England & Harrisson
[2021] FedCFamC1F 317
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
England & Harrisson [2021] FedCFamC1F 317
File number(s): SYC 5095 of 2020 Judgment of: ALDRIDGE J Date of judgment: 17 December 2021 Catchwords: FAMILY LAW – PARENTING – Best interests of the child – Where the mother seeks to relocate to New Zealand with the child and for regular time to be spent with the father – Where the father seeks that the mother be restricted from moving to New Zealand for a period of time and that time spent with him rapidly increase – Where the father has demonstrated coercive and controlling behaviour – Where the parties have difficulties in communication – Orders made for the mother to have sole parental responsibility and be permitted to relocate to New Zealand – Orders made for the father to spend time with the child just short of substantial time. Legislation: Evidence Act 1995 (Cth) ss 56, 57, 135, 136
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61DA
Cases cited: Adlin & Northern Territory Central Authority (No. 5) (2021) FLC 94-019
Britt & Britt (2017) FLC 93-764
Commonwealth v Mullane (1961) 106 CLR 166
M v M (1988) 166 CLR 69
Sampson and Hartnett (No. 10) (2007) FLC 93-350
U v U (2002) 211 CLR 238
Division: Division 1 First Instance Number of paragraphs: 193 Date of hearing: 18, 19, 20 October 2021
17 November 2021Place: Sydney (via video link) Counsel for the Applicant: Mr Sansom QC Solicitor for the Applicant: Holmes & Donnelly & Co Counsel for the Respondent: Mr Levick Solicitor for the Respondent: Tiyce & Lawyers Counsel for the Independent Children’s Lawyer: Ms Messner Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
SYC 5095 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ENGLAND
Applicant
AND: MR HARRISSON
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
17 DECEMBER 2021
THE COURT ORDERS THAT:
1.That all previous parenting orders be discharged.
2.That the child of the marriage X born … 2018 (hereinafter referred to as “X”) live with the mother.
3.That the mother have sole parental responsibility subject to the mother informing the father of any decision she makes in respect of the long term care, welfare and development of X within seven (7) days of such decision being made.
4.That the mother be permitted to relocate X’s residence to New Zealand.
5.That pending the mother’s relocation to New Zealand the father spend time with and communicate with X as follows:
(a)Each weekend from 3.00 pm Friday to 5.00 pm Saturday for period of six (6) months;
(b)Thereafter the time referred to in Order 5(a) be extended to conclude at 5.00 pm Sunday;
(c)Each Wednesday from 3.00 pm to 6.30 pm;
(d)Such other times as agreed between the parties;
(e)Video communication each Monday and Thursday between 5.00 pm and 5.30 pm;
(f)That for the purposes of changeover, such to occur at X’s preschool and on a non-preschool day, at Location S with the mother or her nominee.
6.For the weekend of the 24–25 December 2021, the father spend time with X from 3.00 pm on 25 December to 5.00 pm on 26 December 2021.
7.Upon the mother’s relocation to New Zealand, Orders 8 and 9 apply.
8.That in the event that the father resides in New Zealand, the father spend time with X as follows:
(a)Each alternate weekend from 3.00 pm Friday to 5.00 pm Saturday for a period of six (6) months from the date of these orders;
(b)Following completion of the time referred to in Order 8(a) the time extend to conclude at 5.00 pm Sunday;
(c)Each Wednesday from 3.00 pm to 7.00 pm;
(d)Upon X turning four (4) years of age:
(i)The time referred to in Order 8.1 be extended to conclude at 9:00 am Monday;
(ii)Each Wednesday from 3:00pm to 7:00pm; and
(iii)Such other time as agreed between the parties.
(e)From the commencement of the short term school holidays after the completion of the first school term in 2024 for four (4) nights in the short term school holidays being at such times as agreed between the parties but failing agreement, from the first Saturday of the school holiday period;
(f)For one (1) week of the 2024/2025 Christmas school holidays as agreed between the parties but failing agreement, from 1 January 2025;
(g)From the commencement of the 2025/2026 Christmas school holidays for two (2) weeks of the Christmas school holidays as agreed between the parties but failing agreement, from 1 January 2026; and
(h)From the commencement of 2026/2027 Christmas school holidays for one half of the Christmas school holidays as agreed between the parties but failing agreement, the first half in even numbered years and the second half in odd numbered years.
9.That in the event that the father resides outside New Zealand the father spend time and communicate with X as follows:
(a)For the second weekend of each month from 3.00 pm Friday to 5:00pm Sunday;
(b)On the Tuesday and Thursday following the time in Order 9(a) from 9.00 am to 5.00 pm;
(c)Video communication between 5.00 pm and 5.30 pm each Wednesday and Sunday that the father is not spending time with X;
(d)Upon X commencing school the father spend time and communicate with X as follows:
(i)For the second weekend of each month from 3.00 pm Friday to 9.00 am Monday;
(ii)On the Tuesday and Thursday following the time in Order 9(a) from 3.00 pm to 7.00 pm; and
(iii)Such other time as agreed between the parties.
(e)Video communication between 5.00 pm and 5.30 pm each Wednesday and Sunday that the father is not spending time with X;
(f)From the commencement of the short term school holidays after the completion of the first school term in 2024 for four (4) nights in the short term school holidays being at such times as agreed between the parties and failing agreement, from the first Saturday of the school holiday period;
(g)For one (1) week of the 2024/2025 Christmas school holidays as agreed between the parties but failing agreement, from 1 January in 2025;
(h)From the commencement of the 2025/2026 Christmas school holidays for two (2) weeks of the Christmas school holidays as agreed between the parties but failing agreement, from 1 January 2026;
(i)From the commencement of 2026/2027 Christmas school holidays for one half of the Christmas school holidays as agreed between the parties but failing agreement, the first half in even numbered years and the second half in odd numbered years;
(j)Such other times as agreed between the parties;
(k)That the father gives the mother fourteen (14) days written notice of his intention to exercise time in accordance with Order 9.
10.That the father is restrained from travelling outside of New Zealand with X until such time as he has turned 9 years of age unless agreed in writing between the parties or by way of court order.
11.That for the purposes of changeover following the mother’s move to New Zealand such to occur at the preschool or school that X attends and at such other times at a place as agreed between the parties.
12.That the mother shall ensure that the father’s details are registered with any school or preschool X attends including being placed on any newsletter distribution list or app which the preschool or school may use to distribute information in the normal course to parents.
13.That unless a waiver has been granted by Legal Aid NSW then:
(a)The mother shall pay to Legal Aid NSW the sum of $6,294.75 and
(b)The father shall pay to Legal Aid NSW the sum of $6,294.75
within sixty (60) days of the date of these orders being payment of the Independent Children’s Lawyer’s costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym England & Harrisson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
Ms England (“the mother”) and Mr Harrisson (“the father”) are in dispute as to the appropriate parenting orders for their child, X (“the child”), who was born in 2018.
The mother wishes to take the child to New Zealand, so as to enable her to take up her position as an educator at the M University in City K. She contends that the father imposes a risk of psychological harm to the child so that regardless of where the child lives, the time he spends with the father should be restricted and not include any overnight time. Consequently, she proposes that she have sole parental responsibility.
The father, for his part, contends that the child should remain in Australia and that, whilst the child should live with his mother, the child should spend substantial and significant time with him, rapidly escalating to an arrangement approaching equal time. The father contends that there should be equal shared parental responsibility.
The child’s interests were represented by an Independent Children’s Lawyer (“ICL”) who proposed orders enabling the mother to take the child to reside with her in New Zealand and providing for a gradual increase in the time the child was to spend with the father.
RECUSAL APPLICATION
At the commencement of the hearing, the father applied for me to disqualify myself from the matter on the basis that comments I had made during an appeal gave rise to a reasonable apprehension that I would not bring an impartial mind to bear on the matter. These are my reasons for declining to do so.
In order to explain the application it is necessary to set out the relevant factual matrix.
It has always been the mother’s case that the father has been physically violent to her and that he is also coercive and controlling. In support of that contention, she filed and served an affidavit from Ms B, the former wife of the father. In that affidavit Ms B set out her assertions as to the physical violence she suffered at the hands of the father as well as his coercive and controlling behaviour.
The father sought an order pursuant to s 135 of the Evidence Act 1995 (Cth) (“the Evidence Act”) that the affidavit not be admitted on the ground that its probative value was substantially outweighed by the danger that the evidence might cause or result in undue waste of time. The father asserted that if the affidavit was to be admitted he would be obliged to call witnesses that would extend the hearing by four days.
It is implicit in the application under s 135 of the Evidence Act that the father accepted that the affidavit was relevant and therefore admissible (ss 56 and 57 of the Evidence Act) albeit he asserted that its probative value was low (as to the difference between admissibility and weight, see Britt & Britt (2017) FLC 93-764 at [28]–[32]). Had the affidavit not been relevant to a fact in issue it would have not been admissible and no recourse to s 135 of the Evidence Act would have been required.
On 18 December 2020, a judge of the Court made a preliminary ruling which acceded to the father’s application and ordered that the affidavit be struck out and removed from the Court record.
The matter then came before a different judge who, on 21 May 2021, refused to reconsider the earlier ruling.
The mother appealed from both of those orders. The appeal was listed for hearing on 16 June 2021 before Ainslie-Wallace and Austin JJ and myself. Ultimately, the mother accepted that the appeals could not succeed because they were from interlocutory rulings on evidence which could be reconsidered at any time and therefore were not decrees from which appeals could be taken (Commonwealth v Mullane (1961) 106 CLR 166).
During the course of the appeal I said:
[ALDRIDGE J]: Speaking for myself, in the light of what – what Dr D has said, the relevance of the affidavit is obvious. Its weight is a matter for the trial [judge] to have regard, having regard to all of the circumstances.
(Transcript 16 June 2021, p.3 lines 34–36)
Dr D is the single expert psychiatrist who has prepared a Family Report in this matter. In that report he said:
If the Court accepts that his first marriage was also associated with high conflict levels, if not domestic violence, then this would significantly raise the risk that [the child] may be exposed to this again should he form a new relationship.
(Family Report dated 8 January 2021, p.37)
The matter came before me on 18 October 2021 for final hearing. The mother again sought to rely on the affidavit of Ms B.
The principles to be applied are well known. In Adlin & Northern Territory Central Authority (No. 5) (2021) FLC 94-019, I described them as follows:
2.The test for determining whether a judge should disqualify himself or herself on the ground of apprehended bias is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at [6]) (footnote omitted).
3.In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ explained the operation of the principle as follows:
8. … Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation of the course of deciding the case on its merits…
4.It is well established that judges have an obligation to sit on matters that are assigned to them, except where there is some good reason, such as actual bias or the reasonable apprehension of bias, for them not to sit. It is not for litigants to pick and choose judges according to their perception as to the way that their choice might advantage them or disadvantage their opponents (Rajski v Wood (1989) 18 NSWLR 512 at [519]–[520]; Re: J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 per Mason J at 352).
5. In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ said:
19. Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
The father submitted that indicated that I had formed a fixed view that the affidavit was admissible. The link to the feared departure from impartial decision making was that if the affidavit was to be admitted “there is a question as to whether there was any perceived bias, apprehended bias in relation to that decision” (Transcript 18 October 2021, p.6 lines 27–28) presumably because I would not impartially consider the father’s objection under s 135 of the Evidence Act or would not impartially assess the weight to be given to it, if it was admitted.
As I have already said, it is implicit in any application under s 135 of the Evidence Act that the relevance of the proposed evidence has been accepted or determined. In the course of his submissions, counsel for the father accepted that the affidavit was relevant, that the issue was the extent of the relevance, which was said to be marginal.
This, as I understand it, is to precisely the same effect as my comments in the appeal.
Further, those comments were made in the context of the utility of the appeal, because whatever rulings had been made, the admissibility of the affidavit and the father’s objection under s 135 of the Evidence Act for that matter, were interlocutory rulings which could be revisited at any time.
I did not make any comment addressed to any objection under s 135 of the Evidence Act.
My comments were thus entirely uncontentious.
It follows that I was not satisfied that there was any basis for my recusal.
RULING IN RELATION TO MS B’S AFFIDAVIT
At the commencement of the hearing, the mother again sought to rely on the affidavit sworn on 26 October 2020 of Ms B who is the former wife of the father. That affidavit had been the subject of two earlier preliminary rulings by two judges of the Court who decided that the reception of the affidavit into evidence would unduly delay the proceedings and rejected it. They were, of course, interlocutory rulings which could be revisited at any time. The father, again objected to the evidence, asserting that its probative value was outweighed by the danger of delay in the proceedings.
The affidavit of Ms B dealt with two main topics – physical violence and coercive and controlling behaviour by the father. The physical violence that she described was of a very different nature and magnitude to that described by the mother (which was but one instance of pushing). The events occurred between 2007 and 2011 which is some time ago.
In response to the mother’s foreshadowed application to rely on the evidence, the father filed a lengthy affidavit of his own disputing Ms B’s evidence. He also filed affidavits from others directed to her evidence and advised that further affidavits were being obtained.
The matter was listed before me for three days having not been able to proceed on at least two prior occasions in 2021. The nature of relocation cases is such that they should be heard as promptly as possible. If evidence as to family violence involving Ms B was to be fully dealt with it would have made it difficult to finish the hearing in a timely manner because three days would not be sufficient and because the father would need time to adduce the evidence in response.
Taking these matters into account I determined that the appropriate course was not to admit the evidence of Ms B as to physical violence under s 135(c) of the Evidence Act.
As to coercive and controlling behaviour, Dr D, the single expert psychiatrist, considered that the evidence of Ms B as to the nature of her relationship was likely to be relevant to determining what time the child should, in his best interests, spend with the father.
I considered that if the evidence of Ms B was limited to the issue of coercive and controlling behaviour the hearing was likely to be able to be concluded within three days.
Accordingly, I accepted into evidence only those parts of Ms B’s affidavit that dealt with coercive and controlling behaviour. The upshot was that the mother ultimately sought to rely only on a few paragraphs. Paragraphs 54–57, which mentioned physical violence in passing, were admitted in full but subject to a direction under s 136 of the Evidence Act that their use was limited to the question of coercive and controlling behaviour.
Ms B was briefly cross-examined by counsel for the father. No evidence in response to her affidavit was called.
Ultimately, this evidence became essentially irrelevant. As will be explained shortly, the father’s own evidence demonstrated coercive and controlling behaviour and his counsel conceded the point. Therefore, there is no point in dealing with the evidence of Ms B further save to record the findings made below have not taken it into account.
At the conclusion of the evidence the mother again sought to reopen the proceedings as to introduce the evidence Ms B as to physical violence. In doing so, the mother accepted that if the evidence was received the proceedings would be adjourned until at least March 2022 and then with a subsequent delay until judgment was given.
I accept that the evidence is relevant because it is of physical violence. Its probative value was said to be that it identifies an increased risk of harm and goes to the father’s tendencies.
I have already described the limited nature of the allegations of family violence. There is no suggestion of any physical violence directed to the child. The probative value is limited. I did not consider that probative value to be so strong as to justify the further adjournment of a hearing that was supposed to commence over a year ago. It would extend the hearing by at least another two days to deal with the factual dispute that would arise from it. Accordingly, I did not see how the determination of what parenting orders would be in the child’s best interests would be advanced by its admission.
I was not persuaded to change the earlier ruling and refused the application.
INTERIM ORDERS
At the end of the proceedings I sought some submissions from the parties as to why overnight time should not commence immediately. As these reasons indicate, there is no objective reasons for such time not to start now and it was strongly recommended by Dr D. That is especially so given that there is a possibility that within a relatively short time the mother and child will move to New Zealand and either the father will not or will not immediately follow. It seemed to me therefore, to be in the best interests of the child for overnight time to start immediately and I made orders to that effect.
DOCUMENTS RELIED UPON
Several tender bundles were given to the Court. I indicated that only the documents specifically relied on by the parties in addresses would be taken into account. The mother supplied a list of the documents relied upon for that purpose. The father’s tender bundle was limited, as no submissions were made as to the documents in it. I have had regard to them but they attract little weight.
MATTER HISTORY
In setting out the following I have concentrated on those matters that seemed to be significant and where any dispute as to what occurred could be readily resolved. This means that some events, such as those concerning the circumstances of the father leaving a house at Suburb T (“the Suburb T property”) and whether he took furniture that did not belong to 'him are not dealt with but I do not consider that the consideration of such matters would have any bearing on the outcome.
Each of the parties is an educator with post-graduate qualifications in their respective fields. Each asserts a strong and active Christian faith. In the father’s case, he comes from Jewish heritage of which he remains proud and Jewish traditions and religious festivals form a significant part of his life.
The mother was born in Australia and is a citizen of this country, where she grew up. The father is a citizen of the United States of America (“USA”) where he has lived for much of his life. The child, is a dual citizen of both Australia and the USA.
The parties met in June 2016, were married in 2017, separated temporarily in late May 2020 and finally on 19 July 2020.
The father obtained a position at the O University in Africa (“the University”) and the parties lived there from 29 January 2018 to 15 May 2018, 3 August 2018 to 13 December 2018 and 25 January 2019 to 25 May 2019. The time in Africa was not a happy one because, for much of the time, the father was in dispute with the University over the terms of his tenure and there was also disputes with the landlords.
The parties left Africa, with the father on acrimonious terms with the University. After spending some time in Australia, the parties returned to the USA in July 2019.
On 30 July 2019, when the child was 10 months old, the parties moved to V State, USA where the father took up a position as an educator at F College (“the College”) where they lived in campus accommodation. During that period, the mother was employed part time as a teaching fellow at W University, some two hours’ drive away.
The father received a letter from the College on 15 October 2019 which advised him that although he would remain on his one year contract, he would not be required to teach his classes in the spring of 2020.
The mother sought a position at the M University, New Zealand and on 7 February 2020, the mother travelled there for a period of eight days to interview for the position. She left the child in the care of the father.
On 15 February 2020, the father was caring for the child at home when loud music started up at the nearby sports field. The father said that he was unable to find anyone to turn the music down to enable the child to sleep, so he did so himself.
The College saw the incident somewhat differently. On 18 February 2020, the father received a letter from the Dean of the faculty asserting that the father “entered a closed campus facility (the press box) without authorization and allegedly disrupted a college-sanctioned event by shutting down the public address and communication system. Furthermore, multiple witnesses state that you raised your voice and displayed anger with student employees” (Mother’s affidavit filed on 25 May 2021, Exhibit “E6”) (As per the original).
The letter enclosed a “formal trespass order” which limited the father’s access to the occupation of his home, his office and the childcare facility.
In February 2020, the mother was ultimately successful in her application and the parties made arrangements to move to City K, New Zealand, so that the mother could take up the position. The father entered into an agreement with the College ending his employment. The father did not disclose the document or the terms because he said they were confidential.
COVID-19 intervened and made travelling to New Zealand impossible, so the parties travelled instead to Australia, arriving on 27 March 2020. The parties’ undertook their 14 day quarantine at the maternal grandparents’ holiday home at Suburb T and remained living at the property afterwards.
Shortly thereafter difficulties arose and in mid-April 2020 the parties starting living in separate areas of the Suburb T property. An incident occurred on 25 May 2020 in which the mother asserts that the father became angry and threw the child’s high chair across the room causing a hole in the wall. The father accepts that he accidently kicked the high chair which made a hole in the wall. That does not seem entirely plausible unless the chair was kicked violently. In any event, the mother took the incident seriously and packed to leave the house. The father took her car keys, iPad, wallet and laptop and hid them. The mother found the laptop at the top of the cupboard and the iPad in an onion drawer, but could not find her keys or her wallet.
This led to a discussion as to the care of the child and then to the execution of a written agreement (Mother’s affidavit filed on 25 May 2021, Exhibit “E8”). It is dated 25 May 2020 and provides that the parties would share the care of the child on a day-about basis with the carer residing in the Suburb T property and the other parent staying at a nearby rented property. When this document was signed, the father returned the mother’s keys and wallet.
The pattern of hiding the mother’s items, particularly those she needed to leave the house and returning them after an agreement has been reached is indicative of coercive and controlling behaviour by the father.
On 29 May 2020, the father raised the issue of a lease of the Suburb T property which he sought to have in his name alone. Ultimately the maternal grandmother agreed and a standard residential lease was entered into between the two of them, at a rent of $75 per week.
The father then relied on the lease to limit the mother’s use of the house.
It is sufficient here to rely on what the father himself said in emails between himself and the mother as opposed to their varying recollections. It is apparent that they had decided to share the house, with the father living upstairs and the mother living downstairs. The kitchen was upstairs, and the mother sought access to the kitchen for an hour every night which led to the following response from the father:
I have tried being reasonable. But you aren’t budging. You can stay downstairs until you find a place. But after 10:15AM tomorrow, I need you out of the upstairs.
(Mother’s affidavit filed on 25 May 2021, Exhibit “E9”)
On 30 May 2020, the father wrote:
I have already been very generous with you. I am not going to have you upstairs on my nights.
(Mother’s affidavit filed on 25 May 2021, Exhibit “E9”)
That then led to a series of emails and text messages in which the father said things such as:
Well, the house is mine. So you are saying this is non-negotiable, then this isn’t going to go well for you. If you can’t be flexible here, then you can rent a different place and we can split up [the child] calendar with 7 days for you at you at your rental and 7 days for me at Y Street.
…
[T]hen I will take possession of the house at 8am tomorrow and you can get a hotel room
[D]on’t push me anymore
…
[Y]ou don’t need to [agree to this]
[I] have a lease and you dont
…
[G]et out of my house.
… I have a lease and you will be trespassing if you are still there tomorrow morning
…
Your are pushing me to do something I don’t want to do
But I will if you push me
…
Or you can find yourself in an antagonistic situation that you will lose
Do you want peace? Or do you want to lose in a conflict with me?
(Mother’s affidavit filed on 25 May 2021, Exhibit “E9” and “E10”) (Emphasis added)
The father’s oral evidence as to these comments was:
[THE FATHER]: She is clearly very, very broken by this in her emails. I think both of us are being unreasonable and I am ashamed to suggest that she needs to be out by 8 am tomorrow. That’s a horrible thing to write to one’s wife and I’m sorry for it… I did apologise to her after all this. I think I apologised on multiple occasions, if I remember correctly.
…
But reading it now, it’s – it really does stick about just – in my mind, just how horrible a sentence or sentences like that is.
(Transcript 19 October 2021, p.141 lines 1–8)
Again, the behaviour is coercive and controlling with undertones of violence.
The mother commenced her first day working at the M University on 2 June 2020, obviously remotely, from the Suburb T property. According to the mother, she had planned to use her study in part of the upstairs section of the house whilst the father was working in the dining room downstairs. She says that the father insisted that she go downstairs to work even though nothing downstairs was set up as an office. Whichever version of events is accepted, the day did not go well. Amongst other things the mother’s computer was disconnected and the mother was told to get out of the house.
The parties’ engaged in a consensual sexual activity on 15 July 2020. This led the father to joke for the next few hours that the mother had raped him.
In a text message a few days later, on 18 July 2020, the father described the mother as an “abuser” and a “rapist”. When the mother objected to these comments which she said upset her the father sent text messages that read:
You raped me on Wednesday. That’s not okay. No means no
I’m not going to put up with your sexual abuse any longer
…
Please stop your sexual abuse
I will not be silent
(Mother’s affidavit filed on 25 May 2021, Exhibit “E11”)
At the same time, on 18 July 2020, the parties took the child to a local beach together. After about 10 minutes the father, according to the mother, said “I’m leaving. You’ve prevented me playing with [the child] and now I’m taking the car. I might be back in an hour and 35 minutes” (Mother’s affidavit filed on 25 May 2021, paragraph 113). The mother said she would go with the father and went to go get a bag from the beach. On her return, the mother had found that the father had already left.
It is easy to accept the mother’s version of the event because the father sent the following text message:
You were disrespecting me so I went for a quick haircut
I don’t have to stick around when you are being disrespectful. That is a clear boundary
…
Stop playing the victim. You’re an abuser who crossed a clear boundary. You’re no martyr
(Mother’s affidavit filed on 25 May 2021, Exhibit “E11”)
Further difficulties arose the following day on 19 July 2020. The father had apparently asked the mother to assist in arranging the study for a Zoom meeting. Whatever be the lead up to it; the mother says that she was standing at the entrance to the room when the father gripped her shoulders and pushed her back into a seated position on the bed. The father then clapped loudly in front of her face and yelled “how do you like this? [W]hat is it like when someone gets in your space?” (Mother’s affidavit filed on 25 May 2021, paragraph 118).
The father’s version of the incident is that he was preparing for a job interview and sitting at his desk when the mother started pulling drawers out of the desk and yelling “[a]ll this is mine. I don’t want you in here”. The father then said:
I observed Ms England feel resistance on the top drawer against my knee and continued nonetheless – pulling it even harder. It scraped against my thigh causing the injury shown in the tendered documents. I still have a scar from this incident.
(Father’s affidavit filed on 24 May 2021, paragraph 55)
The father contends that this was a deliberate act of violence by the mother. That seems rather implausible.
A short time later, the father says that the mother “turned and walked aggressively towards me” and he believed she was going to hit him (Father’s affidavit filed on 24 May 2021, paragraph 56). He stepped back and clapped his hands together to make a loud noise and raised both hands so his palms were facing out. This apparently caused the mother to stop, step backwards and fall onto the bed. The father reported this incident to the police.
Shortly after this incident, the maternal grandmother arrived and a long discussion ensued and led to another written agreement between the parties. The father taped that conversation. In the course of those discussion the following exchange occurred:
[THE FATHER]: I swear to you I don’t believe or think or remember that I pushed you.
[THE MOTHER]: Okay. But you can see how I think that it happened (indistinct) still actually pressuring to me.
[THE FATHER]: No, I get that. I do. I get it Ms England. I would never push you or touch you, I (indistinct).
…
[THE FATHER]: I just – I don’t remember doing it, I don’t feel like (indistinct).
(Exhibit 14, p.284) (As per the original)
It has to be understood that the father is a large, tall and solid man and the mother is much shorter and slightly built. Whether or not the mother was actually pushed, which the father does not actively deny in the above passage, it is clear, as seems to have been accepted by the father, that the mother felt and, indeed was, physically pressured by him.
The signed agreement was headed “Temporary Separation Agreement” and dated 19 July 2020 (Mother’s affidavit filed on 25 May 2021, Exhibit “E13”). It required the mother to leave the Suburb T property by 7.00 pm on 19 July 2020 and to take the child to the maternal grandparent’s home in Suburb S, Sydney. The agreement required the mother to return with the child to the Suburb T property by 8.30 pm on 22 July 2020, whereupon a new agreement would be reached.
The mother did not return to the Suburb T property and parenting proceedings were commenced on 28 July 2020.
Thereafter, the father spent time with the child (initially supervised by friends and family) and then by Z Contact Service. The first scheduled time to commence under that arrangement was to take place on 5 September 2020 but did not. On 7 September 2020, the principal of Z Contact Services wrote to the mother declining to provide any further services because of what had apparently occurred on the morning of 5 September 2021. The principal said:
I wanted to advise that the conversation that was held with [the father] was very unpleasant to me. Due to confidentiality I am unable to disclose what was mentioned however I can advise that I was spoken to in a rude manner which made me feel very uncomfortable.
(Mother’s affidavit filed on 25 May 2021, paragraph 129)
At this stage solicitors for the parties became involved and thereafter a steady stream of correspondence flowed between them, making proposals and counter-proposals about the various aspects of the care of the child. I do not propose to deal in detail with this correspondence, but suffice to say, the sheer volume of it and the nature of the matters which the solicitors were required to deal is eloquent testimony to the gross difficulty these two parties have on agreeing on any course of action in relation to the child.
The mother commenced recording the Zoom conversations between the father and the child, presumably, on her computer. On 30 September 2020, this led to the father saying:
… [The father] said “just so that you know I don’t consent being recorded and I’m going to be contacting the M University to let them know that their technology is being used in this way”
(Mother’s affidavit filed on 25 May 2021, paragraph 137) (As per the original)
The father accepted that he said things to that effect and that they were inappropriate (Transcript 19 October 2021, p.157 lines 29–46). The father said that this was a threat that he never intended to follow through, but which was inappropriate and childish. Nonetheless, he repeated later in the same call:
At the end of the call, [the father] said, “Hey Ms England so I’m just going to contact M University tomorrow about their technology policy and let them work it out, ok?”
(Mother’s affidavit filed on 25 May 2021, paragraph 137) (As per the original)
The father agreed that this was a repeat of the threat to the mother, in an area in which she was vulnerable (Transcript 19 October 2021, p.158 lines 10–25).
On 18 September 2020, the child began spending time with the father supervised by BB Contact Service, initially for two hours each Friday and Saturday and then increasing to three hours.
On 19 January 2021, Senior Registrar Campbell (as his Honour was then known) made orders requiring the child to spend time with the father on Wednesdays and Saturdays from 2.30 pm until 5.30 pm with changeover to be supervised. The effect of these orders reflect the view of the senior registrar that the Zoom calls (which had been happening between the father and the child and had been a continually source of tension and friction between the parties) were not to continue.
On 23 January 2021, as permitted by the orders, the mother nominated the changeover location to be at Location AA at the intersection of CC Street and EE Street. The supervisor at this time was the maternal grandmother. On that day at 2.29 pm, the father sent the mother a text message saying the maternal grandmother and he had agreed to meet at the pool entrance at 5.30 pm. The maternal grandmother told the mother that she had not done so.
The maternal grandmother was again the supervisor on 27 January 2021 when again at 5.09 pm the father changed the changeover location to the children’s section of the library at 5.30 pm. At 5.39 pm the father sent a text message stating “I will give it another 15 minutes but then I will have to take him home with me” (Mother’s affidavit filed on 25 May 2021, paragraph 158).
This behaviour by the father led to extensive negotiations and even more correspondence between the solicitors. The father suggested picking up the child from day care, which led to the father suggesting that time starts 30 minutes before 2.30 pm, so as to transition the child from the day care centre to the father’s care. Ultimately, the parties could not agree and time continued as per the senior registrar’s orders.
Throughout 16 February and 23 March 2021 negotiations occurred about the father taking the child to the zoo and a variation of the arrangements to enable that to take place. After a series of letters passing between the solicitors between 15 and 23 March 2021, it was agreed that the father would have an additional half hour with the child every three weeks for that or similar purposes. The father hasn’t taken the child to the zoo, apparently because he considers there is not enough time to do so.
By February 2021, an arrangement had been entered into that the changeovers would occur at Location AA, this time supervised by DD Contact Service. The changeover was designed so that the father would drop the child at one end of Location AA and the changeover worker would then walk the child through the park to the other side (approximately 200 metres away) to the mother. The evident purpose of this was to avoid the mother and the father coming into contact.
The father secured accommodation close to the park entrance used by the mother. What then occurred, is apparent from the text messages that then passed between the parties.
… [The father] sent me a text message which said: “I will be walking past CC Street and EE Street before and after the visit today. If you want to make extra sure you don’t ever see me, you might want to relocate your pickup/drop off point to the corner of FF Street”.
[The mother] replied at 1.33pm, saying: “regarding pick up and drop off, please just stick to the terms of the agreement as arranged through DD Contact Service. That way there will be no cross over. Thank you”.
… [The father] had emailed [the mother] at 1.50pm, saying “I have secured short term housing on the corner of EE Street/CC Street, so that is where I need to enter and exit. The agreement with [DD Contact Service] does not say where I may enter and exit the park (see attached). You didn’t appear to have a problem sitting near me at our Court appearance, nor did you have a problem collecting [the child] from my hands following previous visits. And you insisted on watching me over video for many hours during my Zoom visits with [the child]. So I am confused where you claimed to be so uncomfortable now. Regardless, I suggest you look the other way or move your location. You are free to change what you do. But I am afraid you cannot change where I am staying. That is not reasonable”.
(Mother’s affidavit filed on 25 May 2021, paragraph 173) (As per the original)
As events turned out, after giving the child to the changeover worker at the father’s agreed drop off point, the father then walked through the park, directly to and past the mother’s agreed pick up location on his way home. The changeover worker asked him not to do so, but the father replied “I am not sure how I am going to get home if I cannot walk there” (Father’s affidavit filed on 21 June 2021, paragraph 177). He said in evidence that he walked in a straight line to his house, but observed the mother jumping out from behind a tree and back.
The father could easily have waited a few minutes for the mother to leave with the child before returning home or left by another exit and walked a longer way home. However, he did not even though he must have been aware that his conduct would greatly upset the mother, which it did.
This incident is a good example of the father’s behaviour, personality and approach to others. It supports findings that the father’s behaviour is coercive and controlling and that the father has a grandiose sense of importance, a sense of entitlement and lacks empathy as is later explained in more detail.
Communication regarding the child’s health
In August 2020, the child was diagnosed with mild to moderate hearing loss. On 31 August 2020 the mother’s solicitors informed the father’s solicitors that the child’s new general practitioner was Dr GG and that, on her recommendation, the child had an appointment with Dr JJ, an ear, nose and throat specialist on 3 September 2020. Dr JJ prescribed a steroid drop to manage an ear infection and requested an X-ray.
The father’s response on 3 September 2020 to this information was:
… “I will consent to any treatment prescribed by a doctor recommended by his normal GP in Suburb HH, provided that I can be present for the examination. It is [the child’s] best interests to see a doctor that is referred by his normal GP – not your mother.”
(Mother’s affidavit filed on 25 May 2021, paragraph 203)
The mother’s response to this is that the child had seen a doctor at Suburb HH, in the KK Region, on only one occasion, and therefore, that doctor could not be regarded as his “normal GP”. This statement was not challenged by the father.
The maternal grandmother is a general practitioner. There is no suggestion that she was providing treatment for the child, however, she had arranged for the initial hearing test to be done at the LL Clinic. She wrote a referral letter for that purpose and took the child to that appointment.
After the mother reiterated that the child’s general practitioner was Dr GG, the father responded:
“[The child’s] regular GP is in Suburb HH. Dr GG is not his GP.” [The father] said also: “[The child] has a long standing appointment for 22 September. I will be there. You must ensure he is there as well”.
(Mother’s affidavit filed on 25 May 2021, paragraph 204)
At this time, the mother and the child were living in Suburb S, Sydney. There is little practical sense in requiring the mother to travel to the KK Region to Suburb HH to see a general practitioner which the child had only seen once. Again, this is an example of coercive and controlling behaviour by the father.
An appointment with a speech pathologist was arranged for 28 October 2020. The father arrived with the intention of attending the appointment with the mother. On being informed that the father was present in the reception area, the mother sent the father a text message stating that, as she would be scared and anxious if he was present, if he intended to insist on attending the appointment the mother would be forced to cancel it. That text message was consistent with other text messages and emails sent by the mother and letters sent by her solicitors on 31 August 2020, 8 September 2020, 14 October 2020, 26 October 2020 and 29 October 2020. The mother did not receive a reply to her text messages. The father responded only once, in an email to the mother:
There is an easy solution to your concerns: you can contact BB Contact Service and have them bring [the child] to his appointment at your expense. Or you can bring [the child] and wait in the car. Or you can get over this and just take [the child] to his doctors appointment with me there.
If you are not able to take [the child] to doctors appointments in which there are many witnesses, then perhaps you are not able to be [the child’s] primary caregiver.
(Mother’s affidavit filed on 25 May 2021, Exhibit “E39”)
The mother drove past the premises of the speech pathologist and saw the father waiting there, so she left and cancelled the appointment.
The child had a further appointment with Dr JJ on 30 October 2020. As the mother parked in the car park, she saw the father waiting. When the mother arrived at reception area, the father was again waiting there. Again the appointment was cancelled by the mother.
Single expert evidence
Dr D, a child psychiatrist, was appointed as the single expert and prepared a Family Report on 8 January 2021. For that purpose, Dr D saw the parties and the child on 16 November 2020.
From his observations of the child, Dr D came to the view that the child’s progress with his speech was delayed because he continued to use single word sentences and the words he used were poorly articulated which was unexpected at his age.
When Dr D raised this with the father, he informed Dr D that, on the basis of “his reading on the subject … assessments such as by a speech pathologist are unnecessary” (Family Report dated 8 January 2021, p.34).
I pause to observe that Dr D was concerned that this statement by the father was disingenuous and self-serving because it is clear that:
The milestones outlined for children’s speech and language development on a broad array of parenting related websites make it clear that a child who has little or no capacity to extend his communication beyond single word sentences, and who has very few words which he can articulate reasonably clearly by [the child’s] current age of 2 years and 2 months, warrants a professional screening potential speech and language problems.
(Family Report dated 8 January 2021, p.34)
Thus Dr D concluded that the father’s assertions were intended to undermine the Court’s view of the mother’s parenting capacities, as she thought such an assessment was warranted and also reflected an objective inability to place his child’s developmental trajectory within a reasonable expected range.
On 19 January 2021, the senior registrar made a number of orders in relation to medical appointments, the effect of which was that the mother shall arrange them and inform the father of them, but that the father shall not attend such appointments. The fact that the intervention of a court was required so as to facilitate essential medical appointments highlights the difficulties of the parties sharing parenting responsibility.
In February 2021, Dr JJ recommended that the child have grommets inserted to help him with his ear infections and which would prevent the pain, hearing loss and the possible behaviour issues that could otherwise result. The father’s response on 4 February 2021 was:
“If you wish to schedule surgery at this time, you will need to get a second opinion by an ENT chosen by [the child’s] doctor in Suburb HH, or his paediatrician Dr MM.”
(Mother’s affidavit filed on 25 May 2021, paragraph 220)
Dr MM was indeed a paediatrician, but he had not yet seen the child as the first appointment was scheduled for 8 March 2021. The mother responded on 8 February 2021 suggesting that Dr OO give the second opinion and asking, if the father was not content with him, if he could suggest two alternatives, and the mother would arrange an appointment with one of them. The father proposed Dr NN.
According to the mother, Dr NN confirmed Dr JJ’s advice for surgery, but said another acceptable approach would be to wait six months and then review. On 18 March 2021, the father sent an email to the mother saying:
“It seems that Dr NN has a very different recommendation than Dr JJ. And further on 22 March, as for the ENT, as you describe it, Dr NN does not recommend surgery – at least not at this time. So this is very different from what Dr JJ has stated”.
(Mother’s affidavit filed on 25 March 2021, paragraph 221)
On 4 March 2021, the father sent an email to the mother saying:
“… I already booked an appointment for [the child] with an alternative paediatrician. [the child] was referred to this alternative doctor by his GP Dr. PP. I have also informed Dr MM’s office that I am happy to take [the child] to the first available cancellation that happens to fall on a Wednesday afternoon”.
(Mother’s affidavit filed on 25 March 2021, paragraph 225)
The father did not explain why the child was required to see yet two more doctors.
The father, with the agreement of the mother, spoke to Dr JJ and wrote:
… I had a nice chat with Dr JJ today. He told me that he recommends the surgery take place as soon as possible. He does not think waiting is in [the child’s] best interests, now that both he and Dr NN agree that it is necessary.
(Father’s affidavit filed on 29 September 2021, paragraph 151)
The surgery took place on 9 August 2021. This series of events is a telling example of the inability of the parties easily to agree even upon essential medical treatment for the child. One of the reasons for that is the father’s need to control.
As events turned out, the mother’s concerns were entirely justified and the father’s objections entirely misplaced.
DD Contact Service
As I have said, DD Contact Service was the supervisor of the changeovers. On 2 June 2021, DD Contact Service wrote to the father’s solicitors complaining that on 22 May 2021 and 29 May 2021 the father unilaterally sought to extend the time he had the child, beyond the three hours, by trying to arrange the same with the supervisor. The letter added:
Tor the past 6 weeks we have received phone calls every Saturday from [the father], with a complaint or adding unnecessary time.
…
[A colleague] and I have both experienced verbal abuse from [the father], as well as our field workers.
(Exhibit 14, p.57)
A further difficulty arose on 22 August 2021. The start of the visit was delayed because the child initially refused because he was tired. Nonetheless, the visit started 20 minutes late and all parties agreed that the return changeover was to be 5.45 pm. The father took the child to have a COVID-19 test and did not return the child until 6.00 pm.
On 24 August 2021, DD Contact Service wrote to the father’s solicitors concerning the visit and said:
I tried to explain this to the father, on the phone and that if he was deeply concerned with the child’s health, the visit shouldn’t have gone ahead and then he is to instruct the mother to comply with a Covid test – [the father] became very rude and abusive over the phone, he continued to manipulate the truth and at one stage created a 3 way call between [the DD Contact Service contact supervisor] and myself – [the DD Contact Service contact supervisor] is to take instructions from [another family services support colleague] or myself and is not be involved during correspondents between us and the parents. [The father] hung up on me and refused to listen to the reasoning behind DD Contact Service stance in this…
(Exhibit 14, p.59) (As per the original)
The DD Contact Service contact reports for 22 May 2021 and 30 May 2021 again show the father unilaterally changing the time and the place of change over pickups and collections from him.
Not only is this an example of the difficulties raised by the father, but the fact that the series of text messages and phone calls that took place between the mother, DD Contact Service, the contact supervisor and the father were copied to the father’s solicitors is again indicative of the difficulties the parties have in agreeing on the simplest matters.
Ms QQ’s evidence
Ms QQ is a retired solicitor who lives opposite the maternal grandmother’s home in Suburb T. On 4 January 2021, Ms QQ saw the father’s car parked too close to the corner of the street, facing the wrong way and about 80 centimetres out from the curb. Ms QQ considered this was causing difficulties to traffic in the street so she knocked on the father’s door with the intention of asking him to move the car. After the father asked where Ms QQ lived, the exchange continued:
6. …
[Father]: “Ohhhh You’re Ms TT’s friend?”
[Ms QQ]: “Well I have a lot of descriptors, but yes I guess I’m one of Ms TT’s friends”
[Father]: “Oh so you’re the woman who gave my wife the key to break in with?”
[Ms QQ]: “What?”
[Father]: “You’re the one who gave my wife the key to break into my house.”
[Ms QQ]: “That’s insane. I don’t have a key to your house. I have a key to a safe which your wife gave me when..”
[The father] cut me off and shouted:
[Father]: “Get off my land. Don’t ever come on my land again”
[Ms QQ] (moving away):
“Okay. We’re just about to mow the lawn and I just wanted you to move the car”.
[Father] (shouting):
“Why don’t you ring the police. Yeah ring the police”.
[Ms QQ]: “Well, I may ring the council”.
(Ms QQ’s affidavit filed on 25 May 2021, paragraph 6) (As per the original)
Ms QQ then went to take some photographs of the car, and according to Ms QQ, the following happened:
8.I took a photo of the number plate as I approached the car. At this point, [the father] said “Oh my God, what are your wearing? Oh my God. That’s a muumuu. That’s what fat women wore in the 80s. You’re so ugly and obese. You’re so obese. Look at you. You’re repulsive.” I replied, “I’m no fatter than you.” [The father] continued, “You’re so ugly and obese”. He said this a number of times as he approached me on the road. He was laughing loudly and saying, “Look at you, everyone is laughing at you.” I said, “I don’t think so. No-one is laughing.” [The father] said, “Yes they are. They’re all laughing at you.” [The father] pointed at [Ms QQ’s partner] who was mowing the lawn. [Ms QQ’s partner] was not laughing and there was no one else present. [The father] continued to laugh and say “You’re disgusting. You’re repulsive”. He then approached me so that he was standing right in front of me, bearing over me, and said, “Get away from my car”. I said to [the father], “I don’t need to. I’m on public property.” I did not touch his vehicle. [The father] said, “Its private space because I’m parked there.” I said “Well, that’s not right.”
9.I stepped back onto the verge to put some distance between [the father] and myself. [The father] also stepped up onto the verge and remained close to me. [The father] said, “Oh look you’re crying. You’ve got little tears”. I said “What? No I’m not”. [The father] said further, “Yes, you’ve got little tears.” He made repeated comments regarding my “tears”. I was not crying. He said again, “You’ve got tears, you’ve got little beads. And little bits of dirt. You’ve got dirt on your face. Your face is all dirty.” I said “Yes, I’ve been mowing the [back] lawn.” [The father] was standing very close to me when he said this, pointing very closely at my face. He kept repeating in a childish sing song voice, “You have dirt on your face”. I observed [the father] was becoming very animated. I said, “Wow, you’re insane.” [The father] said “Oh and you’re a doctor?”. I am not a doctor, but in the heat of the moment I responded, “Yes, I am”. I regret misrepresenting myself, however, [the father’s] behaviour was so odd and intimidating, I said this without much thought other than to close the conversation and get away from him. [The father] said, “So am I.”
(Ms QQ’s affidavit filed on 25 May 2021, paragraphs 8–9) (As per the original)
The father denied that he had spoken to Ms QQ as she suggested, but I see no reason not to accept her evidence. Although she may be a friend of the maternal grandmother, she is an independent witness and said that as a lawyer she had had the benefit of many people giving evidence for her and that she was now doing the same as a community act.
This is an example of how the father behaves when he is stressed, challenged or annoyed.
THE PARTIES’ PROPOSED ORDERS
Something as to the parties’ approach to this matter can be gleamed from the orders that each proposes.
The mother’s proposed orders, consistent with her evidence, is that the child should have a meaningful relationship with the father and provide that there be regular time spent with him. However, that time could only be described as niggardly. For example, if both parties are living in or near City K, New Zealand, the time proposed for the child to spend with the father until he is five years old (that is for the next two years) is three hours twice per week. Thereafter, the mother proposes that time take place after school until 7.00 pm once a week and for four hours on Saturday.
No doubt this is reflective of the mother’s anxiety that she has towards the father and with what Dr D described as her avoidant approach to dealing with him. Yet, the mother could not point to any occasion where the father had harmed or threatened to harm the child or where he had failed to care for the child on the limited occasions he has done so overnight. True it was, that for the eight days that the mother travelled to New Zealand, the father cared for the child with the substantial assistance of babysitters, but there is no suggestion that the child was not cared for properly and would not be in the future.
At its highest, the submission was twofold. First, that the father might, particularly in times of crisis, focus solely on himself to the exclusion of the child and thereby the child’s interests might not be put first by the father. Secondly, particularly as the child gets older, more particularly in his teenage years, the child will chafe at the controlling personality of the father which may lead to conflict between them. The latter seems to me to be a consequence of the child having to grow up with the parents that he has, and in any event, is many years away. As to the first, it remains a risk but, in the absence of any suggested particular risk of harm, it is not one that can be given great weight.
These considerations however, point to the need to craft orders that give the child sufficient time with the father but not too much and in such a way as to avoid, wherever possible, direct interaction between the mother and the father.
The father’s proposed orders on the other hand, which were provided after Dr D gave evidence, veer to the other extreme. First of all, there is a proposed restriction on the child being taken from Australia until 5 January 2023. The supposed justification for this is that it would enable the child to build a relationship with the father before being taken to New Zealand.
As discussed elsewhere, the most likely outcome is that the father will indeed move to reside in New Zealand as soon as the child does, so there is little point to the restraint. In any event, given the distance to New Zealand and the ease of travel, there is no suggestion that a meaningful relationship cannot be maintained between the child and the father even if the child remains in Australia. The order seems to me to be yet another attempt by the father to control the mother.
The father proposes that, immediately, the child spend time with him from 9.00 am Sunday until 3.00 pm Monday and Thursday from 11.00 am until 7.00 pm each week, and that that time rapidly expand so that within a years’ time the child would be spending from after school Friday until Monday with the father, and after school Wednesday to before school Thursday on alternating weeks. It was proposed that this be extended from 15 January 2024 to after school Friday until Tuesday, and after school Monday to before school on Tuesday. The father also seeks to have equal shared parental responsibility for the child in respect of all major long term issues.
As Dr D opined, having regard to the age of the child and the fact that the mother has been and will remain his primary carer, this proposal is too much, much too soon.
In addition, the father seeks to have the child on a number of Jewish holidays such as Passover Seder, which lasts for eight days and Rosh Hashanah which lasts for several days as well as five identified federal holidays in the USA. Whilst one can readily accept that the father’s American and Jewish heritage is of importance to him and something he would wish to share with his child, the time the child would spend with him under these proposed orders would greatly expend the time the child spends with him. Such time has to be seen as part of the regular time the child spends with the father and not as an addition to what is otherwise the appropriate amount.
The proposed orders seem to me to be insensitive to the needs and best interests of the child. To be proposed, despite the clear evidence of Dr D which was strongly against such orders, indicates that they seem to be designed to suit the father and not the child.
STATUTORY CONSIDERATIONS
In determining what parenting orders should be made, the best interests of the child are the paramount consideration (s 60CA of the Act). In determining those interests the Court must have regard to the considerations set out in s 60CC of the Act.
Meaningful relationship (s 60CC(2)(a) of the Act)
The first of two primary considerations raised by s 60CC of the Act is the benefit to the child of having a meaningful relationship with both parents (s 60CC(2)(a) of the Act). A meaningful relationship is one which is important, significant and valuable to the child.
There is no doubt that the child has, and should have the benefit of a meaningful relationship with both parents. He has two loving parents who both care for him very much and he will benefit greatly from having them both in his life.
The need to protect the child from physical or psychological harm (s 60CC(2)(b) of the Act)
The second of the two primary considerations is whether or not there exists an unacceptable risk of physical and/or psychological harm to the children in spending time with either parent.
As I have said, there is no suggestion that the evidence discloses any reasonable suggestion that the child would be subject to physical abuse or neglect in the care of the father. There is a risk that he may suffer psychological harm whilst in his care, if the father becomes stressed, challenged or annoyed. His behaviour to the mother and to Ms QQ are prime examples. Dr D opined that, in such a case, the father needs to be “in the driver’s seat” and would then have a limited view of his son’s emotional needs because he has a lack of empathy and is particularly vulnerable to thinking about himself (Transcript 17 November 2021, p.251 line 31). However, Dr D considered that the bigger problem was if the father moved into another relationship that led to conflict within that relationship. Dr D said that the father’s response to such conflict is typified by his response to Ms QQ, which is an example of how the father tends to deal with conflict. In such circumstances, the child would find the father’s behaviour frightening, upsetting and eventually damaging.
Dr D also said that there was a risk of the father exercising abnormal control over the child and his activities, which was unlikely to be a problem until his teenage years and would be more of a problem if he was living with the father full-time.
These risks are not immediately present, as the father has not re-partnered and another relationship is not on the horizon. Further, the identified risk can be ameliorated by making appropriate orders for the time the child is to spend with the father, increasing gradually and not providing for too much time with him. Indeed, Dr D’s opinion, which I accept, is that the ideal time would stop short of substantial time. In this regard, generally speaking, the orders proposed by the ICL strike the right balance.
The nature of the relationship with the child’s parents and other people (s 60CC(3)(b) of the Act)
The mother is the primary caregiver of the child and, save for her reluctance to have the child spend time with the father, there is no criticism of her parenting capacity.
On the other hand, there are some difficulties with the father’s approach to parenting. Whilst Dr D was not prepared to commit to a diagnosis of narcissistic personality disorder, he was of the view that the father had a grandiose sense of importance, believes that he special, requires excessive admiration, has a sense of entitlement, lacks empathy and Dr D would not be surprised if the father was exploitative of others to achieve his own ends. These are some of the elements of a narcissistic personality disorder identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The important issue, however, is the behaviour of the father and any effect on the child rather than the diagnosis of a specific disorder. The father has no respect for personal boundaries.
These aspects of the father’s personality affect his parenting capacity to a significant degree in that his focus is less likely to be solely on the child and more likely on himself, particularly in times of stress or conflict. This too suggests the child should not spend too much time with the father too soon.
According to Dr D, the father will be an overindulgent father, but in appropriate incidences are unlikely to be frequent.
Having said that, Dr D observed the father and the child to relate easily and well. It is not disputed that the child will benefit from an established relationship with his father.
Those same observations confirmed Dr D’s view that the mother had a greater parenting capacity than the father.
The father relied on a report from Mr RR, a counsellor, who provided couples therapy to the mother and father and, after separation, psychotherapy to the father. He had been provided with the report of Dr D. It is a fair summary that he was much more supportive of the father’s case than was Dr D.
Mr RR was not aware of the evidence in this proceedings and his view of the father can therefore only be drawn from the counselling and psychotherapy sessions. This limits the weight that can be given to his opinions. This was exacerbated because he died before the hearing and did not give any oral evidence.
Finally, Mr RR had a Diploma in Community Services Welfare and a Masters in Counselling. I would not see him as well placed as Dr D to provide psychiatric and psychological insights.
For these reasons I have given little weight to Mr RR’s evidence.
The maternal grandparents live in Australia and it was not suggested that they had anything other than a caring and loving relationship with the child which is of value to him.
The father submitted that this relationship would be lost if the mother was to move to New Zealand. I accept the relationship might become different in nature because direct contact would be less frequent, but I do not think its beneficial nature would be lost.
The extent to which each parent has taken the opportunity to participate in making long term decisions in relation to the child and to spend time with and communicate with the child (s 60CC(3)(c) of the Act)
There is no doubt that each of the parties has taken the opportunity to participate in the decisions about the child. Indeed they do so to an obsessive degree. This is in part due to the father’s personality and his need to be involved in the parenting of the child which results in difficulty if the mother does not see it his way.
The father is keen to spend more time with the child and communicate with him more frequently.
The extent to which each parent has fulfilled their obligation to maintain the child (s 60CC(3)(ca) of the Act)
Apart from paying for the grommet surgery, the father has made no contribution to the upkeep of the child and the mother has not sought such assistance from him.
It is reasonable to expect that the mother will bear the major, if not all, of the costs relating to the care of the child whilst he is with her.
The likely effect of any change in the child’s circumstances (s 60CC(3)(d))
The likely effect of any change in the child’s circumstances is if the mother and father both move to reside in New Zealand, to which then the orders made will provide for a regime that will see the child living with the mother and spending appropriate time with the father. That would be the ideal arrangement and the effect of the child’s change in circumstances (that is from Australia to New Zealand) will be minimal. The child will not see his maternal grandparents as often, but as I have said that relationship is likely to be maintained.
If the mother and the child reside in New Zealand and the father remains in Australia, the nature of the relationship will be different. It will not be optimal, however, the orders that are to be made will see regular time with the father and will be sufficient to maintain a meaningful relationship between the father and the child. The orders would provide for regular physical time, plus frequent webcam communication time.
As the child gets older he will spend more time with the father including significant blocks of school holiday time.
The practical difficulties and expense of a child spending time and communicating with a parent (s60CC(3)(e) of the Act)
Again the only practical difficulties that will arise is if the child and the father are not in the same country.
Whilst there is some suggestion that the father might not be able to find work readily in City K and is more likely to find work in City SS, the distance between them is not so great that to give rise to any significant practical difficulty in implementing the orders.
If, as seems unlikely, the father remains in Australia, the major expense and difficulty will be the cost of airfares and accommodation. The cost should be manageable however, because both parents are highly educated and the likelihood is that they will be in positions of employment that will permit such travel to occur.
The capacity of each of the parents to provide for the needs of the child (s 60CC(3)(f) of the Act)
This has been discussed elsewhere and the orders will reflect the somewhat more limited parenting capacity of the father.
The attitude of the parties to the child and the responsibilities of parenthood demonstrated by each parent (s60CC(3)(i) of the Act) and the issues of family violence (ss 60CC(3)(j) and (k) of the Act)
Likewise, these issues have been dealt with elsewhere.
HAVING REGARD TO THESE CONSIDERATIONS, WHAT ORDERS ARE IN THE CHILD’S BEST INTERESTS?
Whilst there is no direct concession to this effect, the orders proposed by the father and the submissions made on his behalf reflect the reality that the mother should be the primary caregiver for the child. The mother has been the primary caregiver for his first three years of his life and there is a close attachment between them. There is nothing to suggest that the mother is anything other than an appropriate carer for the child. Therefore, the matters that remain for consideration are, whether the child should live in New Zealand or Australia, who should have parental responsibility for the child and what time the child should spend with each parent.
New Zealand or Australia
The parties are accidental residents of Australia as their intention was to live and work in New Zealand and, but for travel to New Zealand being disrupted by COVID-19, they would have.
The mother has family ties (parents and siblings) in Australia but there is no reason to think that those relatives would be any less available or supporting of the mother if she was residing in New Zealand rather than in Australia. The distance is likely to make physical contact less frequent but that is all.
The mother has employment in New Zealand which she uses to support herself and the child. The M University has been both supportive and understanding of the mother working remotely from the campus, but it is clear that the University would prefer the mother to be physically present from February 2022, or if these proceedings did not allow, from July 2022. However, as the University informed the mother, her working remotely cannot continue indefinitely. The reality is that if the mother does not move to New Zealand by some stage next year she is at risk of losing her employment.
Importantly, the mother is free to live where she chooses except in the rare event where orders as to her residence are necessary for the best interests of the child (M v M (1988) 166 CLR 69; U v U (2002) 211 CLR 238; Sampson and Hartnett (No. 10) (2007) FLC 93-350).
As there is no suggestion that there should be any other order, other than that the mother should be the primary caregiver, these matters suggest that there should be no restriction on the mother moving to New Zealand with the child.
For his part the father submits that he has links to Australia, being his work, his friends, his church and has become a member of the UU Service. As to the first, the father is employed by the VV Group. There was no evidence however, as to whether he could continue that employment remotely in New Zealand, or whether the move to New Zealand would have any impact on his employment at all.
The family has only lived in Australia for a short time but, accepting the father has met and made friends and established himself in a church that is of value to him, less weight must be given, than is to long standing relationships.
It is to be remembered that in the course of his employment in recent years, the father has been prepared to move from the USA to Africa back to a different part of the USAs and then to New Zealand. This readiness to travel to where there may be appropriate employment is reflected by the fact that whilst in Australia, the father applied for positions at a variety of universities around Australia, including some located in Western Australia, South Australia, Victoria and Queensland. It follows that if the father had obtained any of the positions he would have been required to move away from Sydney, where the child currently is, in order to gain that employment. When confronted with this issue, the father’s position was, not all of these positions would require him to be physically present at the university and if he gained a position at one where his physical presence was required, he would negotiate with the university about working remotely.
Two things may be said about this evidence. First, it seems to me to be somewhat disingenuous because the likelihood of a university engaging a lecturer with the intent that they be present on campus only to permit them to work entirely remotely is unlikely. Secondly, to the extent the father believes that his powers of persuasion would bring the university around to his way of thinking, it is reflective of his grandiose self-importance and sense of self-entitlement.
I do not understand the importance of the father’s association with the UU Service, given that he lives in an inner Sydney suburb. It may be that what he has done with the UU Service has created activities, links and friendships that are of value and importance to him, but if that is so they were not disclosed in his evidence. He merely said it was of significance to him.
In short I am not satisfied that the father has any substantial links to Australia that would prevent him travelling to New Zealand. Indeed, the father’s own evidence was that he would seriously consider travelling to New Zealand should the child do so and that his intention was to be in the same country as the child.
I find that it is much more likely than not, that the father will travel to New Zealand to be with the child should the child live there.
There was no suggestion that there was any impediment to the father travelling to or living in New Zealand.
I am satisfied that it is in the best interests of the child that the mother be allowed to take the child to live with her in New Zealand.
Parental responsibility and family violence
Counsel for the father very properly and most correctly conceded that the conduct of the father as set out in the evidence amounted to coercive and controlling violence within the definition of family violence contained in s 4AB of the Act. I agree and therefore do not need to rehearse the events referred to in [24]–[37] and [47]–[97] above.
The effect of the finding is that the presumption in favour of equal shared parental responsibility no longer applies and the Court is to consider what order for parental responsibility is in the child’s best interests having regard to all of the material before it (s 61DA of the Act).
The mother seeks an order for sole parental responsibility based in part on the coercive and controlling behaviour of the father and in particular the extraordinary difficulties in communicating with him and agreeing on what should be done in the best interests of the child.
These reasons have discussed the difficulties in communication.
The point of particular significance is not only do the parties not agree, but the strong impression is obtained, that one of the reasons for the disagreements is that the father has to have everything his way and he is seeking, through the approach to the child, to once again have control of the mother. This of course, has the effect of making the mother even more avoidant.
The father submitted that up until now, the mother has been the gateway to time with the father and that whilst she espouses the importance of the child having a meaningful relationship with the father, the time that she permits the child to spend with him does not have that effect. It is true, as can be seen from the mother’s proposed orders that she remains resistant to any form of increased time with the father. There is force therefore in the father’s submissions that an order for sole parental responsibility would empower the mother to continue to restrict time with him.
To be weighed against this consideration is the fact that the difficulties the parties have goes beyond simple disagreement and are a continuation of the father’s attempts to continue to control the mother which also have an adverse effect on the child. The delay and difficulty over the surgery for the child’s ears is a good example of where such communication difficulties adversely impacted on the well-being of the child. The constant involvement of solicitors in making the simplest of arrangements also points against shared decision making.
The difficulties as to the mother facilitating time with the father can be ameliorated by appropriate orders for time, which will bind the mother. The mother will have sole parental responsibility for the child.
The time the child is to spend with the father
This, perhaps surprisingly, was the most intense area of dispute. Indeed, the mother considered the issue of time the child was to spend with the father as more important than the relocation to New Zealand and her continued employment. That speaks strongly to the mother’s fear and avoidance of the father. That fear, however, is not reflected in the father’s behaviour towards the child. Ultimately, there is an intensively conflictual and difficult relationship between the parents but not a significant risk as to harm to the child in the care of the father that requires that time the child is to spend with the father to be tightly constricted.
I accept Dr D’s opinion that the time the child spends with the father should be sufficient to enable him maintain and develop a meaningful relationship with the child and enable the child to receive the benefits of the father’s care and rich heritage. The mother’s proposal is inadequate for that purpose. Importantly, Dr D said, and I accept, the child will not be able to have a strong relationship with the father unless there is overnight time.
Having said that, having regard to the age of the child and the limited time he has spent with the father so far, I will make orders largely along the lines proposed by the ICL, which seem to me to strike the balance between the competing considerations. They provide for an appropriate extension of overnight time and, in course, block school holiday time. Dr D supported orders along these lines saying that, ultimately, the time the child should spend with the father should fall short of substantial.
Such orders are in the best interests of the child.
Those orders will include video communication time. I accept that video communication is very difficult with three year olds, as they are easily bored, often want to do something else and need assistance with it; but, those difficulties will reduce as the child grows older. It is a means of keeping a young child in touch with his father.
I will not make the orders for special holiday time sought by the father for the reasons given earlier.
THE FATHER’S APPLICATION REGARDING THE PARTIES’ SHIPPING CONTAINER
Finally, the father sought an order that upon a shipping container, containing the parties’ belongings, reaching either Australia or New Zealand, he is to be provided first access to remove his belongings from that container.
I see no basis to make such an order, because no doubt both parties have private documents and objects that are of significant value to them in that container and I do not see why either party should have first access to it. This is something they will have to sort out together.
COSTS
Neither party objected to the costs order sought but the ICL which I will make.
I certify that the preceding one hundred and ninety-three (193) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 17 December 2021
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