of the issues in each particular matter.[48] Thus,
[48] See SCVG v KLD (2014) 284 FLR 191; (2015) 51 Fam LR 340 at [71] – [76] & [87] – [89].
1) At the conclusion of the third day of hearing and in anticipation of each party making oral submissions, it emerged that the Father had not prepared submissions in response to the legislative framework contained in section 60CC of the Family Law Act 1975. Directions were made for the filing of submissions by each of the parties and the Independent Children’s Lawyer (ICL). The ICL has sought and been granted further extensions for the filing of these submissions for which gratitude is extended to the Court and the parties.
2) There is no dispute that X shall remain living primarily with his Mother. The Father concedes in his Minute of Orders Sought that the Mother be permitted to permanently relocate the residence of X to Canberra from Sydney. The Father seeks an arrangement whereby X spends time with him each alternate weekend during school terms (3 occasions in Sydney and 2 occasions in Canberra), for extended periods in the term 1 and 3 school holiday periods and for half of the term 2 and Christmas holiday periods.
3) The Mother in her written submissions has adopted the Minute of Orders Sought handed up by the ICL at the commencement of the hearing with some variations: that any additional time X spends with the Father during school terms be specified; that the Mother not be required to provide her residential address to the Father; and that the Mother have sole parental responsibility in relation to medical matters.
4) At the commencement of the hearing on 26 March 2015 the ICL handed up a Minute of Orders Sought. Many of the orders were not contentious and were made by consent and are reflected in the Orders made by the Court on 27 March 2015. The issues remaining in dispute, and the subject of the three days of hearing were: (a) Whether an order for equal shared parental responsibility should be made; (b) The frequency of time X should spend with the Father during school terms and school holiday periods; (c) Where change-over should occur; and (d) Whether the Mother should be required to provide her residential address to the Father.
Evidence presented at the Final Hearing
Mr Edmondson - Father
5) The Father gave evidence consistent with his affidavit material. The Father was cross-examined by both Counsel for the Mother and the ICL. The Father gave evidence in a straightforward matter consistent with his Affidavit material. It is submitted the Father’s evidence was characterised by a somewhat “fixed” view of past events. The Father places the blame for difficulties in communication at the feet of the Mother. The Father only reluctantly made concessions that past events were capable of a different interpretation by other parties present. The Father’s approach to the parenting arrangements for X is determined by his assessment of what is “fair” and he is somewhat dogmatic in his reliance of this assessment.This is then reflected in his determination that all time X spends with him is strictly in compliance with any orders, and he exercises what he regards as his right to retain X for an equivalent period to make up this time if delivered late. On one occasion, the Father retained X to make up time notwithstanding he was aware X and the Mother were to attend a family wedding and that such retention may cause them to be late. The Father conceded in cross-examination that this may have been “ungracious” on his part.
6) It was evident throughout the Father’s evidence that he has a very loving relationship with X and wants to act in his best interests. The Father made an appropriate concession at the commencement of the hearing not to press the issue of relocation and to consent to X’s permanent relocation to Canberra. The Father regards X’s best interests as being in accordance with his view of those interests.
7) The Father was cross-examined in relation to his retention of X's Blue Book and gave evidence to the effect that this was available to the Mother in exchange for X’s passport. Ultimately the Father conceded that he should have returned this to the Mother sooner as she is the primary carer of X and may have required it to attend medical appointments.
Other witnesses for Father
8) Affidavits from the Father’s partner and Mother (Paternal Grandmother) were also filed in support of the Father’s case. Neither were required for cross-examination.
Ms Sables – Mother
9) The Mother gave evidence broadly consistent with her affidavit material. The Mother’s case is that the Father is obstructive and intimidating in his interactions with her and that she feels anxious when dealing with him. The Mother, similarly to the Father, has a particular view of past events and views them through a prism of the Father deliberately making interactions and communication more difficult for her as a form of intimidation.
10) The Mother gave evidence that communication with the Father is often or always difficult, suggesting that the Father never says in answer to a request “Yes, that is fine”, but rather uses the request as an invitation to negotiate around other issues. The Mother asserted that there have been occasions when she believes the Father intended that she feel scared. In answer to a question from His Honour the Mother gave evidence that “I think he [the Father] uses the Court Orders to control me rather than for X” and “When we disagree it is never about X, it is about him”.
Dr G – Family Consultant
11) Dr G gave evidence in line with the Family Report prepared by her and released to the parties on 18 December 2014. Dr G’s oral evidence supported the findings and conclusions contained in the Family Report.
12) Dr G had been provided with copies of the affidavit material filed by the parties, the Case Outlines and Minutes of Orders Sought. Dr G expressed some surprise that the matter had not resolved as she had understood at the time of the preparation of the report that the parties were close to resolution. Several themes emerged in Dr G’s evidence: the parties need to reflect on their communication; quantity does not equal quality; the Orders to be made by the Court need to allow a positive, regular, predictable and quality relationship for X with both parents; X’s best interests are met by less travel; and X’s best interests are supported by his involvement in life in Canberra through school, sporting and other extra-curricular activities (e.g. birthday parties for school friends).
13) Dr G recommended that X spend time with the Father once per month in Sydney and once per month in Canberra.
Legislative pathway
14) 60CC(2)(a) and 60CC(2)(b) – It is submitted that the evidence establishes that X has a close and loving relationship with both parents. The Orders as proposed by the ICL permit that relationship to be maintained.
15) The Mother seeks to characterise the breakdown in communication between the parties as a form of psychological abuse on the part of the Father. Whilst such a submission may be beguiling, the totality of the evidence, it is submitted, demonstrates that both parents must bear responsibility for the breakdown in communication. The Father needs to reflect on the impact of his communication style on the Mother. The Mother needs to reflect on her sensitivity to anything that may be said by the Father. Both parents have much to do to accept that there may be merit in something the other says. The conclusion of the present proceedings may provide a circuit breaker for the parents to address future communication with the common purpose of the best interests of X.
16) 60CC(3)(a): Dr G describes X as a “delightful, sociable little boy” [Family Report # 31]. X is of an age where his views are of limited weight in resolving the present proceedings.
17) 60CC(3)(b): X’s interactions with each of them during the Family Report process demonstrate the closeness and security of these relationships [Family Report # 31– 38].
18) 60CC(3)(c): The evidence establishes that both parents have been involved in decision-making for X, albeit there have been several occasions where a request in relation to one issue has been conflated to involve a range of other, often unrelated, issues.
19) 60CC(3)(ca): The Mother asserts that the Father has failed on occasion to provide funds (swimming lessons), however overall there is limited evidence to suggest the Father has not and will not meet any financial obligations. The delay in the Father providing the Blue Book is concerning.
20) 60CC(3)(d): As a result of the present proceedings some change to the arrangements is likely, however this will involve frequency and a reduction in the amount of travel being undertaken by X.
21) 60CC(3)(e): The Father resides in the eastern suburbs of Sydney and the Mother in Canberra. Travel is a real issue for both parents and various issues have been put forward. In the absence of agreement it is submitted changeovers should take place at a mid-point between Sydney and Canberra as proposed by the ICL. Such an order does not prevent the parties from subsequently agreeing to some other arrangement.
22) 60CC(3)(f): Both parents have the capacity to meet X’s needs. Both parents would benefit from sober reflection on their communication and the impact this has on X.
23) 60CC(3)(g): There are no specific matters under this heading that will assist the court.
24) 60CC(3)(h: Not applicable.
25) 60CC(3)(i): Both parents have a loving attitude towards the child. It is submitted the Father, by his reticence to make concessions that may favour the Mother, and his apparent equivalence of “quantity equals quality”, exposes himself to a conclusion that he places his own interests ahead of X’s.
26) 60CC(3)(j) and 60CC(3)(k): There are no extant family violence orders. The Mother asserts psychological violence, however it is submitted the evidence falls short of that required to make a positive finding in this respect. It is submitted the evidence also falls short of supporting an order that the Mother not be required to provide her residential address.
27) 60CC(3)(l): It is not known whether the Orders proposed will be least likely to result in further proceedings. The impact of travel arrangements may have some bearing on this.
28) 60CC(3)(m): There is insufficient evidence to support any form of Order in the event of the Father relocating to Canberra. It is not clear whether the Father has formed a settled position or timeframe for such a move.
Parental responsibility
29) The Father’s failure to provide the Blue Book is relied upon by the Mother to support an order in favour of the Mother for sole parental responsibility in relation to medical matters. It is submitted that the history around the delay in X attending the auditory appointment, particularly in circumstances where the Father himself has an auditory deficit, is not solely at the hands of the Father and from which the Mother can claim exculpation. The Mother now has possession of X's Blue Book.
30) It is submitted the presumption in favour of an order for equal shared parental responsibility has not been rebutted.
I accept the ICL’s comments and appraisal of the issues as well as generally his observations regarding the evidence and the considerations under Part VII of the Act. In particular, I accept that the principal issues for determination relate to parental responsibility, and X’s time with his Father. Another issue concerns changeover.
As I note below, I accept and prefer the evidence of the Mother to that of the Father. Among other things, the Father’s dogmatic fixation upon what is “fair” has consistently blinded him to what is in X’s best interests. What the Father has considered to be “fair” has, in my view, decidedly not been in the child’s best interests.
Indeed, the Father’s delay in providing the child’s blue health book, his intransigent “negotiation” (which was not negotiation at all) in relation to the Mother’s work-related travel, and very particularly his objectionable, obstructive and unreliable “arbitration” directed to the Mother in relation to her attending her brother’s wedding, all show a pattern of behaviour which was and is inimical to the best interests of X.
In short, the parental relationship, in my view, is and has been for a long time, highly dysfunctional in which the Father’s method of implacable, time-consuming and emotionally draining “discussion” with the Mother, has ultimately preyed on her increasing vulnerability. The Father either is blind to it, or he chooses to see the Mother’s significant emotional fragility as something that he can (and does) use to his own advantage. That said, I do not suggest that there is any malevolence by the Father. Rather, he simply lacks very significant insight into the impact of his manner and method of co-parenting with the Mother. Sometimes his actions have been clearly deliberate and brazenly indifferent to anything other than his own interests, but which he nonetheless and genuinely considers to be reasonable.
As Dr W indicated, both parties need to improve their communication.
Consideration & Disposition
In addition to the matters which I have accepted in the submissions from the ICL (highlighted in bold), the following factors, in my view, are the most significant. They are the most significant in the light of the evidence of the parties, and the evidence of Dr G, which I accept in its entirety, notably in relation to her comments concerning (a) the importance of X’s age and secure time to develop relationships with his peers, (b) the fatigue for a young child in regular long-distance travel, and (c) the emails in evidence which indicate the Father’s intransigence over a period of time and practice of “bartering” with the Mother.
What is also particularly concerning is that such a young child perceives, by reference to cards presented by the Family Consultant, that his Mother is a “sad bear.”
As earlier recorded, I should note that to the degree that there is any relevant difference in the evidence of the parties, I prefer the evidence of the Mother to that of the Father. In almost all relevant respects, the documentary evidence provided to the Court support the Mother’s version of events that were the subject of significant examination during the trial. In my view, she never sought to disparage the Father, even in situations where she was plainly at the end of her tether. And more often than not, he was relatively oblivious to the impact of his conduct towards the Mother, even during the hearing.
Both parents clearly love their son. However, in my view, the Mother’s approach and evidence clearly showed a much greater capacity to put the needs and interests of the child before all else, while the Father clearly put his consideration of what was “fair” as the pre-eminent consideration. He equated that consideration of “fairness”, which involved a very significant element of “fairness” to the Father, with the best interests of X. This behaviour and attitude must not continue.
While I accept the ICL’s submissions that the presumption in favour of equal shared responsibility (s.61DA) is not formally rebutted, the Father’s history in relation to his retention of X’s “blue book”, and the history of bartering recorded in the email correspondence that is formally before the Court, in my view is sufficiently troubling that the Mother should have sole parental responsibility in relation to matters concerning X’s health. Should such delay continue in the future, it could compromise the Mother’s need for prompt attention to X’s needs. The Mother is to keep the Father informed of decisions in relation to X’s health.
I should be taken broadly to accept the ICL’s submissions in relation to the legislative pathway, save for the following.
In accepting and thereby adopting in large measure the ICL’s submissions regarding the legislative scaffold or pathway, and in the light of the comments by the Full Court in SCVG v KLD to which I have earlier referred, in my view there is no formal requirement for me to repeat the matters or “considerations” already traversed and commented on to any significant or relevant degree.
I have already commented a number of times on what I consider to be the Father’s inappropriate conduct in wearing down the Mother. Giving every allowance to the Father as a self represented litigant and a litigant with a hearing impediment which may, over the years have given rise to some of the difficulties in communication between the parties (which the Mother acknowledged in her evidence), the Father showed, in my view, significantly limited insight into what was in X’s best interests. As I have noted already a number of times, the Father regularly equated what was fair and best in his own assessment of time with the child (a matter of quantity) as necessarily and invariably as being in X’s best interests. This was not, and is not, in the child’s best interests.
The Father saw himself as being “child focussed.” In some respects he was. There is no question that he loves X very much. However, his lack of insight, his conduct towards the Mother over a very significant period of time, and the level of contest between the child’s parents, clearly makes the orders sought by the Father completely inappropriate and untenable.
One final observation from a Full Court decision now some little time ago is apposite. In Cullen, Strauss J (as part of a Full Bench otherwise comprising Watson SJ and Bell J) said (at Fam LR p.48):[49]
192. There are few greater evils in family law than recurring litigation about custody and access. It is detrimental to the child, particularly so if he is old enough to appreciate that his parents are in legal conflict. It saps the mental, emotional and financial resources of the parties. It taxes the resources of the court and of the community.
[49] Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113.
I commend these comments to both parties. Each of them needs to take stock of how they are going to recover from this long and difficult litigious process. They need to take sufficient and likely significant time to allow the orders to bring certainly to their lives and to X’s life in particular. And they need time to seek whatever assistance they might require (post-separation courses, counselling, etc) to assist them in their on-going co-parenting into the future.
I am required to make orders that are in X’s best interests.[50] Accepting the very close congruence between those sought by the Mother and the ICL, the only outstanding issues relate to whether the very few variations sought by the Mother should be made, such as in relation to time at changeover and the like. In my view, the ICL’s orders sought, as amended by the Mother, are clearly in X’s best interests. The Court so orders.
[50] See s.60CA of the Act.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 18 December 2015
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