FARGO & LARK
[2011] FamCA 238
•8 April 2011
FAMILY COURT OF AUSTRALIA
| FARGO & LARK | [2011] FamCA 238 |
| FAMILY LAW - CHILDREN – High conflict - mother threatens to alienate child from herself and his siblings unless his relationship with the father is circumscribed - public policy |
| Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (2), (3), (4A) and 114 |
| Ray and Anor & Males and Ors [2009] FamCA 219 Bradshaw D, Brown T, Wendt S, Campbel A, McGinness E, Tinning B, Batagol B, Sifris A, Tyson D, Baker J and Arias P F - “The Effect of Family Violence on Post-Separation Parenting Arrangements Family Matters 2011” No. 86 – Australian Institute of Family Studies |
| APPLICANT: | Mr Fargo |
| RESPONDENT: | Ms Lark |
| FILE NUMBER: | LNC | 301 | of | 2007 |
| DATE DELIVERED: | 8 April 2011 |
| PLACE DELIVERED: | Launceston |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 22, 24 & 25 February & 9 March 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Higgins |
| SOLICITOR FOR THE APPLICANT: | Bishops |
| COUNSEL FOR THE RESPONDENT: | Mr Williams |
| SOLICITOR FOR THE RESPONDENT: | Mr Williams |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mrs Mooney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid Commission |
Orders
All previous parenting orders in respect of B born May 1999 (‘the child’) be discharged.
Parental Responsibility
Subject to these orders or any written agreement between the parties, the parties shall have shared parental responsibility when determining:-
(a)the child’s religion;
(b)the issue or re-issue of a passport for the child;
(c)changing the child’s school from Primary School 1 and/or High School 1;
(d)overseas travel of the child;
(e)changing the child’s primary place of residence from North/Western Tasmania; and
(f)any major elective surgery, psychological treatment and/or psychiatric treatment for the child.
BY CONSENT both parents are restrained from changing the primary place of residence of the child from North/West Tasmania without either the written consent of the other parent or an order of a Court exercising jurisdiction under the Family Law Act 1975 (Cth).
Subject to these orders or any written agreement between the parties, the parties shall otherwise have individual parental responsibility for the child but shall inform the other parent of any proposed exercise of any significant aspect of parental responsibility if possible in advance otherwise as soon as is practicable.
Each parent shall advise the other of any medical procedure involving the child and each party is restrained from taking the child to a psychologist or psychiatrist without the other parties written consent, an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth) or on the recommendation of the child’s General Medical Practitioner after such practitioner has certified that he has read these orders and the reasons upon which they are based. Nothing in these orders shall operate to prevent the child from being referred to a school counsellor by his school teacher or school principal.
Each of the parents shall have parental responsibility to inspect medical records that are available or to make enquiries of doctors and teachers.
The parities shall sign all documents and do all things to enrol the child at High School 1 from 2012 onwards and both parties are restrained from changing the child’s enrolment at that High School and/or Primary School 1 without the written consent of the other party or an order of a court exercising jurisdiction under the Act.
The parents shall otherwise have several parental responsibility for the child, have regard to the provisions of s 61C of the Family Law Act 1975 (Cth).
Leave to commence proceedings
Subject to order 7, leave be given to the parties for the next three years to apply to Benjamin J in respect of:-
(a)any change of school which is not agreed in writing;
(b)any appointment for the child to see a psychologist or psychiatrist; and
(c)any alleged contravention of these orders.
Such leave to be limited to determining those questions which would generally be determined on the filing of an application and affidavit and returnable on short notice.
Pursuant to the powers set out in Division 12A (not s 118) of the Family Law Act 1975 (Cth), the parties are restrained from commencing any parenting and/or enforcement proceedings without the leave of a court exercising jurisdiction under the Act.
Living Arrangements
The child shall generally and primarily live with the mother.
The child shall live with the father as follows:-
(a)During Christmas/New Year school holidays in 2011/2012 and each alternate year afterwards from after school on the last day of school term until 2.00pm on Christmas Day and then with the father from 2.00pm Boxing Day for two weeks.
(b)During Christmas/New Year school holidays in 2012/2013 and each alternate year afterwards from 2.00pm on Christmas Day until 2.00pm on Boxing Day and then for two weeks during the Christmas holidays commencing 8 January.
(c)In relation to the Easter school holidays, the child live with the father from:-
i.the last day of school term prior to Easter until 5.00pm Easter Sunday in 2012 and each alternate year thereafter; and
ii.from 5.00pm Easter Sunday to 5.00pm on the Sunday before commencement of the following school term in 2011 and each alternate year thereafter.
(d)In relation to the two mid year school holidays, the child shall live with the father from the conclusion of the last day of school until 10.00am on Saturday in the middle of the holiday period.
(e)During school term, the child shall live with the father each alternate weekend (from after Easter 2011, commencing second Friday after the commencement of each term) from after school Friday to the commencement of school Monday or the commencement of school Tuesday if the Monday is a pupil free day or a public holiday. As from the date of this order, the child shall spend the weekend commencing 8 April 2011 with the mother and the following weekend, commencing 15 April 2011 with the father.
(f)On Mother’s Day, if the child is not otherwise living with the mother, the child live with the mother from 10.00am on Mother’s Day and remain living with her for the remainder of that weekend, with the child to be delivered by the mother to his school on the following Monday morning.
(g)On Father’s Day, if the child is not otherwise living with the father, the child live with him from 5.00pm on the Saturday before Father’s Day until 5.00pm on the Father’s day Sunday, such return to be in accordance with the arrangements set out in these orders or as otherwise agreed in writing between the parties.
All changeovers are to be at the child’s school if the school is open and if not at the home of Ms S or at such other place as agreed in writing between the parties. The parent is to drop the child off at least 15 minutes prior to the changeover time and depart the place of changeover at least 10 minutes before the changeover time.
Other orders
Both parties will do all acts and things to authorise the child’s schools to provide each parent with information about the child including, but not limited to, school reports, school information routinely provided to parents, school newsletters and the child’s attendance record AND IT IS NOTED that each parent is entitled to such information.
Both parents are restrained from discussing these orders and the parenting proceedings with the child.
The father shall ensure that the child has an operating mobile telephone with him while the child is in his care.
The mother and father be and are restrained from attending the child’s school except during the time that the child would otherwise be in their care on the previous night to the particular school day.
The Independent Children’s Lawyer must provide within six (6) weeks from the date of these orders, a copy of the reasons and orders to:-
(a)the principal of Primary School 2;
(b)the principal of Primary School 1; and
(c)the child’s general practitioner.
AND IT IS DIRECTED that the principal of Primary School 2 is restrained from distributing the reasons to any other person or persons save and except to those dealing with any complaint made to the Department of Education in respect of his dealings with the child.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and the details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
This matter be removed from the list of cases requiring determination.
All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.
IT IS NOTED
The father has agreed to avoid using G Road when travelling from Town 1 to Primary School 1 and has agreed to use the C Road.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004, it was reasonable to engage counsel.
IT IS NOTED that publication of this judgment under the pseudonym Fargo & Lark is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT LAUNCESTON |
FILE NUMBER: LNC301 of 2007
| Mr Fargo |
Applicant
And
| Ms Lark |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings relate to B, who at the date of the hearing was aged 11, almost 12 years. His parents have fought over him since he was aged 6 months. They have engaged in almost unremitting conflict. The hearing upon which these reasons are based is the third ‘final’ hearing in respect of the child. Orbiting around these final hearings have been an almost constant flow of litigation in the Family Court and the Federal Magistrates Court. The litigation is spiced with contravention applications and various interim and interlocutory hearings.
At this third final hearing, the child’s mother imposed another level of emotional pressure upon this child. She informed the Court and the child that unless it made the parenting orders she sought (which would have the effect of reducing the child’s time with his father from significant and substantial to limited time over some school holidays) she, her present husband and the child’s brother and sister would move their home from Tasmania to New South Wales and that the child’s relationship with that part of his family would terminate. The mother was supported in this position by her present husband. The child knew of his mother’s position when he expressed his views to me. The child said that he wanted to retain the relationship with his mother, step-father, and siblings and would only see his father on a limited basis because of that threat. The mother has endeavoured to clothe her position as being a reflection of the wishes of the child but in fact, it is her idea, her plan and her implementation.
Had the underlying principles in this case been to weigh the behaviour of one parent against the other, this abusive approach of the mother would have had a profound and possibly decisive impact. However, in this case the underlying principle is to put in place arrangements to meet the child’s best interests, which include a relationship with his siblings. This case also raises public policy issues in terms of the mother’s forensic strategy to achieve the end, which she had predetermined and which in itself amounts to emotional manipulation of the child.
Of the litigation, the Family Consultant says[1]:-
4.Repeating litigation in years of conflict and hostility between [the father] and [the mother] underlie this dispute; and had defined [the child’s] life since the age of six months. It was almost impossible to obtain from each parent a simple overview of [the child’s] care and history since birth. Suffice to say, the impression was gained that [the child] had for many years since his early pre-school years lived in the shared care arrangement between each parent with some disruptions lasting weeks and possibly several months when he did not see one or other parent. It was also understood that [the child] has experienced several schools during his education to date, with significant parental conflict about his school. It was gathered that [the child] had missed periods of schooling for which [the father] and [the mother] blamed each other.
5.Each parent referred to past allegations of [the child] being significantly harmed or at risk of harm in the care of the other parent. They both sounded rather resigned to these allegations remaining unsolved.
…
49.Each of [the father] and [the mother] naturally would like the child to live with them. They have made significant allegations about the deficits of each others parenting. Broadly, [the mother] claimed that [the child] has suffered from his father’s substance abuse and neglect; and [the father] claimed that [the child] has been physically abused by his mother. They accused each other of disrupting [the child’s] school attendance. During this assessment neither parent emerged clearly as being the parent who could better meet [the child’s] needs. Furthermore, their respective capacity to support [the child’s] relationship with the other parent was uncertain. Greater assistance to the court in evaluating parental capacity differentially may come from an examination of third party information, e.g. [the child’s] school attendance record when living with each parent, past performance may be the most valid guide to future capacity.
[1] Family report dated 23 August 2010 by Ms G.
As will be seen later in these reasons, I accept the evidence and conclusions of the family consultant and I am satisfied that her analysis set out above is accurate.
In her case summary[2], the mother sought an order that the child live with her and communicate with the father by telephone on Fridays and Tuesdays at 7.00pm and not otherwise. The mother said on oath:-[3]
[That] if unsuccessful, [she] will not exercise any subsequent order for time with [the child].
[2] At page 1 of the Case Summary for the Mother dated 22 February 2011 [Incorrectly dated 22 February 2010].
[3] Ibid.
She says her decision is based upon her unshakable conclusion that:-[4]
1.The child has an overall wish to live with her and has done so for many years;
2.Any evidence or suggestion about a positive relationship between the [father] and the child is weak and what on its face put forward is untrue, bad evidence should not be accepted by the court.
3.The child’s wishes have not been listened to as part of the court process, especially in that he wished to talk to the court reporter before the recovery order was made.
4.The child has resigned to the popularity of opinion against his mother by the ICL, the former Magistrate amongst others which will see his wishes continue to be ignored or categorised as a result of pressure from the mother, or [the mother’s husband] for which is totally rejected. Consequently, the child is exposed to psychological torment of not being asked or, as perhaps, being said to say something other than what he wants.
[4] Ibid at page 2.
THE ISSUES
The issues include which parent should have sole parental responsibility, with which parent should the child live, whether the child ought to have any time and communication with the non resident parent and if so, of what nature.
The underlying issues in this case are those set out in s 60B of the Family Law Act 1975 (Cth). Naturally, I will consider and, to the best of my ability, evaluate the s 60CC factors, but these are identifiers or a check list (perhaps they are sometimes tripwires) to determine the best interest of the child to give effect to the principles set out in s 60B.
In this case, there is no substantive argument that there is a benefit in the child having a meaningful relationship with both parents. In the father’s household, there is peace and quiet and the personalities of the father and the child are aligned. The child has benefited from his deep and meaningful interaction with the father over the whole of his life and has managed adequately since put in his father’s primary care in August 2010. In the mother’s household, there is far more spontaneity and engagement; the child clearly loves his mother and step-father. His relationship with his siblings is significant and of real importance to him.
Where the problem lies is the risk of emotional and psychological harm inflicted upon this child by the nature and character of his parents and their continuing conflict. The father is by temperament, rigid and determined; he does not provide the broader and engaging lifestyle in which this child thrives and which seems to be a feature of the mother’s home. The father lacks insight into the effect of his parenting style and his ongoing conflict with the mother. This is shown in a number of ways including the father not walking away on the last day of school term in 2010 when there was a mix up in the orders and in his continuing to drive past the driveway of the mother’s home when he knew it upset her and there was an easy and obvious alternative route.
The mother has no insight into her behaviour[5] and that of the mother’s husband in endeavouring to alienate the child from his father. When I talk about alienation, I do not mean that in any way psychological syndrome, but in a practical outcome. The mother inflicts emotional pain on the child to achieve her own ends. This approach is troubling and I have considered how this may impact upon the life of the child when he starts seeking independence and challenges her authority or that of the mother’s husband in other areas of adolescent behaviour, as is the hallmark of many children going through puberty and teenage years.
[5] Or chillingly, does have an insight but engages in the conduct notwithstanding the adverse consequences on the child.
Taking this child out of the orbit of his father’s life may expose him to possible risks of emotional harm and physical harm in the sole care of his mother. Removing the mother from the child’s life exposes the child to some degree of isolation in the care of his father and, according to the family consultant, emotional harm in relation to being separated from the family he loves and for whom he has expressed a strong wish to live with. With whatever decision I make, this child will remain at risk of harm.
In determining what orders I need to put in place, I will be looking at the least worst option. There is no safe option. The inevitable consequence is that no matter what outcome I provide, the child will be harmed. This is summed up by the child himself when he expressed wonder, confusion and perhaps anger at why his parents had put him through this and why he ruminated about foster care being a better option. His comments are an indictment on both parent’s behaviour.
Alternative dispute resolution and non-contentious methods of conflict resolution have been well adopted by the Australian legal profession and the Australian community over the last few decades. There are effective Government and non-Government organisations and resources providing guidance and support for families going through relationship breakdown. As a result, Courts are, quite rightly, seen as the last resort. The flow on of that change is that Federal Magistrates and Family Court Judges are faced with a reduced proportion of cases relative to relationship breakdown but those cases are more and more complex and less amenable to resolution.
The former distinction between private law conflict over parenting of children (generally between parents) and the public law welfare jurisdiction has in some respects been lost or at least blurred. A significant percentage of parenting cases heard in the Family Court have major welfare issues and the lack of alternatives in the form of State Welfare Authorities is real and concerning. At present, all that can be done is invite State Welfare participation, however, such invitation is generally not taken up. In Ray and Anor & Males and Ors[6], I endeavoured to address this problem by reference to the welfare powers under the Family Law Act 1975 (Cth) and/or by way of accrued jurisdiction of the parens patriae powers of the Supreme Court of Tasmania. The Full Court of the Family Court in the Secretary of the Department of Health and Human Services & Ray and Ors[7] had a well considered but different interpretation of those powers and has effectively closed that door.
[6] [2009] FamCA 219.
[7] [2010] FamCAFC 258.
The consequence is that the artificial division of the private parenting law in the Federal sphere and the child welfare law in the State and Territory sphere leaves children at risk, which could otherwise be avoided or reduced. The ability to impose duties of care or at least supervision on the State welfare bodies is not available except if such bodies volunteer themselves to that course.
As such, I urge the Federal and State Attorneys General and Justice Ministers to jointly introduce policy and legislation to remedy this problem and provide the legislative and resource structures to protect and nurture the children who are most at risk. I am aware that there are serious Constitutional difficulties, however, these can be overcome by referral of powers through constructive, co-operative and effective State and Federal policy.
BACKGROUND
At commencement of the hearing, the mother was aged 38 years and the father was 43 years.
The parties live in North/West Tasmania. The father at Town 1 and the mother at Town 2. The parties are about one hours distance from each other.
The mother has re-partnered and is now married to Mr Lark. There are two children of that marriage, J aged almost 6 and G aged 4.
The father has not re-partnered at this time, but has a close friendship with Ms A. For some reason the child is agitated by this friendship and is concerned that the father and Ms A have allegedly denied intimacy. This is indicative of the mother’s enmeshing the child in adult issues.
The father says he and the mother were in a short relationship from about 1998 to 1999. He says they did not live together and from October 1999 to mid 2004 he and the mother were in an on and off relationship. He says though that following separation in 1999 the child lived with the mother. The mother’s history is different. Irrespective of the respective views, it is clear that the parents separated at least six months after the birth of the child in May 2000. By June 2001, proceedings had been commenced and a family report had been ordered. At that time, both parents accused the other of violence and the father asserted that his time with the child had been stopped by the mother for a number of weeks. The mother wished to relocate the primary residence of the child with her to Victoria. The family consultant at that time observed that:-[8]
[B] was a delightful boy of two years who speaks with fine motor skills and appeared advanced for his age. He seemed to benefit from a lot of contact with both parents.
[8] At page 3 of the family report dated 24 September 2010.
In June 2002, an order was made by Federal Magistrate Roberts dismissing the mother’s request to relocate and providing for a regime of shared care.
In November 2002, Federal Magistrate Roberts found the mother had contravened parenting orders and made further orders that the child live three nights per week with the father and four nights per week with the mother.
In 2003, a recovery order was made. In July 2005, the father filed a further contravention application. The parties reached agreement and consent orders were made in August 2005. In October 2005, Federal Magistrate Roberts found the mother had contravened parenting orders on six occasions and the mother was fined. That fine was wholly suspended.
In December 2007, there was a second final hearing before Federal Magistrate Roberts. The reasons for those orders being made at that time were in evidence before me. Included in the 2007 orders was an order that the parents have equal shared parental responsibility for the child, the child attend Primary School 2 and live with each parent on a week about basis.
At that time, the Federal Magistrate formed the view that the shared care arrangement should continue and recommended that the parties improve their communication.
Subsequent to that determination, the mother filed a contravention application in May 2007 in the Federal Magistrates Court, which was dismissed in February 2008. During that time, the mother had also filed an application for final orders which was adjourned sine die and the mother was ordered to pay some of the father’s legal costs.
The father asserts that on 8 April 2010 he received a letter from the child unilaterally attempting to change the terms of the 2007 orders. At an interim hearing on 31 May 2010 orders were made that the child was to be returned to the care of the father on 7 June 2010. That did not occur and a recovery order was made by the Federal Magistrate in early August 2010. The child was moved by police into the father’s care on 6 August 2010.
Following that event, a consent order was made in September 2010 that the child spends time with the mother on each alternate weekend. The time the child has spent with each of his parents continues to be problematic, although the level of conflict has reduced since November 2010, save for one event on the last day of school in 2010.
The child currently attends Primary School 1 and wishes to remain at that school for the completion of this year. That accords with the present views of both parents and the Independent Children’s Lawyer. In terms of High School the father wants to send the child to Private School 1, a Catholic school in Town 1 or if that is not feasible, then a local Town 1 High School. The child wants to go to High School 1, as does the mother want him to.
In these proceedings, any statement of fact is to be regarded as a finding of fact.
RELEVANT LEGAL PRICINPALS TO BE APPLIED
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles set out in s 60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each parent of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so-called presumption arising out of the operation of s 61DA of the Act. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[9] for the child, subject to section 61DA..
[9] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
If the presumption is not rebutted and it is in the child’s best interests, a court must make an order for equal shared parental responsibility. Logically, if the presumption is rebutted under s 61DA(2), but a Court determines that it is in a child’s best interests for an order for equal shared parental responsibility, it should be made.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC.
The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with other persons is determined (see s 64B(2)). This is because, where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances an order for equal or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The factors guiding how a court determines what is in the best interests of a child are set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two-tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. The relevant parts of s 60CC read as follows:
Primary considerations
(2) The primary considerations are:-
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:-
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
A court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court should consider each of the additional considerations separately, then have regard to all of the matters set out in s 60CC (including subsections 4 and 4A) and in the light of those factors, weigh up questions of parental responsibility, face-to-face time and communication.
In that evaluation, if there is to be an order for equal shared parental responsibility, the Court must consider:-
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.[10]
[10] MRR v GR [2010] HCA 4.
The Court should then determine time, communication and other parenting issues having regard to the nature and quality of the parent/child relationship and the need to make orders in the best interest of the child.
THE EVIDENCE
The father
The father says that the child has an active loving life in his care and a good relationship with his friend Ms A. The father says that she is a friend but they are not in a physical relationship. The father has a poor relationship with the mother.
The father was convicted of violence to the mother in 2001. The father says that there was a charge against the mother in respect of an assault on him, a possible breach of a restraining order and stealing, although there was no clear outline of what had occurred in these proceedings. A family violence order was made against the father in 2008/2009.
The mother has re-partnered and the father describes his relationship with her husband, Mr Lark, as being poor and sets out incidents in respect of that conclusion. It is clear that there is high conflict between these adults and confrontation at times.
The father denies that he has been or will be affected by alcohol when caring for the child. The father’s evidence is that he has not consumed alcohol since May 2010. There is little evidence that the father presently uses or abuses alcohol. There is evidence of past use and some evidence of present use from a school counsellor’s account, but this evidence may reflect what the child has been told his memory ought to be rather than his own memory.
The father gave evidence in accordance with his affidavit filed 24 December 2010. That affidavit was read into evidence. Initially I rejected paragraph 117 and gave leave to call oral evidence. However, there are two paragraphs 117 in his affidavit and it was clarified that the second paragraph 117 should remain in place, the father having amplified his evidence in that respect.
The father lived with his mother from 2003 to May 2010. The father is somewhat introspective. It is instructive to observe that the father’s demeanour and character are very similar to those of the child. Ms S described the child’s demeanour in similar terms to that displayed by the father. I observed these characteristics in the father when he was giving evidence and in the child when I saw him.
The father had been inflexible in his approach to court orders and at times is not good at change, such as the obvious problem at the end of the 2010 school term. However, once given direction, he is able to modify his behaviour. The father’s evidence was not seriously impeached by cross-examination. He is clearly worried about what will happen to the child and clearly wants to be part of the child’s life.
There were some allegations of violence and controlling behaviour by the father at and around the date of the parties’ separation. There was also a suggestion that he was engaging in the conflict with the mother out of conjugal jealousy. I do not need to revisit these areas as they were dealt with by Federal Magistrate Roberts at the earlier hearings. There is no evidence of any violence by the father since the 2007 hearing. The father has shown a capacity to comply with guidelines provided by a court and from time to time teachers and school principals.
The mother said that the child had complained about the father being verbally abusive to her in recent times, however, I do not believe her for the reasons set out elsewhere. The father denied those suggestions. I am satisfied that the child is not at risk of being verbally abused by the father, although I am satisfied that the father might from time to time be somewhat curt in his answers which could upset the child and which would enable the mother to exploit any negative views of the child in terms of his father.
I am also satisfied that the father’s relationship with the child is not as dynamic as the events that occur in the mother’s home where there are his brother and sister and different parenting styles. As a result, the child from time to time complains that time with his father is ‘boring’. Having regard to the mother’s approach it is likely that any slightly negative remark made by the child as to the father’s home is to be expanded, if not exaggerated, by the mother and Mr Lark and they repeat, reinforce and exaggerate those negative remarks to the child.
The father does not encourage the child to bring friends home from school. However, I am not satisfied that the father leaves the child for extended periods of time to his own devices. I am satisfied that it may be from time to time the child is left for relatively short periods of time and when that is reported to the mother it is expanded, reinforced and exaggerated.
I accept the evidence of the father that in the recent Christmas school term holidays he spent significant time with the child and it worked well. It was suggested that the father had abandoned the child to watch television in his room. The father said he would watch the news from time to time but that would be for a half hour or so. The father gave evidence, which I accept, that he plays board games with the child, basketball and from time to time swimming. He has the child involved in martial arts classes and the child and father watch movies together. However, the child’s view was that this time was boring and he wanted the father to be more involved with him.
The father wanted the child to go to Private School 1, which is a Catholic school in Town 1, as his first choice for High School. The father said he had done some part time work at that school and he was impressed by it. He had not sought an interview with the principal, nor had he made further enquiries.
The father’s brother had attended that school many years ago. The father’s second choice was High School 2 in Town 1. The father has some knowledge of that school but again he has not made any substantive enquiries. The father did not have a final view with regard to High School but was somewhat dogged about it. He eventually said he was open to the child attending High School 1 but declined to agree to a consent order. This was an example of his somewhat rigid approach.
The father was cross-examined as to his views of the mother. He gave evidence that he was angry at the mother’s behaviour but not at the mother. That evidence must be seen in the context of the father endeavouring to impress the Court and as such, is not entirely reliable in that regard. There is hostility between these parents.
The father has applied himself to the care of the child. As a consequence, he has been unable to find full time work that allows him to take the child to and collect the child from school bearing in mind the distances in that respect.
The father believes (and with some justification) that the mother will not comply with any orders if limited time is put in place. I share that view.
There was a suggestion, by counsel for the mother, that the father had been verbally abusive to the child (I have dealt with this earlier) as set out in an email. Those were the words of the mother and I accept the father’s evidence in that regard, albeit I am concerned that he may have been short in terms of his communication with the mother.
The father’s evidence is that it is likely the child could miss school if he is not there in part of the child’s life. I accept that evidence.
The father endeavoured to give frank evidence and, subject to the inevitability of the evidence of a party to litigation to be subjective, his evidence was generally reliable.
Ms A
Ms A relied on her affidavit filed 24 December 2010. She says she does not live with the father but has a close relationship with him and with the child.
Ms A is involved in the child’s life. I am satisfied the child has a good relationship with her, although the mother has reminded the child of an alleged incident which the child has no memory of. That reflects poorly on the mother. The child has said he saw Ms A in bed with the father and is quite upset that the father has denied there is a sexual relationship.
That concern could only have arisen because of discussions between the child and the mother and/or the child and Mr Lark. That was a harmful discussion and has agitated and upset the child and has enmeshed him in adult issues.
Whether the father and Ms A have a physical relationship is of no consequence. The demonization of a party in the eyes of a child is plainly wrong and mischievous by the mother. This has the capacity to undermine the child’s relationship with both the father and Ms A.
Ms A describes the child in glowing terms and says he is loving, intelligent and gives lots of cuddles and affection. She sees the child regularly, although maybe only once or twice a fortnight. I accept her evidence which is supportive of the father. She is the father’s friend who is involved in the child’s life. The evidence of Ms A is generally reliable from her subjective view.
Ms M
Ms M is the child’s paternal grandmother and she gave evidence in accordance with her affidavit filed 23 December 2010. That affidavit was read into evidence. She has a good relationship with the child. This accords with the evidence of the family consultant.
She assists the father in the care of the child. Interestingly, the child was looked after by her following the first day of the hearing and sleeping over with her and her new partner with whom the child appears to be quite close.
I accept her evidence, although it is to be seen through the eyes of the father’s mother and is coloured in that respect.
The mother
The mother relied upon her case summary which she signed and dated 22 February 2011 [incorrectly dated 2010] after discussions with her counsel. I have treated the summary as part of her evidence.
The mother wants the child to live with her and have limited time and contact with the father. The mother complains about the father’s involvement with her, and as I said earlier, she says that unless her requests are met, she will end her relationship with the child and consequently end the child’s relationship with his brother, J and sister, G.
The mother relied on her affidavit filed 4 November 2010 which sets out an incident allegedly observed by the child. She sets out her views of the child’s reaction to the proceedings. The mother relied on her affidavit filed and served 23 December 2010. The mother expressly asserted that she did not rely on her previously filed affidavits.
The mother was a truly awful witness. She prevaricated, she avoided answering questions, in the words of her own counsel she was tangential and non-responsive. The mother was emotional and for the reasons articulated set out here and elsewhere in these reasons, I regard her evidence as unreliable.
The mother was cross-examined in relation to the bruising of the child in 2008. She said she did not recall him being bruised and said it was perhaps arising out of him being bullied. She was ambivalent in her response and whilst I do not believe the child is at risk in her care, I have lingering concerns.
The child had at one time complained to Mr R, the principal of Primary School 2, that the mother had caused the child to suffer from a carpet burn. This evidence was at some level confirmed by Mr Lark. There is a plausible explanation but I have some lingering concern that the mother from time to time is unable to cope when put under pressure and lashes out at the child.
The mother’s evidence was impeached, as I observe elsewhere in these reasons, to the extent that it is generally unreliable.
Mr Lark
Mr Lark is the mother’s present husband and he filed an affidavit on 23 December 2010, which was read into evidence. He says he has a close relationship with the child, having known him since about 2004. Mr Lark said that the child must live with one parent or the other[11].
[11] At paragraph 9 of the affidavit of Mr Lark filed 23 December 2010.
There was an event which occurred at Primary School 2, which I will deal with later in these reasons, the events of which Mr Lark said were fictitious or exaggeration on the part of the school principal.
Mr Lark was not an impressive witness. He was aggressive and truculent. His evidence of the event at Primary School 2 was implausible and was frankly contradicted by the father and the school principal. Mr Lark’s evidence is unreliable and I am satisfied that he has fashioned it to meet the outcome he and the mother seek.
Ms S
Ms S swore an affidavit filed 23 December 2010. She is a friend of the mother and says that she has never observed the mother do anything to the child that she would criticise. Her views of the father are very much coloured by the information provided by the mother. She believes the father causes trouble to the mother and harasses her.
She said that the child was unhappy at Primary School 2 and said that the child had informed her of movies he had watched at the father’s home.
The father had, until recent times, seen her as reliable in terms of her care for the child. An example of this was when she endeavoured to return the child in mid 2010 (pursuant to an order of Federal Magistrate Roberts) which did not occur. I am not critical of Ms S in relation to this.
Ms S accepts that the child loves his father. Ms S has been employed in the education field for twenty six years and her description of the characteristics of the child show that in many ways his characteristics are similar to those of the father.
Ms S said that, at one stage, there were difficulties with the child in terms of digesting food whist at his father’s house.
The mother has told Ms S that she is proposing to leave Tasmania.
I am satisfied that her evidence is reliable, albeit coloured by the views of the mother. I am satisfied that she is a responsible adult who will put the interests of the child above the disputes of the parties.
Dr R
The Independent Children’s Lawyer tendered a report by Dr R of 7 March 2006.[12] In that report Dr R assessed that the father had no disorder that should attract a psychiatric diagnosis.
[12] Exhibit ICL2.
In terms of the mother, Dr R opined that her history suggested a personality disturbance below the level of justifying a diagnosis of Personality Disorder, a volatile mood and a proneness to low grade depression in adverse circumstances.
Dr R observed that both parents had admitted to past abuse of alcohol and cannabis and showed strong hostility and disapproval of each other. Dr R’s report was part of the material upon which the Federal Magistrate relied when he made orders in January 2007.
It seems implicit in the reasons of the Federal Magistrate that he accepted the evidence of Dr R. He also was concerned about the father’s then continuing conjugal jealousy of the mother.
Dr R’s report was admitted without objection subject to submissions as to what weight should be attached to it. There were two issues which were raised in the report. One was the question of the father’s conjugal jealousy[13] referred to by Federal Magistrate Roberts in his 2007 reasons and his view of the mother’s traits of personality disorder. The root cause of the conflict may reside in the combination of these problems.
[13] The term jealousy is defined in the APA dictionary of psychology n. a negative emotion in which an individual resents a third party for appearing to take away (or likely to take away) the affections of a loved one. Jealousy requires a triangle of social relationships between three individuals: the one who is jealous, the partner with whom the jealous individual has or desires a relationship and the rival who represents a pre-emptive threat to that relationship. Romantic relationships are the prototypic source of jealousy, but any significant relationship (with parents, friends, and so on) is capable of producing it. It differs from envy in that three people are always involved. (Edited by Gary R, VandenBos Washington, DC American Psychological Association, 2006) The term conjugal is defined in The New Shorter Oxford English Dictionary as of or relating to marriage, matrimonial; of or pertaining to a husband or wife in their relation to each other. (Edited by Brown L Clarendon Press, Oxford 1993).
Ms O
The family reports of Ms O of 2001 and 2002 were tendered into evidence.[14] That witness was not called for cross-examination and the question of weight, if any, which should be attached to those reports, can only be historic, bearing in mind their age. I have treated the reports as providing some history, and not as any value in the present family dynamics.
[14] Exhibit ICL3.
Mr T
An affidavit of Matt T sworn 4 October 2010 and filed 22 November 2010 was read into evidence. He was the child’s teacher in 2010. There was no cross-examination of this teacher and his evidence was admitted without controversy.
His evidence was consistent with that of the school principal, Ms Y. He said that the child had settled into school well and there have been no behavioural difficulties. His evidence was that the child plays with a group of seven boys at his lunch time. This is also consistent with the evidence of Ms Y who also said he did not regularly play with his siblings.
The teacher observed that there was a week when the matter came to court and the child did not attend school and when he went into the care of the father, the teacher noticed no changes in his behaviour.
Apparently Mr Lark has on a number of occasions entered the physical education centre to speak with the child and sometimes visits the school. Mr Lark has another child at that school.
Ms F
Ms F swore an affidavit on 22 November 2010 and that affidavit was filed on the same day. She is a social worker employed by the education department and provided evidence of a meeting between herself and the child in November 2010. In that regard, it appears that the child made complaints to this witness similar to those that he raised with me at the meeting in February 2011. At Annexure “A” of her affidavit, Ms F says:-
…[The child] appeared to have an expectation that I knew about his situation and was very matter of fact in describing how he wanted to live with his Mum and that he didn’t want to go with his Dad. [The child] appeared detached while discussing his family situation stating he has given his Dad chances to change. [The child] stating his Dad won’t change. [The child] spoke first in a negative manner about his Dad stating how in the past his Dad has left him alone that his Dad drinks a lot, how a friend of his Dad has assaulted his Dad while [the child] was staying with him. [The child] also talked about a incident where his grandmother had been shot by her partner at that time. SW questioned how long ago these things happen [sic] [the child] appeared awkward in answering. [The child] continued to discuss incidents of how his Dad drinks. When questioned what Dad drinks [the child] was limited in describing the type and container. SW questioned [the child] does he feel safe at his Dad’s [the child] stating not when he drinks. As the conversation continued [the child] discussed freely how his Dad had made a sign for a [sports] stadium. [The child] went into detail of how his Dad had gone about working on the sign. Appearing proud his Dad had made the sign and that he had been with his Dad when it was placed in the stadium. [The child] discussed how he visits with his Dad’s Mum which he enjoys and like [sic] her partner.
[The child] worked freely through the St Lukes Strength cards. Discussing how he enjoys school and finding it an escape from what happens at home. [The child] placed the card “I am interesting” in the “No” pile when questioned why he had placed the cards in the “No” pile [the child] stated his friends tell him he is always “down” and sad. [The child] discussed how he is happy some of the time that he is the happiest when he is with his siblings. When questioned by SW if [the child] woke up tomorrow and his world had change life as he knew it today was different how would it look ? [The child] stated he would be living with his Mum full time and they would visit New Zealand. SW questioned why New Zealand [the child] answered to visit family and learn about their Mauri culture.
[The child] discussed how he was disappointed how the court said he was to spend time at his Dad. [The child] discussed how he is sick of his parent’s fighting over him that it had been going on for 12 years and he is over it. [The child] stated it would be easier to stay with Mum as she constantly talks about him having to go to his Dad’s. SW clarified with [the child] by paraphrasing if you stayed with Mum all the time Mum would stop going on about your Dad and things would be peaceful [the child] agreed. [The child] asked the SW not to tell his lawyer as it would go against his Mum. [The child] gave permission to SW to contact his lawyer as he would like to talk to her. …
There is cogent evidence of the child being caught up in the conflict between his parents and the child expressing a view that he did not want to spend time with his father but at the same time being proud of his father’s work. This is part of the evidence upon which I have concluded that the views of the child are real but are a reflection of what he believes his mother wants him to say. Underlying the surface view is the child’s continuing relationship with his father.
There is some evidence of the father drinking alcohol when with the child. However, this evidence seems to be somewhat historic and may be a reflection of what he has been told rather than his independent memory.
Report of Kristen Wylie
Ms Wylie, the Independent Children’s Lawyer prepared a transcript of notes[15] of the interview with the child, which I have discussed elsewhere in these reasons.
[15] Exhibit ICL4.
From my recollection, these notes are accurate, although not a complete transcript. I have had regard to what was said by the child and that the report is a good record of the discussion.
Mr R
Mr R is and has been the principal of Primary School 2 for about 10 years. He has provided evidence in these proceedings. This evidence was challenged and the veracity of it was put in issue. He was cross-examined by counsel for the mother.
For the reasons set out, I accept the evidence of Mr R. I envisage that he has been or will be the subject of complaint to the Tasmanian Educational authorities about his approach to the child’s education and alleged bullying at Primary School 2 and perhaps in giving evidence in these proceedings. Evidence from independent observers is of great assistance to courts in finding facts. In Family Law proceedings, it is often the teachers and school principals who provide objective insights into the dynamics impacting on children. This case is an example of the value of such evidence. As such, I will provide permission for these reasons to be made available to Mr R and the Tasmanian Education Department (but not for further publication without leave) to have insights into the education of the child and to have a context in respect of the determination of any complaint. The child will be one of the students in the State school system for the medium term future.
The principal’s evidence was measured and careful. He answered questions frankly and comprehensively. He made concessions at appropriate times. His evidence was not in any way shaken or compromised by cross-examination.
In meeting with the child on the first day of the hearing, the child expressed concerns about what the principal had or had not told him in terms of the child moving to Primary School 1. The principal cannot recall the precise conversations he had with the child. I am satisfied that the child has a real memory, but perhaps a memory distorted by subsequent discussion at his mother’s home of a conversation with the principal. I am equally satisfied that the principal could not have permitted the child to go to another school until such time as the legal department made a pragmatic decision and gave further direction to Mr R.
The principal’s approach was impressive and professional. I accept his evidence as being reliable. Counsel for the mother endeavoured to impeach the evidence of the principal without success.
Mr R confirmed that the child was attending this school from May 2007 to May 2010. Mr R said that the child exhibited challenging behaviours after his enrolment and set out a history of problems in respect of the child’s behaviour at school. He was concerned by some of the behaviour exhibited by the child in terms of his reaction to requests to learn and his overly developed sense of rights. The principal observed that the child was aware of the conflict between his parents and had observed the mother and Mr Lark discussing their concerns in front of the child on numerous occasions. On at last two occasions, the mother had removed the child from school on days that he would otherwise be going to his father’s.
In 2010 the principal said the child’s behaviour changed significantly. He was impressed with the child’s behaviour and said:-[16]
… It was an extremely positive indicator for his future education.
[16] At paragraph 15 of his affidavit filed 18 August 2010.
In April 2010 the child presented a letter at the school, which set out[17]:-
Dad
Staying at mum’s full time want to go to school because I want to go to the same school as my brother and sister. I am sick of 50/50 and want [sic] in one place. I will come back to your house weekends a fortnight, 5.00pm Friday to 5.00pm Sunday, holidays and pick ups at [Ms S’s]. You sign the papers to make this happen, my choice not mums or yours, I did not talk to you about this because I did not want to upset you.
[17] Ibid at annexure “A”.
Mr R said, and I accept, that these were not likely to be the words of this child, nor were they this child’s normal style of composition. Having regard to this evidence, I infer that this letter had significant input from someone other than the child, most likely the mother and/or Mr Lark.
The father was due to collect the child on 12 April 2010 when the principal became aware that both the mother and father were going to attend at the school and endeavour to pick up the child. The principal had the child removed from class and brought to his office. Mr Lark arrived and the principal indicated that he was to leave the school premises and that he did not have permission to speak to the child in class and he was to stay outside the grounds. Shortly afterwards the father arrived and was directed to the office. In the presence of the counsellor the father asked the child if he was “alright to come home”. The child, without hesitation said “yes dad”. The child and the father headed off towards the father’s car.
When the child and the father were in sight of Mr Lark, Mr Lark re-entered the school and started yelling at the father and the child. It is apposite to record exactly what the principal said at that time:-[18]
22.When [the child] and his Father came in within [sic] the line of sight of the Mother’s partner, the mother’s partner re-entered the school grounds, started yelling at the father and was yelling at [the child] that [the child] needed to come home with him, and not the Father. directed the Mother’s partner to leave, but my directions were ignored and the Mother’s partner continued his verbal barrage, including yelling at [the child] with words to the effect ‘you don’t have to do what he says, you come with me’. At this point the Father let go of the child’s hand and said ‘do you still want to come with me?’ [the child] said ‘yes’, and without hesitation got into the front seat of his Father’s car.
23.I then very firmly informed the Mother’s partner that he must leave the premises immediately or I would call the police. he Mother’s partner then complied, but got in his vehicle and recklessly drove straight into the school grounds, wound down the window and started screaming to [the child] to get out of the car. The Father then drove away.
24.The child attended school for the remainder of that week, without incidents. There were no issues relating to [the child’s] demeanour, conduct or behaviour.
25.The Father delivered [the child] to school on 19 April, which was the day [the child] was due to be returned to his Mother.
26.Approximately five minutes into the school day, the Mother arrived without warning, and stated she was there to collect [the child] and take him home. explained to the Mother that it was inappropriate to remove [the child] from school, particularly at that stage of the school day given that he had just arrived. he Mother stated that [the child] did not feel ‘safe’ any longer and did not wish to return to the school. spoke to the Mother as to the seriousness of applying any part of keeping [the child] away from school. he Mother said it was out of her hands now, it was up to [the child] whether he wanted to attend school, or go with his father, that was none of my business. he Mother then removed [the child] from school.
27.I spoke with the class teacher. The child] came to school quite happily and there was no indication that anything was awry.
[18] Affidavit filed 18 August 2010.
In the final paragraph of the principal’s affidavit, he said:-[19]
41.As the Mother’s relationship with the school deteriorated prior to [the child’s] removal from the school, [the child] made it clear to me that his Mother thought I was ‘an idiot’. During one of our many discussions [the child] said to me words to the effect of ‘Mum thinks you are an idiot and I don’t have to take any notice of anything you say’. I said to [the child] ‘well you’re here lets make the most of it’ and [the child] replied ‘I can do what I like, Mum says you are an idiot, I can do what I want’.
[19] Ibid.
Having regard to the evidence of the father, Mr R and my assessment of the evidence of Mr Lark, I find that the event was as set out by Mr R.
He confirmed that the mother’s relationship with the school deteriorated but that the father continued to be positive in his relationship with the school and with the principal. It is clear from his evidence that both the mother and Mr Lark were confrontational in their approaches to the school. I am concerned that this may be a feature of the mother’s approach to the child’s education into the future.
There had been a number of allegations of bullying made by the mother and the child. Mr R said the school had a bullying policy which was put in place. He said much of the bullying appeared to be where the child was a perpetrator on another student.
The evidence of the principal was that the child showed defiance in 2009, which was exhibited in the later part of his time at that school in 2010. This is set out in paragraphs 8, 9 and 41 of the principal’s affidavit and I accept that evidence.
There was an endeavour by the mother to criticise the principal for not engaging with her in respect of the child and the mother wanting to move the child to a different school.
This has to be seen in context. From the evidence (including the evidence of the principal and a reference to an email) the legal department of the Education Department had advised the principal that the child was required by court order to remain at that school. It is likewise clear that the advice the principal received was that the only way that could change was by order of a court.
The principal acted appropriately in respect of this issue raised by the mother. The mother was determined to take the child from the school irrespective of the terms of any court order (her behaviour in respect of attending the school in October 2010 is indicative of that approach – whether or not the order was at that time breached or otherwise).
The principal adopted a sensible approach and dealt with the mother and her partner in a firm and child-focused way. He observed that it was hard to keep the mother and Mr Lark focused on the child’s needs.
The principal was aware that the child’s siblings were attending Primary School 1. From the evidence of Ms Y (the principal of Primary School 1), the involvement of the child’s brother and sister commenced in 2010.
When the mother removed the child from Primary School 2, the legal department made a pragmatic legal recommendation that the child remain enrolled at Primary School 2 but attend school at Primary School 1 so that the child’s education would continue. The principal, Mr R, adopted and embraced that course.
Mr R has been demonised by the mother to the extent that the child now refers to him in a derogatory way. I am satisfied on the evidence that this has been directed by or on behalf of the mother. It is poor parenting for the mother and/or Mr Lark to encourage the child to be disrespectful to his former school principal; it is a poor parenting attitude on her part.
Ms Y
Ms Y is the principal of Primary School 1 and provided affidavits filed the 22 November 2010, 23 November 2010 and 21 December 2010. Ms Y’s evidence was not challenged. I accept her evidence as being reliable.
In her second affidavit, Ms Y set out an event on 22 November 2010 when Mr Lark and the mother attended school to speak with the child. The mother’s attendance at school may [emphasis added] not be technically in breach of the order made by Federal Magistrate on 9 September 2010 but was clearly at odds with the intent of that order.
In her third affidavit, Ms Y observed that she had now received a copy of the order made 2 August 2010 which restrained the mother from approaching the child in the vicinity of Primary School 1. The mother brought the child to school on 14 October 2010 in a distressed state.
Part of her evidence was that at the end of the 2010 school year, there was a problem with some consent orders that the parties had entered into.
The consent orders provided that the child would go to the mother’s care on the last day of school, Vis 17 December 2010. Unfortunately, the last day of school was 16 December 2010. Both parents turned up to collect the children.
Ms Y asked the parents to remain until school had concluded for the day. The father remained and this was impressive to Ms Y. The mother, despite this request, left with the child.
Family consultant Ms G
The family consultant prepared a report dated 23 August 2010. She gave evidence in accordance with that report and her report was read into evidence. She was cross-examined in respect of that report. The family consultant observed that both parents identified, in the course of the long standing conflict about the child, that only one outcome could arise - that the child live primarily with one parent or another. I accept that conclusion.
She noted that the father displayed some hostility towards the mother. In that regard she was cross-examined by counsel for the mother as to whether this was a continuation of the conjugal jealousy to which Dr R alluded in his report dated 7 March 2006.
The family consultant could not be positive one way or the other. It was significant to note that the father seemed to find it easier to talk about the conflict rather than the parenting issues with regard to the child.
The family consultant observed that the mother was emotional and articulate. She said:-[20]
… Her artistic charisma was apparent; and her reported significant achievements as a musical performer probably assist [the mother] with public presentation. She was intent upon presenting her view about the conflict and her credentials as a parent, suggesting that her need to be understood fully was very important to her.
… [The mother] like [the father] tended to be tangential in her responses to topics raised with her and tended to focus on the conflict and her apparently lost musical career.
[20] At paragraph 23 of the family report dated 23 August 2010.
In part of her evidence, the family consultant said:-[21]
She said [the mother] however she wanted no further confusion for her younger children [J] and [G], who presumably would not be able to understand why [the child] no longer lived with them.
[21] Ibid at paragraph 26.
It is of value to look at her final evaluation. She concluded that it was timely to give the child at least some stability before he encounters the hormonal changes and developmental demands of adolescence. She observed that the child needed stability, support and guidance. She said that this was not the child’s choice, she reflected on the good relationship the child had with both of his parents and expressed the view that he probably preferred his mother’s home. He made that clear to me when expressing his view.
The family consultant also considered the impact of his relationship with his paternal grandmother, Mr Lark and other members of the family. She said, and I accept, if the child [and his siblings] do not have the opportunity to spend time together, to share experiences together and thus grow together then their current close sibling relationship may not survive into the future without repair.
Finally, she said that it would be important for a balanced explanation to be given to the child in respect of the orders. In accordance with the wishes of the child, I will directly let him know what orders I am making, however, I will leave it to either the family consultant or the Independent Children’s Lawyer to provide a balanced explanation of the orders. The child had informed me that he did not want me to give reasons to him for the orders.
In the context of the family consultant’s conferences in the second half of 2010, she observed a good relationship between the father and the child notwithstanding the child had not seen the father for a number of months between late April 2010 and early August 2010.
She said the child had a general preference for his mother’s household but that the mother placed the child under enormous emotional pressure because of that and the mother’s approach. She observed that the child had a good relationship with Mr Lark.
The child’s views are based upon his concerns of exclusion from his mother’s home. This says much about the mother’s lack of insight and failure to find a sensible resolution to this conflict. I am satisfied that the mother, in many respects, exacerbates and inflames the conflict.
It is clear on the evidence of the family consultant and I accept that the child has a close relationship with both parents and has been subjected to enormous emotional pressure.
The family consultant’s view was that the child had a particularly close relationship with J and a close relationship with G.
Her evidence in respect of the equal parenting arrangements was subtle but clear, that is that in this case it has not worked.
The family consultant was worried at the child’s expression to me that he would have preferred to be in foster care rather than be left in the current conflict. In terms of this the family consultant gave evidence as to the impact on the child as to the continuing conflict and amplified some of the assertions made in her report.
When cross-examined by counsel for the father, the family consultant observed that if the mother’s application for orders were put in place, that is three weeks a year plus telephone calls, it would significantly reduce the relationship between the father and the child. She provided a list of impacts including being unsettled, impact at school, distressed, depressed and self blame.
It was the family consultant’s view that the derogatory use of the surnames of the Federal Magistrate and the school principal came from the mother’s household. On the evidence of the mother and hearing her views, the family consultant, the school counsellor, the school principals and my observations of the child, I am satisfied that the mother or members of her household have used derogatory terms to the child in regard to the principal, the father and Federal Magistrate Roberts.
On the evidence, it appears that in the mother’s household the positives would be his siblings and a good relationship with Mr Lark. The negative side to this is that there are issues about attending school, changing school, lack of boundaries and the mother’s involvement in the child’s defiance and overly developed sense of his entitlement.
The family consultant said, and I accept, that both and all the relevant adults were focused on coping with the conflict and not primarily on the needs of the children.
The mother suggested there was a risk to the child in the care of the father as a result of alleged substance abuse and neglect. I am not satisfied there is any current evidence of substance abuse and/or neglect (except by both parties in terms of the ongoing conflict).
In the family report, there is some suggestion the father is physically available but not always emotionally available. This reflects the views of the child when he spoke with me. I am satisfied that the parenting styles are different and that any difference between the households is expanded and amplified by the mother and Mr Lark.
As an example, in his affidavit of 23 December 2010, Mr Lark said that he had said to the child “it will be finished soon and he will get his wish”. Having regard to the complex conflict of this litigation this is indicative of engrossing the child in the litigation and creating what may be a false expectation.
The parties need to focus on minimising conflict so that their child can have regular time with each parent.
I accept the reliability of the evidence of the family consultant.
Judges meeting with the child
At the commencement of the hearing, a submission was made on behalf of the mother and the father that I ought to see the child to ascertain his wishes. It was the mother’s submission that such a step should be taken before the parties commenced giving evidence. Counsel for the father and the Independent Children’s Lawyer supported the proposed meeting.
Prior to making that determination I requested that the family consultant give evidence as to the advisability of such a course. The family consultant gave evidence that it would be in the child’s best interests for the child to see me as the hearing Judge. She made some suggestions in respect of the approach adopted when speaking with the child.
The process of seeing the child was to be in the presence of the Independent Children’s Lawyer, her counsel, the family consultant and I had proposed that my associate attend as a record keeper. It was envisaged that the meeting would be only done on the consent of the child and the child’s knowledge that there would be a record of the meeting and that the ultimate decision as to parenting was for me and it was not the responsibility of the child to determine with whom he would live or continue to live.
Having determined that I would see the child, arrangements were made for the child to be collected by the Independent Children’s Lawyer from the child’s school and the meeting would take place at the office of the Legal Aid Commission in Town 1.
I determined to see the child having regard to the submissions of the parties and having regard to the provisions of the Act requiring the Court to have regard to the child’s views. That decision was reinforced by comments made in a report on ‘The effect of family violence on post-separation parenting arrangements’.[22] This material was the result of research into family law and family violence in Australia commissioned by the Attorney General in 2009. In that research in relation to parenting arrangements, the article commented:-
In relation to parenting arrangements, most children surveyed (66.2%; “N=51 of 77) said they would have liked to have made a decision about their residence and contact arrangements following separation; in particular those who had been exposed to or were direct victims of family violence. The findings are supported by either national or international research that indicate that children want to be consulted on issues that indirectly affect them. (Bagshaw, 2007; Campbell 2008; Cashmore and Parkinson 2009; Neil, 2002; Smart, 2011). Children in our study said they wanted their decision to be communicated to another adult – such as a Judge or Magistrate (37.7%), a lawyer (28.6%), or a counsellor mediator (24.7%) – which suggests that children and young people might find it easier to communicate with their choices of a professional adult rather than to members of their family – especially where those children have experienced family violence. While some respondents would have liked their mothers (26%) or father’s (19.5%) to ask them about where they might live, these are frequencies that reflect the literature that suggest that parents can put their children in difficult positions when they ask them for their ‘wishes’.
[22] Bradshaw D, Brown T, Wendt S, Campbel A, McGinness E, Tinning B, Batagol B, Sifris A, Tyson D, Baker J and Arias P F The Effect of Family Violence on Post-Separation Parenting Arrangements Family Matters 2011 No. 86 – Australian Institute of Family Studies at page 58.
The mother was critical of the principal of Primary School 2. This was reflected in the child’s view of the principal of that school. I accept the child used the language asserted by the father. When I was speaking to the child, he referred to the principal of Primary School 2 by using his surname without any respect or regard at all.
The principal of Primary School 2 had been told by the legal branch of the Department of Education that the child had to remain at that school and it was not open for the parents to change the school. He encouraged the child to do well. The child either misinterpreted or misunderstood things that the principal may or may not have said. I am confident that the mother would have used her best endeavours to create disharmony between the child and the principal.
The principal could not entertain any application for the child to change schools. When the mother unilaterally removed the child from Primary School 2, the Department of Education were faced with the child not attending school at all. The legal department adopted a pragmatic approach to allow the child to attend classes at Primary School 1 but to remain enrolled at Primary School 2.
The principal of Primary School 2 and the principal of Primary School 1 facilitated that process on the advice of their legal department.
The principal of Primary School 2 acted appropriately and affectively in terms of this child. I reject any criticism of him and I commend him in the way he dealt with this high conflict matter and the way he adopted a child-centred approach. The child is angry with the principal of Primary School 2 and blames him. This reflects more on the attitude of the mother and her parenting and in no way upon the approach of the school and the principal.
Medical report
The father was criticised by counsel for the mother for not producing the photograph[25] of the child’s bruise earlier. The father took a photograph of the child’s bruising and took the child to see a doctor. The father acted appropriately. He was unable to find the digital chip which contained the image until it was raised in his second affidavit. The father then made enquiries and undertook a search and found the chip and then produced a copy of the photograph.
[25] Exhibit F1.
The criticism of the father in that regard was, in my view, unwarranted.
False paternity claim
The father claims that the mother’s second child, J, could be his. The father has on two occasions raised his concerns with the mother. The father says that he and the mother had a continuing physical relationship following separation and that as a consequence, it was possible that J was either his son or Mr Lark’s son.
I of course make no finding in respect of that aspect, nor will I comment any further as to the question of paternity as it is not a matter before me. It is, however, indicative of the deep and unresolved conflict that exists between the parties.
High School
The child wants to go to High School 1 because that is where his friends from school are going. This is a school which does not go through to Year 12; it goes through to Year 10. The mother wants the child to attend at that high school.
The father’s desire for the child to go to Private School 1 and High School 2 was not put in place in any antipathy to the mother and to the child but simply because he thought it would offer the child a better education and education up to Year 12. It was a child-focused approach.
The father is also concerned about the change of school. The child has changed primary school five times (although he will remain at Primary School 1 for the remainder of this year). The father is looking for stability in schooling.
Having regard to the orders I propose to make that the child live primarily with the mother, combined with the father being open to the child attending High School 1 (in fact the father attended that school) and the child’s expressed desire to attend that school, I propose to make an order to that end.
Having regard to the history of the child changing school and the mother’s somewhat mercurial nature, I will make an order to that end and provide that any change of school must be with the consent of both parties or an order of the court exercising jurisdiction under the Act. It will not be open for the mother to arbitrarily change the child’s school. Any such application in the first two to three years of high school would need to be with the consent of the Court or the written consent of the parties.
Having regard to the broader aspects of what has gone on in these proceedings, the party seeking the change would still need to seek leave to make that application.
There was an altercation in April 2010 when Mr Lark attended the child’s school and endeavoured to interfere with the collection arrangement of the father. Having regard to my findings of evidence, I am satisfied that Mr Lark was aggressive, loud and abusive. As I indicated earlier, I prefer the evidence of the father and the principal to the evidence of Mr Lark.
I am satisfied that the interaction between the father and the child, at that time, was patient and child-focused.
Leave to commence proceedings
The child has had a life where there has been little or no respite from continual proceedings. The hearing from which these reasons flow is the third substantive hearing about the parenting arrangements for this child. The first hearing was in 2002, the second hearing in 2007 and there has been almost constant litigation between those hearings. The child has been the subject of three family reports and continual investigation in terms of the parents’ respective positions.
The child wants the litigation to be brought to an end. When I spoke with the child he expressed a time of happiness when his mother thought the litigation was at an end. Even during the time when there was no litigation between early 2008 and mid 2010, there were proceedings in the State court system seeking family violence orders. I digress and comment in respect of those proceedings, that they arise from the mother’s anger, dislike and hostility of the father and the remnant of her views of the father being violent, aggressive and jealous in the years following the marriage breakup and not in relation to any recent threats, and combined with the father’s inability to see how his presence can cause anxiety in the mother.
It is clear from the family report, and I am satisfied, that the child has been enmeshed in these proceedings. He wanted to speak to the Judge because he felt he had not been heard and I am satisfied that the parties discussed this litigation and the feelings towards each other in the presence of the child, to various levels. The child has reflected the mother’s views in respect of Federal Magistrate Roberts.
The impact these proceedings have had on the child is such that prior to the 2007 hearing the child expressed a desire to be dead. When I spoke with the child he wondered why this conflict had continued and said perhaps foster care would have been a better proposition for him. These are chilling comments for a child to make.
The family consultant opined that:-[26]
It is timely to give [the child] at least some stability before he encounters some hormonal changes and developmental demands of adolescence and also before he embarks upon the most important years of secondary education, given that he is reportedly an above average student and his intellectual potential needs to be developed carefully. [The child] will need stability support and guidance.
[26] At paragraph 47 of the family report dated 23 August 2010.
Section 69ZN(3) provides:-
The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
This child has lived and breathed litigation all of his conscious life. He is tired of litigation (as are the parties). I do not intend to allow this to continue. I intend to put in place an order requiring the parties apply to a court for the commencement of any [emphasis added] proceedings. As I have noted earlier in these reasons, this is not an order under s 118 of the Act but an order to give effect to the principles set out in the above section. This will include any application including an application for contravention.
A party will need to attend court and, in the absence of the other party, persuade a court that it is worthwhile to commence proceedings.
Hopefully that will bring an end to any applications that are of a nature which would offend the principles set out earlier.
It is my hope that it diverts the parties out of the litigation and gives this child a respite from litigation during the remainder of this year and his high school years.
The first option is that the mother’s proposal is accepted. That is that the child spends little or no time with the father and has no communication with the father. The problems with this approach are many and varied. It rewards bad, abusive and neglectful behaviour on the part of the mother. If the mother acts this way in respect of the child’s relationship with his father, how will she react when other difficulties confront her in parenting this child, particularly as this child is now entering into the challenging years of his development. I am concerned that the mother would see this method of emotional abuse as a legitimate (if not court approved) way of managing the child.
I could put the child in the primary care of the father. If I did this the child’s needs would be met at an adequate level but he would be, to a significant extent, excluded from the important relationship he has with his brother, sister, step-father and mother. It would be contrary to the expressed views of the child that his preference is to live primarily in the mother’s household.
From my analysis of the evidence that would not meet the needs of the child.
Another option is to leave in place the existing ‘equal time’ or ‘substantial and significant time’ arrangements. Those arrangements have been in place for a number of years and have been spectacularly unsuccessful. That is not a direct or indirect criticism of the system; it is an indirect criticism of both of these child’s parents and Mr Lark in putting their personal need and conflict ahead of the needs of the child. I say this based on the evidence. The question I asked the father when the confusion arose on the last day of term in 2010 – “why not walk away” - did not illicit a satisfactory result. Another example is the fact the father continued to drive past the mother’s home despite knowing that it upset.
The mother’s engagement of the child in the process and imposing upon the child this awful choice (in concert with Mr Lark) is indicative of the mother’s behaviour.
Therefore equal time is not an option.
The least worst option (noting that these parents have not provided an option for a good result) is that the child live primarily with the mother but spend regular and continuous time with the father. That will offer to the child a meaningful relationship with his father, of which I am satisfied there is a real benefit to the child. It will also provide the child with a single and primary household and enable him to retain a relationship with his brother, sister, both parents and Mr Lark.
If there are any issues of poor behaviour, I can rely on each parent to be alert to those matters and if necessary report them to the appropriate authorities. The question then arises as to whether the mother would adopt the course that she has outlined to the Court and threatened to the child, that is to walk away from the child and alienate him from his brother and sister if her proposal is not adopted. That is of course always open to her.
I will direct that a copy of these reasons, the three family reports, and Dr R’s psychiatric report be forwarded to the Tasmanian State Welfare Authorities to provide a context if there are public law issues arising in respect of this child.
There is a serious public policy issue arising from the mother’s approach. What she is saying is that unless the Court accepts her approach in terms of the parenting time between the child and his father, she will not have a relationship with the child and will not allow the child to have a relationship with his siblings. Perversely to that end, she is supported by Mr Lark. The justification of the mother and Mr Lark for adopting this course is to preserve the child from further conflict. There are high levels of conflict but much of it is brought about by the mother and Mr Lark for the reasons I have indicated earlier. I have had regard to the broader public interest.
The mother believes that the child will not miss his father. This is an expression of the mother’s hope over reality having regard to the evidence of the family consultant and my observations of the child.
When asked, the mother refused to answer whether she liked the father but said she could not look at him, felt nauseated by him and felt invaded by him. She could not stand being in the same room as the father and at one stage during the five day hearing left the Court because of that concern. She will not encourage a relationship between the father and the child.
The mother and Mr Lark were both cross-examined in relation to their exposure of the child to the Court proceedings. She prevaricated in terms of that evidence. Mr Lark said it was not discussed. Having regard to the comments made by them and in particular that she told the child that if he lives with his father she would not see him, and other statements she made in respect of the evidence, I am satisfied that she discusses the evidence with the child on a regular basis. The mother discussed the proposal that I may see the child with him, she discussed aspects of evidence of the proceedings between Federal Magistrate Roberts and other affidavits. The child was clearly aware of what was in Mr R’s affidavit. Neither the mother nor Mr Lark has shielded the child from any proceedings.
When the mother told the child that if he saw his father he would not see her, she did not seek professional advice and was insensitive. Her actions amounted to more than lack of insight and insensitivity. When cross-examined about how the child reacted, her initial response was ‘why and how and herself’.
The mother has been instrumental in the child moving school on a number of occasions. Primary School 1 is the fifth primary school that the child has attended. The mother disliked Primary School 2 and kept the child out of that school despite what was said in the child’s school report. In the end of year report for 2009, his home group teachers said:-[27]
On occasions, [the child] has made an effort to confirm to standards required within the classroom. Sadly this level of behaviour has not been displayed for the whole term. He can be pleasant, but his demand for attention, and the need to be the focus of interest, is frequently disruptive. More tolerance and sensitivity is required as he is often in conflict with others. In these situations he can make inappropriate or unkind remarks. This affects his and others ability to listen to instructions. Additionally, many reminders are required to start set tasks. Consequently, there have been very few tasks that have been completed in the second half of the year. Many attempts to highlight this to [the child] or enforce expectations, lead to little improvement. Learning to honestly reflect on his actions and seeking attention for the right reasons will improve his behaviour immensely. [The child] needs to apply himself more if he is to show any improvement. We have confidence that with continued support, [the child] will chose to demonstrate a more responsible and determined attitude exhibited more consistently at the start of the year.
[27] Exhibit ICL 7.
At the commencement of term 2011, the child was absent from school on a Monday. The child was placed in the care of the father but the mother’s excuse for holding the child back was because he had not slept on Sunday night and felt unwell. She had no answer to why she did not take him to school at 11.00am.
The mother kept the child out of school for about five weeks in May and June 2010, despite his 2009 school reports. She said this was because the child did not want to go to school. Having regard to the evidence, I am satisfied it was to prevent the child from going to see the father and was a positive step by her in that regard. Her evidence was that it was not is simply unbelievable.
The mother was cross-examined about whether the child telephoned his father on Christmas Day. The mother did not encourage him to make that call.
The child attended martial arts classes with his father. The mother did not encourage him in this activity.
Interestingly since August 2010 the child has settled into school well and is working well at school. The changeovers seem to be operating reasonably effectively (except for the incident on the last day of term). I am satisfied the child benefits from a meaningful relationship with his paternal family and that is the evidence of the paternal grand mother and the family consultant.
It is perverse that the mother complained about the involvement of the Federal Police in collecting the child. The mother was acting in breach of orders of the Court. The mother knew this and knew what the likely consequences would be for breaching the order and yet the Federal Police needed to intervene to facilitate the return of the child to the father. The mother complained about that occurrence when it was brought about by her very actions. That is emotional abuse of the child created by the mother through her blind determination to get her own way.
The mother was cross-examined about a comment made by Mr Lark in Court on 2 August 2010 where apparently Mr Lark said “he can go back to the drug house [the mother]”. The mother understood this to be that the child could go back to the father’s home where he was at risk of exposure to a drug culture. The mother said the child complained last year about finding evidence of intravenous drug use in the home. She complained about the father’s use of cannabis and alcohol.
The mother creates these views in the child’s mind and then asserts that it is his own view. Even her own counsel submitted that she was influential in bringing those views about in the child. The child’s views about spending no time with his father are made in the shadow of the threat made by the mother that she will not see him if he chooses to spend time with his father.
The views expressed by the child in a letter delivered to the father at the school in April 2010 are not the words of the child but the words of the mother and/or Mr Lark. I am satisfied having regard to the evidence of the Primary School 2 principal and viewing the note that they were words that the child was encouraged to write, if not dictated to him by the mother and/or Mr Lark.
The child has access to a mobile telephone and it is clear this has provided a sense of security for him. I will direct that the provision of an operating mobile telephone continues.
Mr Lark does not like nor respect the father and asserts that he [Mr Lark] has ‘already stepped into the roll of the father’. He views the child’s relationship with the father as cold and supports the mother in her proposed move to New South Wales, notwithstanding the impact it would have on the child and, interestingly, his two children.
Mr Lark says nothing positive about the father in the mother’s home and when asked to say something positive about the father he said to the father it was a ‘shame the father did not teach the child painting’. That was not positive. He sees himself as more of a father figure to the child than the father.
Mr Lark said the child has been shielded from the proceedings and has not been informed of them. I do not believe him. It is inconsistent with the remainder of the evidence. Mr Lark said he would struggle getting the child to visit the father. This flies in the face of the reality that the child has spent significant time with the father over many years. Mr Lark lacks insight as he does not acknowledge that he has contributed to the conflict. An example of this was Mr Lark’s behaviour at Primary School 2 when he was aggressive with the principal (which Mr Lark denied and which evidence of Mr Lark is false).
The Independent Children’s Lawyer submitted that there were advantages and disadvantages in respect of both approaches. She talked about her remarks in advance that there was no evidence of current mental illness, no police reports of violence or inappropriate behaviour in recent times, no serious sustained allegations of drug abuse. It was raised but there was no evidence of any value, the current situation is settled and the child is doing well at school and he has turned out a loving and mature child. The Independent Children’s Lawyer was accurate in these submissions.
Yet the child has expressed strong views. The submission of the Independent Children’s Lawyer, which I accept, is that the mother has catastrophes or exaggerated the position of the child. She cannot control her impulses to hold the child back or her dislike and complete disrespect of the father. The mother has exaggerated and expanded the conflict.
Dr R’s report is not current, however, it provides a good background as to the positions of the parties at the time. What is not challenged is that this conflict has had a profound impact on the child where some years ago he said he wished he was dead and now seeks to be fostered. To adopt the mother’s view would offend significant broader public policy issues about the abusive behaviour. However, putting the child in the care of the mother might remove the child from the constant conflict.
The Independent Children’s Lawyer says the child is more stimulated in the mother’s home than the father’s. This was contested by counsel for the father who said there was little evidence to that effect. However, it is clear from the views of the child, the family consultant and the evidence generally that the mother’s household offers more attraction for the child and he is more stimulated in that household.
The child complains, and to some extent I accept the complaint, that the father’s household is at times too quiet and boring and the father does not focus on him as much as the child wishes. The father does not have the child’s friends over and is very quiet, unassuming and undemonstrative. That does not mean the father should not see the child nor that the child would not be sad in being separated from his father.
In living with the mother however the child would have regular time with his siblings and such a decision would give a voice to his view. At the end of her submissions the Independent Children’s Lawyer said it was a matter for me.
I raised with the parties whether I ought to extend the appointment of the Independent Children’s Lawyer. Submissions were made by all in that regard. The consensus was that I ought not to adopt that course. The Independent Children’s Lawyer’s point of view was that the mother had undermined that relationship and from the father’s point of view it may amount to systems abuse. Having regard to the various submissions I do not intend to extend that appointment.
I do however intend to put in place a provision for leave to be granted at the commencement of any proceedings. To make this clear if any proceedings are to be commenced they will need to be filed and brought before me and not before another justice of the Family Court. The application would be considered by me in the absence of the other party to see whether there is any substance, having regard to these reasons, in allowing those matters to proceed.
I derive this power under Division 12A and in terms of protecting this child from the impact of any further proceedings.
I make it clear that this will apply to any contravention proceedings and that I would still anticipate the pre-action procedures or pre-litigation counselling to be put in place. If a parent decides that the child should not see the other parent, spend time or live with the other parent pursuant to these orders and then seeks to terminate that time then they would need to make an application to me rather than do it unilaterally.
The parties have agreed that there should be a consent order that the child’s primary residence is in Tasmania.
I raised whether I ought to refer this matter to the Department of Health and Human Services Tasmania because of the mother’s abusive threat to cut the child off from his maternal family. It was the Independent Children’s Lawyer’s submission that this would not achieve any substantive outcome. That was reflected by submissions on behalf of the mother and those submissions were made in that regard by the father. Accordingly, I will not be referring the matter.
It is agreed between the parties that the changeover for the child, however it should occur, should occur at either the school or Ms S’s home. I will make an order to that end.
The submissions of all the parties and the Independent Children’s Lawyer were that that parent with whom the child primarily lives should have sole parental responsibility. Having regard to the conflict and the findings contained in these reasons I have made a somewhat different order, that being in terms of s 61C of the Act.
I intend to exclude from that the selection of the child’s high school, religion and overseas travel.
I do not want the child to change school because it is an easy course. Accordingly the orders will provide that a change of the child’s school must be done by the written consent of the parents or order of a court exercising jurisdiction under the Act. In that regard any such application will be caught by the provisions of the order I have alluded to earlier.
It is clear from the evidence that the mother and Mr Lark were confrontational in their approaches to the child’s school. It also is clear that the school was a source of conflict for the mother and father and at times almost became a “battle zone”. As a consequence I intend to make orders restraining the mother and father from attending school except during the time that the child would otherwise be in their care on the night prior to school.
I am not satisfied that the mother will act in accordance with her threat. Her evidence at times softened and at other times hardened. If I adopt the course submitted by the mother, that is three weeks a year, then I am satisfied that she would use whatever endeavours she could to cut the father out of the child’s life all together.
The child’s views in respect to his mother are not genuinely held, they are imposed upon him by virtue of the mother’s terrible threat. The child does want a relationship with his father but wants it without his mother and Mr Lark making those threats.
The submissions on behalf of the father were that the current circumstances provide education, stability, involvement with friends and family from both sides, medical care and all other needs and in many ways that is correct . However, the child has expressed views in respect of the impact of this upon him. The father’s home is not as engaging as the mother’s home and this is a case where the idea of equal time or significant and substantial time has been appalling for this child and for this family. This is not a criticism in any way of the Federal Magistrate. The reason that it did not work is the conflict between these parties and their inability to communicate and manage their own affairs. Despite this the child has managed in an exceptional way and in that regard I note the comments of the family consultant.
The sibling relationship is important and needs to be preserved and continued. It is important to the child.
What I intend to put in place is an arrangement where the child spends each alternate weekend with the father and half of all the school holidays. It will provide significant stability and a base for the child. It will enable the child to maintain a relationship with both sides of the family and reduce the conflict. I propose to do just that.
Having regard to the various options available, the less damaging course seems to be that the child live primarily with his mother, spend regular time with his father and endeavour to reduce the contact between the parents. In coming to this view I have had regard to all of the factors under s 60CC including the strong wishes of the child (albeit significantly influenced by his mother and Mr Lark), the need to provide protection for the child, my views about the mother’s ultimatum to the court and the likelihood (or unlikelihood) of her following through with the threat, the relationship between the child and the father and all of the other factors.
I have also put in place a facility to make coming back to court more difficult. This may spare the child of yet further litigation in respect of his parents.
I certify that the preceding three hundred and forty six (346) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 8 April 2011.
Associate:
Date: 8 April 2011