ESPLIN & ESPLIN
[2015] FCCA 1566
•10 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ESPLIN & ESPLIN | [2015] FCCA 1566 |
| Catchwords: FAMILY LAW – Parenting dispute – both parties self-represented at trial, with associated forensic difficulties – teenage children not wanting to spend time with father – whether this caused and/or encouraged by mother – both parents extremely critical of the other – father’s personality and parenting style – family report writer recommending sole parental responsibility to the mother – consideration of the children’s best interests – orders made as sought by mother. |
| Legislation: Family Law Act 1975, s.60CC |
| Goode v Goode [2006] FamCA 1346 |
| Applicant: | MS ESPLIN |
| Respondent: | MR ESPLIN |
| File Number: | MLC 11164 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 7 April 2015 |
| Date of Last Submission: | 7 April 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 10 June 2015 |
REPRESENTATION
| The Applicant: | In Person |
| The Respondent: | In Person |
ORDERS
That the children X born (omitted) 1999 (“X”), Y born (omitted) 2013 (“Y”) and Z born (omitted) 2001 (“Z”) (“the children”) live with the mother.
That the mother have sole parental responsibility for the children.
That the father spend time and communicate with Y and Z for a period of four hours per month.
That the father spend time and communicate with X as per X’s wishes.
That the time the children spend with the father is to be supervised by the father’s partner if she is available or another supervisor as agreed between both the mother and father.
That the time the father spends with the children occur within a 30 minute travel distance from the children’s residence.
That the children are at liberty to choose if and when they would like to communicate by telephone with the father.
That the father contacts for information about autism spectrum disorder and the free education sessions this service offers.
That the parents are restrained from discussing parenting issues and these proceedings with the children.
During any and all time the father spends with the children the father shall refrain from drinking alcohol while the children are with him and for 24 hours prior to time spent.
That all previous parenting orders be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Esplin & Esplin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLC 11164 of 2013
| MS ESPLIN |
Applicant
And
| MR ESPLIN |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a parenting dispute about three children, X born (omitted) 1999 (“X”), Y born (omitted) 2013 (“Y”) and Z born (omitted) 2001 (“Z”) (“the children”). The parties are vividly in dispute about the question of parental responsibility, and the amount of time that the children spend, if any, with the father.
Both parties were legally represented until relatively late in the day, but in the ultimate, were self‑represented at trial. Doubtless Judge Whelan, in whose docket they previously were, did not appoint an Independent Children's Lawyer because the parties had legal representation, but the net effect of the late withdrawal of legal representation presents obvious forensic difficulties.
The family consultant who prepared the family report dated 11 August 2014, Ms P, has recommended that the mother have sole parental responsibility, and that the children live primarily with the mother. Ms P recommends that X be able to choose when and if he spends time with the father, and that the two younger children, Y and Z, spend four hours per month with him, supervised by Ms I, or if she is not available, another supervisor agreed by both parties.
For the reasons that follow, I will make orders substantially as proposed by Ms P.
The Parties' Affidavits
While I have carefully read the parties' affidavit materials, it is not, in the context of this proceeding, necessary or appropriate to recite them in detail. They constitute, in the main, a slightly depressing series of criticisms and mutual calumny by the parties against one another. The father's affidavit material broadly asserts good ongoing relationships with the children, an involvement on his part in their lives when the parties were together, and a litany of complaints as to the mother's failure to promote his relationship with the children, and her endeavours to undermine it.
The mother's countervailing complaints broadly suggest a lack of appropriate engagement by the father with the children, a lack of insight generally, and more particularly about the various significant health difficulties faced by the children. She also asserts inappropriate and belittling remarks made by the father to the children, and consequential lack of desire on their part to see him.
Some Uncontroversial Facts
For all that the parties had to say about one another, it seems to me uncontroversial that the parties commenced their relationship in about 1998, marrying in (omitted) 1999. As indicated, X was born on (omitted) 1999, Y on (omitted) 2000, and Z on (omitted) 2001.
It seems clear that the relationship was in difficulty by at least 2003, and separation appears to have taken place in 2005. Orders were made by consent in the Family Court on 20 October 2005. Those orders provided for joint parental responsibility and for the father to see the children on alternate weekends and during holidays at times to be agreed, with time for special days likewise agreed, and by telephone at reasonable times.
On any view of the matter, that regime has certainly not been followed to the letter thereafter.
This tranche of proceedings was commenced by a contravention application filed by the father on 20 December 2013, and that application asserted widespread ongoing failure by the mother to comply with the extant Court orders.
On 19 February 2014, Judge Whelan made orders relevantly for a section 11F report, with the matter to come back before the Court on 6 May 2014. The child inclusive memorandum to court prepared by Ms P was exhibited at trial.
The Section 11F Report
The following relatively extensive extract from the report records, in my opinion, very well the nature of the matters asserted by the parties in their affidavits.
“Risk Factors:
Ms Esplin reports there is a history of family violence between the parents, and there is a current Intervention Order against Mr Esplin and a hearing regarding a breach of this order that will be taking place on 17 April 2014 at the Werribee Magistrates Court.
Ms Esplin's account of the history of family violence, which occurred in front of the children, took the form of coercive controlling violence and largely in the form of verbal violence from Mr Esplin.
Since the family separation Ms Esplin reports that the denigrating comments have continued and resulted in an interim IVO being made in January 2014.
However, Ms Esplin's concerns are largely that as the children have matured and are more able to resist their father's demands, his verbal violence has increasingly been directed towards the children.
Mr Esplin denies family violence and reports that the two interim intervention orders in 2013 resulted in undertakings not to stalk Ms Esplin.
The parents report no current involvement with Child Protection, but report previous involvement that resulted in a referral to Child First for Ms Esplin.
Ms Esplin alleges that Mr Esplin has problems with alcohol misuse that results in him driving the children under the influence, and increases the risk of family violence towards the children. Mr Esplin denies that he drinks to excess.
The parents disagree regarding medical opinion and diagnoses that have been obtained regarding the children's needs, and in particular that Z suffers from ADHD. Ms Esplin reports that Mr Esplin is neglectful and dismissive about the childrens’ medical and psychological needs, while Mr Esplin reports that Ms Esplin's interest in the children's needs is related to having her own needs met.
Mr Esplin claimed that the children are missing school at a rate of nearly 30% of days absent.
Ms Esplin reports that the children are frightened or anxious about their father do not wish to spend time with him. Mr Esplin reported that the children have positive relationships with him, and if they reported that they do not, this is due to Ms Esplin aligning the children against him.”
In her observations about the parties, Ms P included the following:
“At interview Ms Esplin demonstrated a tendency to refer to the parenting dispute as being essentially about the children's wishes not to see their father. Ms Esplin demonstrated low levels of insight about how her negative views about the father may have influenced the children's views.”
“Ms Esplin has a daughter by a previous relationship; W, aged 20 years; and Mr Esplin has two sons by a previous relationship ; U aged 20 years, and T aged 19 years. In confirmation of Ms Esplin's claims, Mr Esplin reported that he has no contact with his older sons, and he attributes this to their mother aligning them against him.”
“At interview the boys indicated strongly that they did not have positive relationships with Mr Esplin and that they did not wish to spend any time with him. All of the boys reported personal accounts that indicated that the difficulties in their relationship with their father were significant and long term. In terms of the boys' accounts, it would appear that Mr Esplin has a high criticism and low warmth parenting style and that the boys do not feel that Mr Esplin has an interest in who they are as individuals.
The children report that when Mr Esplin's partner Ms I is present during time, his behaviour towards them is improved.
The boys have not spent time with Mr Esplin since January 2014, although they have had brief conversations with him to refuse to spend time with him as Court ordered in February 2014.
The boys reported significant time commitments to homework, extracurricular and social activities. From their accounts, it would appear that Mr Esplin has not been flexible in terms of time arrangements and the children's other activities, and that the lengthy drive to their father's home is onerous.
However the children's accounts also suggested that they had come to the Child Inclusive Conference prepared with many arguments about why they should not spend any time with their father. This suggested that, at the least, they have been exposed to an idea that spending time with their father is optional.”
Ms P went on to recommend a regime of time, two to three hours per month, between the boys and Mr Esplin, and noted that it might be helpful if Ms I was in attendance during such time. Ms P went on to recommend various services to assist the parents in dealing with the difficulties with which they were confronted.
Orders Made on 6 May 2014
On 6 May 2014, no doubt following argument, Judge Whelan made orders for a spend time regime from 9:00 a.m. until 4:00 p.m. each alternate Saturday for all the children, and listed the matter for hearing on 15 August 2014. A further and full family report was also ordered.
The contravention application filed in the meantime by the father on 1 May 2014 was adjourned for interim hearing on 27 November 2014. It is not immediately apparent to me what happened to the father's original contravention application by which this tranche of litigation was commenced. .
The Report from Department of Human Services dated 12 March 2014
The Department of Human Services (“DHS”) provided a response to a notice of child abuse on 12 March 2014 which noted three previous reports to Child Protection. The report noted a report received on 23 February 2014, alleging that the children were at a risk of emotional harm in the care of their mother. The report relevantly asserted:
“The reporter believes the risk is present as it is alleged that the children X, Y and Z have displayed extreme verbal and physical aggression towards their father when he went to pick them up for a contact visit 22/02/2014. The incident resulted in damage to the father's vehicle and was reported to the police. It was reported that the father is concerned the aggression reflects what the children are exposed to in their home where they reside with their mother and uncle.”
While this, of course, was the report that gave rise to the Department's involvement, I note that the report goes on to say:
“Follow up with the Principal and Assistant Principal of (omitted) College has determined that the school had no concerns for the children. Their appearance is fine, and there are no major discipline issues.”
The report went on to conclude that there was sufficient safety in place for the children, noting that they were supported by a psychologist, the school welfare coordinator and a family support worker. The report concluded, in my view correctly:
“There appears to be ongoing conflict between the parents which has led to this and previous reports being made. This matter is best managed through the FLC as the father is currently seeking custody. At present there is no role for Child Protection.”
On 25 August 2014, Judge Whelan set the matter down for trial, and relevantly ordered that the applicant's solicitor provide details of the children's treating medical practitioners to the solicitors for the father.
It should be noted that the contravention application filed in May 2014 was dismissed by consent at the commencement of the trial before me on 7 April 2015.
The Family Report of Ms P dated 11 August 2014
The family report of Ms P is lengthy and detailed, and it is not appropriate to set it out at great length. Having recorded, in my view accurately, the history of the matter in the Court, the current arrangements for the children, the applications of the parties and the issues in dispute, Ms P came to the interviews with the parties at page 8. It should be noted that at paragraph 8 on page 6, Ms P reported:
“Although both parents agree that time arrangements have proceeded as Court ordered, while Mr Esplin reports that the children's behaviour has "improved" and they are enjoying spending time with him, Ms Esplin reports that the children are not enjoying spending time with their father and do not wish the current time arrangements to be ongoing.”
It is absolutely clear from Ms P's account that her interaction with Mr Esplin did not go well. At paragraph 12, (page 8) Ms P recorded:
“Mr Esplin's manner was so unpleasant that mid‑interview the writer required a fifteen minute break to debrief with a senior family consultant. Mr Esplin appeared both to be aware of and to derive enjoyment from the writer's discomfiture. As the interview progressed, his display of enjoyment, his lengthy pauses, and his discursive and evasive response style appeared to increase. Mr Esplin's presentation at interview towards the writer appeared consistent with a description of coercive and controlling behaviour.”
I note that Mr Esplin essentially put his position as described in his affidavits, and as noted at the earlier section 11F interview. I note that at paragraph 17, Ms P recorded that Mr Esplin did not agree with the mother's claims as to Y autism and Z's autism and ADHD.
Put shortly, the father's position is that the children were not being properly cared for by the mother, and were developing very poorly as a result.
The record of the interview with the mother (pages 14 to 19) was likewise essentially consistent with the position set out in her affidavits and in the section 11F interview. She was firmly of the view that the children did not like spending time with their father, and had much to say of the difficulties of interaction between her and the father.
Ms P recorded her interviews with the children on their own at pages 19 to 21. The children all expressed concern that what they said to Ms P might be reported to their father, with punitive responses from him. At paragraph 36 and following, Ms P noted:
“36. Unlike the children's presentation at the Child Inclusive Conference, where they appeared to be prepared with anecdotes and reasons why they should not spend time with their father, on this occasion the children appeared to have accepted that there would be some Court ordered time with their father in future. The information they provided to the writer appeared sincere, unrehearsed, and the opinions they had formed independently of their personal experiences. Although Z and Y have been diagnosed with autism spectrum disorder, and Z with ADHD, the boys attend mainstream educational facilities, and their presentations raised no question that they were capable of forming their own impressions about their relationship with their father. X has not been diagnosed with a developmental disorder, and at 15 years of age, he presented as a thoughtful and mature young man who was more than capable of forming independent views about the quality of his relationship with his father.
37. All three children expressed a desire not to have to spend time with their father.
38.All three children described having a poor relationship with their father, and that their responses towards their father were based on fear.
39. All three children expressed anxiety about spending time with their father if Ms I was not present. They described Ms I as having a positive effect on their father's behaviour in that her presence prevented him from behaving with family violence towards them, and that if she was not there to suggest activities, it was unlikely Mr Esplin would take them anywhere.”
At paragraph 41 and following, Ms P continued:
“41. The children described Mr Esplin's behaviour when Ms I was not present as frequently involving verbal violence that included shouting, name calling and denigration towards them directly.
42.They described being bored at their father's house. None of the children wished to spend overnight time with their father.
43. The children had difficulty describing anything positive about their father, and they described their father's behaviour as frequently “embarrassing”.
Ms P recorded her observations of the children with the father at pages 21 to 24. Ms P noted that Mr Esplin had a headache, which might provide a partial explanation of the low levels of interaction between him and the children during observation (paragraph 48, page 22).
It is clear that the interaction between the children and their father was, as Ms P described it, "strained and awkward" (paragraph 54).
I note that Y declined to participate in any activities with his father (paragraph 56, page 23).
At paragraph 57, Ms P observed:
“57. During the observation and in his comments at interview, Mr Esplin demonstrated an ‘authoritarian’ parenting style in that he presented as highly focused on regulating aspects of the children's behaviour such as their manners, their school attendance and performance, and he demonstrated demands that they comply with his expectations of their behaviour such as embracing him farewell. This parenting style is also referred to in the professional literature as a "high criticism – low warmth" parenting style, and it is associated with poor outcomes for children where there are high levels of conflict between the parents.”
The interaction between the mother and the children was unremarkable.
In her evaluation section, Ms P said relevantly at paragraph 64 and following:
“64. Central to the parenting dispute is disagreement about whether Y’s diagnosis of Autism Spectrum Disorder and Z's diagnosis of Autism and ADHD, are appropriate. Mr Esplin prefers to attribute the children's behavioural problems to Ms Esplin's poor parenting practices. Ms Esplin raises concerns that the father's alleged pattern of violent and controlling behaviour towards her will be increasingly directed towards the children. In support of her fears she has already made one child protection notification against Mr Esplin following an incident where he struck Y with a toy sword and caused bruising to his upper arm.
65.The "unusual" behaviours that Mr Esplin has noticed in Z and Y, such as being particularly interested in police sirens and the behaviour of "bad people", and eating 11 bananas in one sitting, can be typical behaviours for children who have been diagnosed with Autistic Spectrum Disorder. However, the multiple descriptions Mr Esplin provided at interview of blaming Ms Esplin rather than responding to the needs of his children, and his punitive responses to their behavioural difficulties, increases the probability that Mr Esplin will respond in a punitive and frightening manner towards the children in future and that he constitutes a significant risk of emotional harm towards them.
66. Despite being included in medical consultations regarding the children's needs, Mr Esplin demonstrates a deep disregard for expert opinion on the children's medical needs – to the extent that Ms Esplin and Z report that Mr Esplin refuses to provide Z with prescribed medication. This behaviour may constitute medical neglect.
67. The other concern raised by Mr Esplin's description of the children demonstrating unusually high levels of sadness, fear and anxiety when in his care, are that these descriptions correlated with the writer's observations of the children's behaviour with Mr Esplin, and with the children's descriptions of their relationship with their father at both the child inclusive conference and the family report interviews. It appears clear that the children are not enjoying time they spend with their father. One possible reason for this is that the father appears to be deeply insensitive to the children's needs on many levels, and his main focus appears to be continuing the conflict with Ms Esplin.
68. The other possible reason is that the children have only had intermittent time with Mr Esplin since the family separation in 2005, and they have grown accustomed to seeking support from other people in their lives. All three children report that their mother is extremely supportive, and that they have other supportive figures in their educational and church communities. Both parents report that there have been repeated and lengthy periods where the children did not spend time with their father. Although the parents offer differing accounts of why this is the case, that it took Mr Esplin seven years to bring the matter to Court, suggests he may have a limited capacity to be an effective and sensitive parent, in particular, to two children with special needs. His current behaviour and attitude suggest that in order to do so he would need to make many significant changes.
69. The professional literature proposes that even if a parent is found to constitute a risk to a child, the benefits to a child of knowing that parent are so great that efforts should be made to identify and moderate these risks. In the situation of the Esplin family, the benefits to the children of increased time with their father must be considered against the moderating effects of the poor co‑parenting relationship between the parents, the distance between the parents' residences, and the dislocation to the children's social lives of spending regular time with the father at his home,; the risks associated with the father's lack of recognition of the children's special needs, and their developmental needs in general and the accounts of the children's current poor relationship with their father.”
Having dealt with some other matters, Ms P continued at paragraphs 71-72:
“71. However during the course of the day, it became apparent that Mr Esplin does not have positive relationships with any of the children, and furthermore, that it is highly unlikely that Mr Esplin will be able to create a meaningful relationship with X in future. Compelling X to spend time with his father would be unhelpful to any chances in this direction that Mr Esplin might have. It may also be of corrective assistance to Mr Esplin's authoritarian attitude towards the children, to have parenting arrangements that require him to make more effort to understand and meet the children's needs.
72.In terms of the co‑parenting communication between the parents, Ms Esplin alleges that Mr Esplin uses co‑parenting communication as an opportunity to further demonstrate family violence towards her. Almost aspect of Mr Esplin's presentation at interview supported Ms Esplin's allegation. For this reason, it is proposed that joint parental responsibility will be impracticable, and not in the children's best interests due to the potential for ongoing family violence between the parents.”
The report went on to recommend sole parental responsibility to the mother, and a regime of time whereby X spend time with his father if and when he chose to do so, and that the younger two children spent four hours per month with him, supervised by Ms I or some other agreed person. There were, as earlier indicated, ancillary recommendations made.
The Medical Diagnoses of the Children
The mother's affidavit filed 4 August 2014 annexes the relevant medical reports from practitioners as to the children's difficulties. It is quite clear from these reports annexed to the affidavit that contrary to the father's position, both Z and Y do indeed suffer from the difficulties asserted by the mother.
The Report of Mr S on the Father
Mr S's report dated 2 September 2014 is a psychological assessment report in respect of the father. It is annexed to the father's most recent affidavit filed 1 April 2015. That affidavit contains a number of criticisms/responses to the family report of Ms P and also to the mother's material.
Most importantly for these purposes, Mr S said at paragraph 12:
“12. Analysis of the clinical scale elevation identified in Mr Esplin's personality profile on the PAI suggested the following relevant information. Mr Esplin is likely to present as impassive and be unresponsive emotionally. His response profile indicated that he is unlikely to show levels of interest in the emotional experience of others which may reflect difficulties in his ability to interpret the nuances of interpersonal behaviour which provide the meaning to personal relationships. It is hypothesised that this could contribute to the relationship difficulties experienced by Mr Esplin in that his partners may not experience him as having empathy for their feelings.”
The Evidence Given at Court – the Mother
As already mentioned, the parties are both self‑represented. The mother's opening address, which went for some length, involved a fairly extensive recitation of her various complaints about the father, and the difficulties of his interrelationship with the children including matters arising from his failure to accept the various relevant medical diagnoses.
When called to give evidence in the witness box, she adopted her affidavit save that paragraph 10 of her affidavit sworn 16 March 2015 was incorrect. Contact between the children and the father has not been proceeding well. The children were angry with Judge Whelan's orders, and had to be reassured in order to spend time with their father.
Cross‑examination by the father, while relatively extensive, did not in the main in my view take the case much further. While the father put his version of a number of the points of difference between them plainly to the mother, she was not moved to withdraw or qualify her evidence.
It should be noted that the father's style in cross‑examination can only be fairly described as sneering and on occasions sarcastic. I should say that I thought the mother was an evidently sincere and honest witness, whose answers were direct and to the point. It is sufficient to say that I believe her evidence.
The Evidence of the Father
The father confirmed in opening that he sought the orders contained in his outline of case filed with the Court. That would provide for joint parental responsibility, and order that X spend time with the father in accordance with his wishes, and that the two younger children spend time with him each Friday evening until Sunday evening, and half the school holidays.
In evidence‑in‑chief, the father relevantly asserted that there had been no violence at any time in his home or to the children, and that he did not know what violence is.
The wife, self‑represented as she was, elected not to put questions to the father.
The Evidence of Ms P
Ms P was called and adopted her report.
Under questioning by the mother, Ms P confirmed that it was appropriate for X to delineate his own time with his father because of his age, in view of his clear views, and the emphasis he gave to his own extra‑curricular activities. She opined that a similar outcome would probably obtain when Y and Z reached the same age.
Under cross‑examination by the father, Ms P confirmed that her section 11F report was an accurate record of matters as they then stood. She confirmed that the children had not been coerced for the second report. At the time of the section 11F report, Ms P had been concerned that the children had been influenced as to what they said. When the father put it to Ms P that she had put her hand up to him, Ms P denied that this was the case. She also denied limiting the father's time in any unreasonable way. She said that she always had to tell people about time. Ms P's answers were given with evident sincerity and were wholly believable.
Ms P denied that the father was distressed during the family report interview, and said that, however, she herself was. She had to leave for a while. She said she tried to ask questions and the father would not answer. The answers given by Ms P were thoughtful and considered. Ms P was a professional witness giving evidence within her area of specialty. Her answers were transparently truthful and direct. I have no hesitation in accepting not only that she was a truthful witness, but accepting the force of her evidence and her reports.
Final Submissions of the Parties
Scarcely surprisingly, the parties' final submissions were consistent with their evidence and positions in the case generally. The father continued to maintain that the children had a "rip‑roaring time" with him since Judge Whelan made orders for them to spend time with him. He said that his new partner is (nationality omitted) (Ms I no longer being on the scene) but that she was returning to (country omitted) in a couple of months. It eventually emerged that this return was not permanent.
In her final submissions, the mother once again pointed to her reservations about the children spending time with the father. One matter I should record is that when she said that she had tried to defend the father to the children, saying, "You've only got one dad, and he's your dad," those submissions struck me as being entirely sincere. The mother said that Y is obsessed with basketball and (hobby omitted), and the mother was concerned as to what would happen if that was interfered with.
She maintained that the children, contrary to the father's position, did not have a good time with him, and she continued her request that such time as might be ordered be supervised.
The Statutory Pathway
The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:-
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental Responsibility
The first matter the Court is required to consider is whether there should be an order for joint parental responsibility. In this case, regrettably it is clearly appropriate in the children's best interests to award sole parental responsibility to the mother. This is partly from the clear need to protect them from the risk of abuse (the father's parenting style being all too clearly established on the material and by the evidence as a whole) but more particularly because of Ms P's insightful remarks about the matter. I have set Ms P's opinion out above, and in my view, it is clear that she is right. It is not in the children's best interests that there be an order for equal shared parental responsibility. That will be allotted to the mother.
What Time the Children Should Spend With the Father
This matter is, of course, approached in accordance with the matters in s.60CC of the Family Law Act 1975 (“the Act”).
The Primary Considerations
As Ms P rightly observes, there is an obvious and considerable benefit in the children having a meaningful relationship with both parents. The difficulty in this instance, however, is that the children do not have a good relationship with their father for reasons already traversed above, and further, the probabilities of abuse by the father in the form of verbal abuse, if the children spend time with him.
Section 60CC(3)(a)
The views of the children could not have been expressed more clearly. The father himself accepts the force of the views of his oldest child, X. At the age of 16 those views must be given very considerable weight.
The other two children, however, are also by no means young, and are rapidly approaching a stage of development similar to that of their elder brother. I note Ms P was of the view that they were likely to arrive at the same position when they achieved X's age. Whatever the position may be in the future, however, their views have been very clearly articulated now. They do not wish to spend time with their father.
Section 60CC(3)(b)
The children have an excellent relationship with their mother. Although little has been said of the extended maternal family, it would appear that such relationships are good.
Most unfortunately, the children do not have a good relationship with their father for reasons already examined in some detail. It is not necessary to repeat this aspect of the matter.
Section 60CC(3)(c)
Despite his denials, it would seem clear that the father has not in the past been consistent over time in his desire to be involved in the children's lives. That this is so is apparent from the length of time (approximately seven years) it took the father to bring the matter to Court, bearing in mind his complaints that his time had been sundered effectively since separation. Clearly the mother has been, at the very least, a satisfactory parent.
Section 60CC(3)(ca)
In the circumstances of this case, this matter, while important, adds little.
Section 60CC(3)(d)
Regrettably any endeavour to impose upon the children the regime of time that the father seeks will be damaging to them, and likely to give rise to the sort of difficulties and concerns identified by Ms P.
Section 60CC(3)(e)
Although I have not extracted the relevant passages from Ms P's report, she described the practical difficulties arising out of the lengthy journey between where the children live with the mother and where the father lives, and the attendant difficulties. This is compounded by problems with the children's extra‑curricular activities, which at their ages are of significance to them. I note that Y’s church activities and (hobby omitted) and basketball are matters that the mother understandably and, in my view, rightly fears would be a source of real difficulty if interrupted. There do not appear to be difficulties in relation to expense in the orders proposed by the father, notwithstanding that both parents are impecunious.
Section 60CC(3)(f)
The mother can plainly provide for the children's needs, but for the reasons identified by Ms P, including most particularly his personality style and consequential parenting style, however, the father's capacity is seriously flawed.
Section 60CC(3)(g)
The age of the children and their views have already been dealt with above. The only relevant consideration in relation to the parents' lifestyles and personalities is the difficulties associated with the father's personality and consequential parenting style already noted more than once above.
Section 60CC(3)(h)
This is not relevant.
Section 60CC(3)(i)
This is an important matter, but has already been dealt with in considering the other subsections above.
Section 60CC(3)(j)
Although there has plainly been family violence within the extended meaning in the Family Law Act and, indeed, although there is an Intervention Order in place which is a matter of concern, these matters do not, in my view, take the overall picture of the case any further, because the issues arising there from are already detailed above.
Section 60CC(3)(k)
As already mentioned, an Intervention Order appears to be in place. Exhibit A1 would appear to show an ongoing Interim Intervention Order without a concluding date. It does not, however, for the reasons already set out, take the matter much further.
Section 60CC(3)(l)
It is plainly appropriate to make orders that bring this proceeding to a final conclusion.
Section 60CC(3)(m)
Although perhaps it has been made sufficiently clear already, in the circumstances of this case, it is the report of Ms P that is decisive. While the father has set out a number of criticisms of Ms P's report, in his affidavit and in his cross‑examination of Ms P, I think I have made it sufficiently clear that I entirely accept both her truthfulness as a witness, and the insight displayed by her evidence and report generally. It is clear that the recommendations she makes are those in the best interests of the children.
Conclusion
For these reasons, I will make the orders sought by the mother, which are essentially coextensive with those proposed by Ms P.
I should repeat that it became apparent under further questioning that the father's partner, who was returning to (country omitted), will be in Australia on an ongoing basis. In my view, the time ordered between the children and the father should be supervised by her if she is available, but in any event, I will be ordering time, limited as it is, in any event. It is in my view a sufficiently short amount of time that the father should be able to behave appropriately. In the event that he fails to do so, I have little doubt that the children will rapidly vote with their feet, and should that occur, most unfortunately the father will have no one in the ultimate to blame but himself.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 10 June 2015
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Areas of Law
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Family Law
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