Farrar and Ramsden

FEDERAL CIRCUIT COURT OF AUSTRALIA

FARRAR & RAMSDEN

[2017] FCCA 1799

Catchwords:
FAMILY LAW – Parenting – Child aged 8 – father seeking an order for week about shared care – where the parents have an extremely poor relationship and the father has a history of denigrating and berating the mother – where there is a disjunct between the father’s view of himself as a calm, happy person with an easy-going nature and the way others experience him – where an order for equal time would not be in the child’s best interests – where an order for substantial and significant time would also not be in the child’s best interests – where the father can have a meaningful relationship with the child if she spends time with him on alternate weekends and for half of the school holidays – mother to have sole parental responsibility.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

Cases cited:

Mazorski & Albright (2007) FamCA 520

Applicant:

MR FARRAR

Respondent:

MS RAMSDEN

File Number:

NCC 1925 of 2015

Judgment of:

Judge Terry

Hearing dates:

24 March & 15 & 19 May 2017

Date of Last Submission:

19 May 2017

Delivered at:

Newcastle

Delivered on:

11 August 2017

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Duane

Solicitors for the Respondent:	O’Hearn Lawyers
Counsel for the Independent Children's Lawyer:	Mr Wilkinson
Solicitors for the Independent Children's Lawyer:	Winder Lawyers

ORDERS

Subject to Order (2) the mother shall have sole parental responsibility for X born (omitted) 2009 (“the child”).
Absent the consent of the father in writing or an order of the court the mother is restrained and an injunction is granted restraining her from:
(a)Changing the child’s name;
(b)Relocating the child’s place of residence from the (omitted) area.
The mother shall advise the father in writing of any major long term decision she makes for the child.
The child shall live with the mother.
The child shall spend time with the father:
(a)Each alternate weekend during school terms from the conclusion of school on Friday until the commencement of school on Monday or the commencement of school on Tuesday if Monday is a public holiday or a pupil free day.
(b)During each of the school holiday periods after Terms 1, 2 and 3, for the second half of each school holiday period, commencing at 12 midday on the day which is the middle day of the holiday period and concluding at the commencement of the school day on the first day that students attend the new school term.
(c)During the school holiday period at the conclusion of Term 4:
(i)In each odd-numbered year:
a.From 2.00pm on 24 December until 2.00pm on 25 December; and
b.From 12 midday on the day which is the middle day of the holiday period and concluding at the commencement of the school day on the first day that students attend the new school term;
(ii)In even-numbered years:
a.From the conclusion of the last day of term until 2.00pm on 24 December; and
b.From 2.00pm on 25 December until 12 midday on the day which is the middle of the holiday period.
(d)The father’s time in Order 5(a) above is to recommence on the second weekend of each new school term with the exception of Term 1 in each even numbered year when it will commence on the first weekend.
(e)On the child’s birthday the parent with whom the child is not living or spending time with shall spend time with the child from the conclusion of school until 6.30pm on that day if the day falls on a school day or from 2.30pm until 6.30pm on that day if the day falls on a non-school day.
(f)If Mother’s Day falls on a weekend when the child would otherwise be with the father the child shall spend the Mother’s Day weekend with the mother and the following weekend with the father.
(g)If Father’s Day falls on a weekend when the child would otherwise be with the mother the child shall spend the Father’s Day weekend with the father and the following weekend with the mother.
(h)The child shall spend time with each parent on each parent’s birthday, commencing after school and concluding at the commencement of school on the following day subject to:
(i)Where the birthday falls on a Friday, the time will commence after school and conclude at 10.00am on the Saturday.
(ii)Where the birthday falls on a Saturday or a holiday, the time will commence at 10.00am on the Saturday and conclude at 10.00am on the next day.
(iii)Where the birthday falls on a Sunday the time will commence at 10.00am and conclude at the commencement of school on Monday.
Time pursuant to Order 5 above shall be implemented by the parent with whom the child is to live with or spend time with collecting the child and returning the child to the child’s school, when applicable, or if the child is not attending school on that day, by the mother delivering the child to the home of the paternal grandparents at (omitted) and collecting the child from the home of the paternal grandparents at the conclusion of the time.
The parent with whom the child is not living or spending time may have communication with the child by telephone or other electronic means between 6.30pm and 7.00pm each Wednesday and at such additional or alternate times as may be agreed between the parents in writing with the parent who is to have communication placing the call and the other parent making the child available to receive the call.
Each parent shall inform the other parent, as soon as practicable, of any change to that parent’s residential address and/or fixed or mobile telephone number.
Each parent shall inform the other parent as soon as reasonably practicable in the event of the child while in their being involved in an accident or medical emergency requiring attendance at hospital or being diagnosed with a serious illness.
Each parent is restrained and an injunction is granted restraining them from denigrating the other parent or any member of that parents’ family to or in the presence or hearing of the child or from permitting the child to remain in the presence or hearing of any other person doing so.
Each parent is restrained from discussing these court proceedings with the child or from allowing the child to have access to any court documents relating to these proceedings.
Each parent may obtain from the child’s school copies of newsletters, school reports, order forms for school photographs and other information normally provided to parents and each parent may attend events at the child’s school normally attended by parents.
Each parent may travel internationally with the child during their period of holiday time with the child or such alternate or additional period of time as may be agreed by the other parent in writing provided that they give the other parent notice in writing at least 42 days prior to their proposed departure date of:
i)The dates of departure and return in the form of a copy of the travel documents including flight details if relevant.
ii)The destination or destinations they will be visiting.
iii)Information about how the other parent may contact the child during her absence from Australia to include telephone numbers and accommodation addresses.
Within seven (7) days of today’s date the father shall deliver the child’s expired passport to the mother.
In the event that the father’s consent is required to renew the child’s passport, the father shall do all acts and sign all documents necessary to facilitate the mother obtaining such renewal, and the mother is responsible for the renewal fee.

IT IS NOTED that publication of this judgment under the pseudonym Farrar & Ramsden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1925 of 2015

MR FARRAR

Applicant

And

MS RAMSDEN

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings concerning X aged 8.
In broad general terms the dispute is about whether the parents should have equal shared parental responsibility and the child should live in a week about shared care arrangement during school terms as the father proposes or whether the mother should have sole parental responsibility and the child should live with her and spend time with the father each alternate weekend from Friday to Monday during school terms as the mother proposes.
The parents agree that X should spend half of the school holidays with each of them.
The father’s goal is to be more than a fun Dad or a weekend Dad. He wants to have a close involvement in all aspects of X’s upbringing including choosing and attending extra-curricular activities, helping her with her homework and providing her with strong role-modelling as a stable high functioning adult. He said that alternate weekends and half school holidays would not allow him to achieve this goal whereas equal time would.
It was the father’s case in his filed material, although he chose not to refer to it during closing submissions, that the mother’s physical and mental health was fragile and that there were deficiencies in her parenting capacity and that it was important that X live half the time with a parent who did not share these fragilities and deficiencies.
The father has never made any secret of the fact that he intensely dislikes and distrusts the mother. His trial affidavit was replete with harsh criticisms of her and there were many examples in the evidence of him berating and denigrating her during communications between the parties. However it was his case during closing submissions that he had realised on the first day of the trial that overtly displaying his feelings about the mother was not helping his case and that he had made a conscious decision to change the way he behaved. He said that he had attended some sessions with a psychologist during the trial and that the court should accept that he could be relied on to stick to this decision and that he and the mother would have no difficulty in the future communicating about routine matters and making equal time work for the child.
The father submitted that the court should not place weight on the view X expressed to the family report writer that she would prefer to live primarily with her mother as she had been coached. He said that X had told him that she wanted to live in a week about arrangement.
The father submitted that if the court did not order equal time it should at least order that X spend five nights per fortnight with him. I will not elevate that to the status of an alternative proposal as this would be unfair to the father but I will consider it if I decide not to make an order for equal time.
The mother said that the relationship between the parties was so poor that week about would simply not work. She said that she was fearful about communicating with the father in case she was abused and she was not convinced that the leopard had changed its spots.
The mother’s counsel submitted that X time with the father needed to be limited so that she was not overly exposed to his constant questioning of her and to his strongly negative views of the mother. He also submitted that the views X expressed to the family consultant should be given weight.
During closing submissions, Counsel for the Independent Children’s Lawyer proposed orders which were in line with the mother’s position.

The evidence

The father relied on his affidavit filed on 24 February 2017. He filed but ultimately did not rely on affidavits by his parents Ms A and Mr B and his friend Ms S.
The hearing took place in two parts, the first day being on 28 March 2017 and the second and third day being on 15 and 19 May 2017. At the commencement of the second day the father tendered a letter from a clinical psychologist, Ms L, whom he had seen intermittently since December 2014 and saw on five occasions between 28 March 2017 and 15 May 2017. The letter was admitted by consent.
The mother relied on her affidavit filed on 24 February 2017 and the affidavits of her partner Mr C and her friend Ms J also filed on 24 February 2017,
A family report was prepared by Ms S, a Regulation 7 Family Consultant.
The father, the mother, Mr C and the family report writer were cross-examined.

Background

The parties commenced cohabitation in 2006 when they were both about 32. They have one child, X, who was born on (omitted) 2009.
It is not entirely clear to me where the parties lived throughout their relationship but it would appear that they initially lived in Sydney and in either 2010 or 2011 commenced living in (omitted) which is near (omitted).
The father is a (occupation omitted) and in April 2008 the parties purchased a property at (omitted) which he intended to develop into a (business omitted) for his business “(omitted)”.
The mother lost her job as an (occupation omitted) shortly after the parties purchased the (omitted) property. She did not return to paid employment and after X’s birth in (omitted) 2009 she became her primary carer.
In January 2014 the parties moved to (omitted) in the (omitted) area and X commenced kindergarten at (omitted) School in 2014.
Both parties said that their relationship was very unhappy.
The father complained that the mother tried to control his life and to limit or prevent him socialising, talking to people on social media and attending (hobby omitted) which is one of his passions. He alleged that the mother had mental health problems which caused her to be moody and needy and that she had physical problems which meant that he was required to be heavily involved in the care of X. He complained bitterly that when the parties argued toward the end of the relationship, the mother threw in his face his historic issues with the (omitted) Board and branded him a sexual predator.
The mother said that she had a number of operations and hospital stays for back and neck issues during the relationship and did become moody and irritable trying to deal with life changing issues such as major surgery, losing her job and falling pregnant in her mid-thirties. She said that she felt insecure and worthless when the father engaged in sex chats online or viewed pornography and that he was not supportive after X was born and was either absent from home working most days of the week or working in his home office till the early hours of the morning. She complained that the father prioritised his social or (hobby omitted) engagements leaving her at home alone and feeling low.
The parties separated in November 2014 when X was 5 and they argued over appropriate parenting arrangement for her because the father wanted 50/50 from the beginning and the mother would not agree. Her proposal was that X spend no more than one night away from her.
Initially an arrangement was put into place for X to spend time with the father on alternate weekends with one overnight but in March 2015 the parties agreed that X would spend five nights per fortnight with the father.
In (omitted) 2015 the mother formed a relationship with Mr C and in (omitted) 2015 she commenced living with him. Very shortly afterwards the father alleged that the child had seen Mr C naked. He refused to return her to the mother at the end of his time with her and enrolled her in first one and then a second new school.
Eventually the mother found out where the child was going to school and on 21 August 2015 she collected her from school and thereafter refused to allow the father to spend time with her.
The father had commenced court proceedings when he retained the child and on 23 September 2015 an interim order was made for X to live with the mother and spend time with the father each alternate weekend from Friday to Monday and for half of the school holidays.
This arrangement is still in place.

The father’s circumstances

The father has not re-partnered and at the time of trial he was living with his parents in (omitted).
The father earns his living as a (occupation omitted) and in addition, he is still involved in developing the (business omitted) at (omitted).
The father has had some issues in his career as a (occupation omitted). In July 2003, when he was known as Mr (omitted) and was aged about 28, he was the subject of a complaint of professional misconduct in respect of a 17-year-old patient. At the hearing of the complaint by the (omitted) Board, the father admitted that he had exchanged sexually explicit emails with the patient and had met her away from the consulting rooms. She was identified as a vulnerable and troubled young girl.
On 19 February 2004 the father was found guilty by the (omitted) Board of having had an inappropriate personal relationship with the girl. His registration was suspended for 6 months and it was ordered that after he resumed practice he was to practice under supervision for at least 2 years. The Board described the level of seriousness of the offence as being of a high order.
During the hearing before the Board, reference was made to the investigation of a complaint that the father had engaged in ill-considered internet communications with a 14-year-old. It was noted that no adverse findings were made against him in respect of this matter although he was not exonerated either.
In 2008 the father changed his name to Mr Farrar. In his affidavit he said that this was:
Due to continuous unfair perceptions of me and the potential of losing employment, or of compensation report clients using this information against me, as happened in 2012.[1]
[1] Father’s affidavit paragraph 1`02
In 2011, allegations were made to the ((omitted) Board) about another incident with a patient but they were not followed up.
The mother was aware of the allegations and the findings which had been made and not long after the parties separated she referred to the father during an argument as a sexual predator. She has long withdrawn that allegation and she did not run a case at trial suggesting that X was at risk of sexual harm from the father but the father considers that the mother effectively called him a paedophile and he is extraordinarily angry about it.
The father vented his anger about it to the family report writer in May 2016, he was clearly still angry about it on the first day of the trial on 28 March 2016 and even though he claimed on the second day of the trial on 15 May 2016 that he had had counselling in the intervening period and had gotten over his anger, he still mentioned it frequently prior to leaving the witness box.
I anticipate that the father will be annoyed that I have canvassed his history with the (omitted) Board at length in this judgment but it is essential background material.

The mother’s circumstances

The mother lives in (omitted). Mr C remains her partner and they have a child A who was born on (omitted) 2016. She is engaged in home duties.
X continues to attend (omitted) School and is in Year 3.
Mr C is 37 and is an (occupation omitted). He has a daughter B who is about 8 and who lives primarily with her mother in (omitted) and spends regular time with Mr C by agreement.
The mother was born and grew up in (country omitted) and she has no family in Australia.

X’s best interests

Any orders I make about X must be orders determined by treating her best interests as the paramount consideration and s. 60CC (2) and (3) of the Family Law Act set out the matters to which I must have regard in order to determine X’s best interests.
The primary considerations are the benefit to the child of having a meaningful relationship with each of her parents and the need to protect the child from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
The additional considerations include such things as the views of the child, the nature of her relationship with each of her parents, the capacity of each parent to provide for the needs of the child and the likely effect of any change in the child’s circumstances.

Sometimes it is preferable to start with the additional considerations because findings about them inform findings about the primary considerations and this is such a case.
The first of the additional considerations is any views expressed by the child and the weight to be given to those views.
The father said that X “loved her mummy and daddy equally.”[2] He said that she had had told him and his family on many occasions since separation that she wanted to spend more time with him and with her extended family and he also asserted that she had told him that wanted to spend equal time with mummy and daddy.[3]
[2] Father’s affidavit paragraph 30
[3] Father’s affidavit paragraph 30
I cannot place any weight on this evidence. First, it aligns with the father’s preferred outcome which is always a reason for caution. Second, parents commonly selectively or inaccurately report things a child has said and even if the father’s reports of what the child has said are complete and accurate X might have said such things to her father for any number of reasons, including to escape persistent questioning by telling him what he wanted to hear or telling him what he wanted to hear out of loyalty to him or sympathy for him while she was with him.
The mother said that X preferred to live primarily with her and sometimes expressed anxiety about going to the father. I need to be cautious about placing weight on this as well given that it aligns with the mother’s preferred outcome.
The family report writer provided independent evidence about X’s views. She said as follows:
X indicated that she knew why she was at the interview today and stated “mum and dad both want me to live with them”. She indicated that she likes living with her mum and doesn’t want this to change and she likes seeing her dad too. [4]
[4] Family Report paragraph 98
X said something similar to the family consultant who conducted a child dispute conference earlier in the proceedings.
The father did not accept that these were genuine expressions of X’s views. He said as follows in his affidavit about her expression of views at the child dispute conference:
I understand this was X’s response to the family consultant questioning (sic); she had spent 5 weeks with just the influence of her mother who is known for coaching X.
The father also submitted that the views X expressed to the family report writer were not truly independent because she would associate her with the mother.
There is no basis for these assertions. The family report writer saw no sign of coaching and there was no evidence that the mother was “known for coaching X” as the father asserted or that she associated the family report writer with the mother.
The observation session the family report writer conducted demonstrated that X had a warm relationship with her mother, she has lived primarily with her mother since separation and I am satisfied that the view she expressed to the family consultant in May 2016 represented her true view.
Nothing has occurred since the report was prepared which makes it likely that X’s views have changed. However she is 8 and cannot make a mature decision about her own future. Her views are simply one matter I have to take into account in coming to a decision in this matter.
I must consider the nature of the child’s relationship with each of her parents and any other person including a grandparent of the child.
X has a good relationship with her mother who has always been her primary carer. During the report interviews in May 2016 she said that she missed her mother when she spent three weeks away from her in the previous Christmas school holidays.
It was not in dispute that X also has a good relationship with Mr C and with her baby sister A.
X has a good relationship with her father. She complained to the family report writer that he asked her too many questions but the evidence suggested that they related well to each other. She regularly sees paternal family members through the father and I have no reason to believe that her relationship with them is not satisfactory.
I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to support maintain the child.
The mother said that the father was paying $114.42 per month child support. Neither party raised child support as an issue motivating the other parties’ current application to the court.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the child, to spend time with the child and to communicate with the child.
Both parents are and have always been keen to be part of the child’s life and to make decisions about her and this consideration does not assist me.
I must consider the likely effect of any change in the child’s circumstances including the likely effect of separation from either of her parents or any other child or person including any grandparent or other relative of the child with whom he or she has been living.
This is an important issue in the case.
The father said that a change to equal time would be beneficial because it would mean that he would have greater input into all aspects of X’s care. He said she would benefit enormously from substantial exposure to the different perspective on life he could give her and to his calm happy easy-going nature.
The father said that he had concerns about the mother’s parenting when he and the mother were together. He said that while the parties were together he was able to mitigate those concerns by his own input into parenting and that it was important for X that she had this balance in in the future, which would happen if she lived week about.
The father submitted that X would adjust to the new reality once orders were made as she would still be attending the same school and would still see plenty of her mother and sister.
The mother said that such a change would be detrimental because it would be contrary to X’s views, would separate her from her sister, would place her with a parent who did not have empathy for her and who would not desist from questioning her and trying to mould her to be the person he wanted her to be, would expose her to psychological harm because of the father’s strongly negative view of the mother and would expose her to conflict because of the parents inability to communicate effectively.
I cannot make findings about the likely effect of a change in the child’s circumstances until I make findings about the remaining s.60CC(3) matters and the s.60CC(2) matters.
I must consider the practical difficulty and expense of the 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.
This is not an issue in this case.
I must consider the capacity of each parent to provide for the needs of the child including her intellectual and emotional needs.
The father said that he could easily manage X’s care and education if she lived with him each alternate week. He said that he worked from home and had flexibility as to how he arranged his work as a (occupation omitted). He said that the amount of time he spent on the (business omitted) varied but when and how often he worked on this was in his control.
The father takes part in (hobby omitted) competitions which sometimes require travel but not frequently and he had no doubt and I accept that he could make appropriate short term arrangements for X’s care if necessary.
I accept that the father would do his utmost to ensure that X attended school on time and was appropriately supervised when not at school and it was not in dispute that he was capable of providing appropriate daily care for her in terms of feeding and clothing her. It was also not in dispute that the father and X had engaged in many pleasurable activities since separation and that the father had taken the child on holidays and on short trips away.
However I have concerns about the father’s capacity to provide for X’s emotional needs.
The father is very out of touch with how others experience him. In his affidavit he said as follows:
I believe I am a good father. I model a happy, calm, easygoing nature where working hard can provide rewards.[5]
[5] Father’s affidavit paragraph 19
He repeated this during cross-examination; in answer to a question by Counsel for the Independent Children’s Lawyer, he said as follows:
I am the model of a happy calm easy-going nature
However the father has been the reverse of calm happy and easy going toward the mother since separation. He has sent her many angry and abusive emails branding her a liar and manipulator.
The family report writer did not find the father calm, happy and easy-going either. She found him angry, hostile and overbearing and said as follows:
Mr Farrar seemed calm at the beginning of the interview and showed no signs of anxiety. As the interview progressed, Mr Farrar became agitated and angry when asked questions considered normal for a family assessment such as those pertaining to his role in familial conflict and also about complaints made about him in a professional capacity. Mr Farrar swore and had several angry outbursts throughout the interview. For example when discussing the current care arrangements for X, Mr Farrar stated “it’s rampant male bias, it’s seen as OK to see my daughter 3 nights per fortnight, fuck off, it’s bullshit”.[6]
[6] Family Report paragraph 18
The family report writer also said as follows:
When Mr Farrar was asked about Ms. Ramsden’s concerns about X’s safety as she develops into a young woman given the complaints, he became angry, raised his voice and claimed that the interviewer was psychologically abusing him. He stated “this is soul destroying, she knows this has nothing to do with me as a parent, you’re psychologically abusing me, does Mr C get abused, did you ask about his background?” Mr Farrar also yelled “Ms Ramsden knew about the complaint when she knew me, why the fuck did she stay with me 8 years, fucking ridiculous, just using this for Court, bullshit”. It is of concern that Mr Farrar was unable to engage in a conversation about this issue as was the level of anger demonstrated in response to this enquiry.
Mr Farrar demonstrated a high level of anger toward Ms. Ramsden throughout the interview. He at one point referred to her as stupid and also yelled loudly “this woman is a fucking bitch, she is using everything she can grasp at”. He also swore and raised his voice on several occasions when talking about her and indicated that he has written a letter which he indicated is likely to undermine Ms Ramsden's Workers Compensation case. He stated that he initiated this because “she hurt me, what she did to me, she called me a paedophile and made a complaint to the (omitted) Board”. Mr Farrar’s clear animosity toward Ms. Ramsden is very concerning and is very likely to have a significant and detrimental impact on X’s emotional and psychological well-being as children often feel conflicted and anxious due to competing loyalties when parents are in regular conflict. [7]
[7] Family Report paragraphs 43, 44
The father’s case seemed to be that the animosity he displayed toward the mother and his anger in conversation with the family report writer should be excused because anybody would be angry at being called a paedophile, but the fact that the father was unable to maintain composure in interview with a professional person gives rise to grave concern about this capacity to keep his temper when things do not go his way, and children can be challenging in that regard.
The family report writer, a psychologist, expressed concern about the father’s attempts to dominate the interview with her, his lack of insight into his role in familial conflict, his displays of anger during the interviews and his derogatory comments about the mother and there is force in her expressed concern that:
His demeanour and inability to regulate his emotions in a formal assessment setting raises concerns about his capacity to tolerate and manage challenges in his role as a parent.
X has already experienced her father’s anger. The family report writer said as follows:
When asked if she had any worries, X reported that she doesn’t worry about much except her dad asking her too many questions. She indicated that when she stays with dad and when she talks to him on the phone he asks lots of questions about her mum, Mr C and mum’s house and it makes her feel bad. X reported that as a result she sometimes doesn’t feel like talking to her dad on the phone and feels worried about talking with him and she explained that dad also gets angry when she doesn’t want to talk or wants to hang up.[8]
[8] Paragraph 99 of the Family Report.
Leaving aside the real possibility that the father has greater anger problems than he is willing to admit, his anger toward the mother has led to him not considering X’s interests when making decisions. His anger toward the mother and wish to gain the upper hand with her in my view led at least in part to him withholding X in July 2015 and he had no regard for X in changing her school not once but twice.
The family report writer said as follows about a discussion with the father about changeover arrangements:
Mr Farrar reported that he is agreeable to the changeovers remaining at (omitted) although was angry and demanding about the specifics, stating “as long as she, Ms J or Mr C are not there it can continue”. When asked who else would be able to complete the changeover given Ms. Ramsden’s lack of family support and his demand that her friend and partner also not attend, he angrily stated “ I don’t care, I don’t care if she doesn’t have someone else then deal with it, she started all this”. It is unfortunate that again it seemed that Mr Farrar was fixated on his anger and animosity toward Ms Ramsden and her partner and was not child focused in this regard. [9]
[9] Family Report paragraph 45
The mother said that X became very distressed about her father telling her that he wanted week about and questioning her about Mr C and about other matters and this is credible evidence given that X told the family report writer in May 2016 that one of the things she did not like was her father asking her too many questions.
The father denied during cross-examination that he had been unduly questioning the child but his answers in cross-examination suggested otherwise. It is fair to say that he does not consider this a problem and that he is not willing to reflect on whether what X said to the family report writer may be her true view and not a coached view coming from the mother.
The father was at pains on the second and third day of the trial to say that as a result of the five counselling sessions he had undergone after the first day of the trial, he could be trusted to communicate civilly with the mother, and it might be that he also wants me to accept that he will not behave in an angry fashion in the future, but when he does not recognise his own nature and he has not let go of his beliefs about the mother, I have considerable concern that X may be exposed to stress in the future because of unpleasant communications between the parents and exposure to her father’s views of her mother or stress because her father lets his anger cloud his judgment and does not make child-focussed decisions, and there was nothing to suggest that his counselling sessions with Ms L had touched on the issue of X chafing about being questioned or personally being exposed to his anger.
In summary, I am satisfied that the father can provide appropriate care for X’s care on a day to day basis but I have considerable reservations about his capacity to provide for her emotional needs.
The father chose to remain silent at the end of the hearing about whether there were deficiencies in the mother’s parenting capacity but he gave extensive evidence in his affidavit about problems with her physical and mental health and parenting capacity during the relationship, evidence which he did not retract.
First, the father said that the mother had back problems which required surgery in 2008 and hospitalisation in 2012, 2013 and 2014 for fusion surgery on her neck and back. He said that her back problems interfered with her capacity to perform basic tasks.
The mother agreed that she had a number of back, neck and spinal operations during the period 2008 to 2014. However she said that she had not had surgery since 2014 and did not have any physical issues which impacted on her capacity to care for X. There was no evidence at trial which cast doubt on that.
Second, the father said that the mother had mental health issues of long standing. He said that she had had body image disorder since she was a child, had suffered from bulimia and anorexia and was fanatical about dieting and exercise. He said that on 10 occasions during the relationship she passed out on the floor due to poor eating.
He also said that she had suffered from chronic anxiety and depression since she was a teenager, had spent time in a mental institution in (country omitted), had seen many psychiatrists and psychologists and had been diagnosed with PTSD as a result of being raped and beaten and left for dead by two brothers.
The father said that during the relationship, the mother was not consistent in attending appointments with a psychologist or taking prescribed medication. He said that she told him numerous times that she wished she was dead because of the pain from her disability and injuries.
During cross-examination by Counsel for the Independent Children’s Lawyer on 28 March 2017, the father said that he did not know whether the mother had recovered from her mental health problems as they were of long standing but he did not consider that she was a danger to X at present as a result of them. However he said that he was concerned about the modelling that may come from the mother when X was a teenager.
The mother agreed that for a period in her life beginning in her mid-20’s she suffered from an eating disorder and saw a psychiatrist and that she had a two day admission to a mental health facility. It was her case however that she had not suffered from any urges to binge or purge since X’s birth.
The mother admitted that she had self-harmed in 1994 and said that she had thoughts of ending her life in 2008 but did not act on it and had had no such urges since. She said that she had had counselling since 2015 in relation to PTSD and had learned strategies to assist her to deal with the father. She denied that she currently had any mental health issues which impacted on her parenting and there was no evidence at trial which would cause me to doubt that.
The father said that during the relationship he had numerous concerns about the mother’s parenting of X including her decisions about food and milk, her belief that X had issues with asthma, a tic in her shoulder and problems with her speech, her toilet training procedures, her bed-time routines, her purchase of presents for the child which included pets which unexpectedly died, her comparison of the child with other children, her practice of doing the child’s homework to ensure that the child received a good mark, her failure to bathe the child frequently enough or thoroughly enough and her practice of yelling at the child.
The family consultant referred to the fact that in earlier affidavits in the proceedings the father said that he believed that the mother had Munchausen’s by Proxy based on her allegedly taking X to 6 doctors from when she was 2-3 years old.
The father did not pursue these claims during the hearing or run an argument that the mother was incapable of caring for the child on a day to day basis and there is no evidence on which I could find that this is the case.
When the parties’ relationship ended in 2014, the mother made some unpleasant threats toward the father and some of her early communications to or about him were not pleasant. That has long ceased to be the case however and the father’s communication style to the mother during 2015, 2016 and in his trial affidavit is not mirrored by similar behaviour by the mother toward him.

The mother has not sought to undermine X’s relationship with the father and I am satisfied that she has the capacity to provide for X’s emotional as well as her physical and intellectual needs. The family report writer described her as a warm and empathetic parent and there was nothing in the evidence to suggest that she had anger management issues or had let her issues with the father cloud her judgment when making decisions about X.
Mr C is an (occupation omitted). He does not have a criminal record apart from some speeding fines and does not have issues with drugs, alcohol or mental health. There was nothing to suggest that there were any issues with his parenting capacity.
I must consider 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.
There is nothing in this heading which assists me.
I must consider any family violence involving the child or a member of the child’s family.
The father alleged that during the relationship the mother dictated which friends he could see and communicate with and controlled his use of social media. He annexed emails which he said illustrated this but they were emails from him to the mother so they do not add to his case.
The mother alleged that the father would intimidate her by doing such things as standing in a doorway and not letting her pass.
In the context of this case, I consider that these behaviours are symptoms of an unhappy relationship. I cannot find that they amount to coercive and controlling family violence.
The father admitted slapping the mother in the face on one occasion but said that it was after a prolonged argument and abuse by the mother which included her hitting him with his fists. The father told the family report writer that the mother had thumped him as hard as she could on a couple of occasions. The mother admitted to the family consultant that she had thumped the father once which she said she recognised was unacceptable but claimed that there were extenuating circumstances.
On the state of the evidence, I cannot be satisfied that these behaviours were family violence either. Neither party gave evidence that the actions of the other caused fear and each claimed that they were provoked into a physical response rather than that they used violence to coerce and control and I cannot determine one way or the other where the truth lies about this.
I must consider whether any inferences can be drawn from any family violence order involving the child or a member of the child’s family.
The mother applied for an ADVO in December 2014 alleging that the father had been sending her excessive texts and making excessive phone calls. The application was ultimately withdrawn.
An interim no-assault type ADVO was in place from 18 September 2015 to 9 December 2015.
The fact that the mother made complaints to police which led to ADVO applications is a manifestation of the conflict between the parties post-separation and their inability to communicate effectively but no further conclusions can be drawn from the fact that ADVO’s were applied for and made for a short period of time.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.
The father showed a poor attitude to the child and the responsibilities of parenthood by withholding her from the mother for seven weeks in July 2015.
The father said that he did this because the child told him that she had stayed in the same bed as Mr C and the mother and that Mr C walked around naked in front of her although he had not been naked in bed.
The father rang the Department of Family & Community Services (DOCS) who told him that the matter did not meet the protective threshold but he nevertheless filed a court application and withheld the child from the mother pending this application being heard. He also changed the child’s school, not once but twice, to prevent the mother taking her back.
After the child had been at the second school for a couple of weeks the mother found out where she was and collected her from school. The mother then withheld the child from the father until the matter came to court.
There are two aspects of this which I need to consider, first whether anything of concern actually happened in the mother’s home and second whether the father was justified in withholding the child.
Mr C and the mother both denied that anything untoward happened. Mr C said that his daughter B was staying with him at the time and that both X and B briefly jumped into bed with him and the mother.
He said that not long afterwards he built a cubby house for B and X out of sheets, blankets, chairs and a table and the stairs. He then went into the bathroom and took his off shirt intending to have a shower but before he could do so the girls called for him to come out and fix something with the cubby house. He went out without his shirt on and fixed the cubby house before going back into the bathroom.
Mr C said that the following day the mother delivered X to the father and within thirteen minutes the father began sending text messages accusing Mr C of being naked in front of X.
I accept Mr C evidence. He was a calm and credible witness and nothing in the case suggests that he behaved in a way which placed X at risk of unwanted exposure to him naked as opposed to shirtless.
The father did not have this full explanation in July 2015 but he could have asked for it and given the nature of what the child said he ought to have placed some trust in the mother and not taken the extreme step of withholding the child, especially when DOCS did not consider that the matter needed to be investigated. He was wrong to withhold the child and wrong to change her school and he showed a poor attitude to the child and the responsibilities of parenthood in doing so.
Unfortunately, in his trial affidavit the father still maintained that there was nothing wrong with his actions and that he had simply been acting protectively. He was unable to reflect on how he might have done things differently or on how his actions might have affected his daughter.
I must consider 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.
The parents have a poor relationship and the father lacks respect for the mother. The father said that the parties had recently been able to make some civil arrangements about day to day matters but the situation is fragile and the risk of them coming into conflict in the future over even minor day to day matters is high.
The less the child’s time is shared on school days the less the risk of conflict occurring which could potentially result in this matter returning to court.
I must consider any other fact or circumstance which the court thinks is relevant.
I need to consider the nature of the parties’ relationship and their capacity to communicate because it is a matter relevant to both the issue of the time the child is to spend with each of them and the issue of parental responsibility.
The parties had an unhappy relationship and the father’s antipathy for mother throughout the post-separation period from November 2014 to March 2017 was palpable and manifested itself repeatedly and in different ways.
The father made his distrust and dislike of the mother very clear to the family report writer who said as follows:
Mr Farrar appeared quite fixated on his belief that Ms. Ramsden is “manipulative, selfish and a liar” and it was challenging at times to redirect his attention to the questions being asked and his focus on the subject child as his discussion would invariably return to his statements about Ms. Ramsden being a liar and him having proof of the same.
The father’s trial affidavit filed on 24 February 2017 is full of harsh criticisms of the mother. The words “manipulation” and “lies” appear repeatedly and examples of the evidence in this vein (paragraph numbers in brackets) are:
Since separation, Ms Ramsden has minimised access for X with her father, and has done this through lies and manipulation. (3)
Ms Ramsden was also always good at impression management and my perception is that she is a pathological liar and manipulator. The examples of her fraudulent activities and manipulations will be discussed in full in further sections.(16)
Although I have concerns about the modelling that Ms Ramsden will provide, and also that she is a liar and manipulator, I believe it is in X’s best interests to still have her mother for an equal amount of time as her father. (58)
Ms Ramsden lied about being in a relationship with [Mr M] and lied to get out of it.[68]
Ms Ramsden has a Workers Compensation claim based on symptoms that started in late 2007 and made liable on a work-related accident from 2004. She has lied to the insurer, her lawyers, in statements, and to doctors in reference to any other accidents or incidents that she had had which may have influenced her neck and back injuries and psychological consequence of these. [69]
A list of further lies and manipulation are too many write within this affidavit. Briefly, some of the other examples include: [the father then goes on to list in great detail further examples of the mother’s lies and manipulation in paragraph 88 of his affidavit].
One section of the father’s affidavit is headed “Ms Ramsden's Plan, Lies and Manipulations Related to this Custody Case.”
The father’s intense dislike of the mother and his entrenched negative beliefs about her resulted in his post-separation communication with her being very unpleasant and the parties repeatedly came into conflict when they tried to reach agreement.
The mother was not initially blameless in the communications. She sent some nasty and accusatory emails about the father. In November 2014 for example she sent an email to a friend which included the following:
Will go to lawyers and make an appointment too, I’m going to make out he’s a sex addict and sex predator, awful I know, but I do always worry about X when she gets older or her friends.[10]
[10] Father’s affidavit annexure K
However the mother quickly moved on from this sort of behaviour; the father did not. He continued to send the mother dictatorial, threatening and unpleasant text messages until at least October 2016.
The mother provided copies of text messages he sent her in January 2015 in which he accused her of killing X’s animals and lying to X about it.[11]
[11] Annexure B to the mother’s affidavit
The tone of messages he sent in March 2016 are accusatory and dictatorial. He says for example:
You will drop her off at 6pm Saturday or the court will know and Mr C is not to turn up! Your dinner is a fake lie as usual and the court will know about that too!
There are other text messages in that exchange in similar tone.[12]
[12] Annexure F
In April 2016 around the time of A’s birth he sent the mother the following message:
[X] should not be in the care of Mr C while you in hospital!!! You are ridiculous!! The court is going to hear about this once again. He is not her father and he slept in the same bed as my daughter and walked naked around her and you know it and you sit there and allow it to happen.
In October 2016 during a dispute about which parent X should be with on the weekend after the school holidays, he sent the mother the following message:
Yet again you are selfish. Can’t wait to expose your true character on the stand in March!! You are just a liar and manipulator, fraud and selfish.
…………..
Selfish you are and March will be fun!!
The father’s anger tainted communication about even minor matters. In a text message on 28 March 2016 he said as follows:
Can you make sure you put the ice pack in with X’s lunch bag so her lunch can remain cool! And it is also noted that you lied about having a dinner on Saturday night. Another one for the court to hear about.[13]
[13] See Annexure “F” of the mother’s affidavit filed on 24 February 2017.
Notwithstanding the content of his communications, the father was adamant when speaking to the family report writer that all the problems in the parties’ communication were the mother’s fault. By implication he asserted that his behaviour was due to the anger she engendered in him by the lies she told and the way she tried to manipulate things. His anger was therefore her fault and his attacks on her understandable.
The submission in the father’s outline of case document filed in March 2017 demonstrated that he continued to accept no responsibility for his behaviour up to the commencement of the trial. He said as follows:
Before separation Ms Ramsden was a poor communicator with me, often yelling and swearing at me and making personal attacks rather than discussing a topic. She removed all emails between us which indicated this. Since separation, the many things that Ms Ramsden has done against me have made it impossible for me to be civil with her, although I tried this for a number of months before realising the vindictive and cruel nature that she was using in the process….[and so on and so on] .
In answer to a question in cross-examination in March 2017 the father said as follows:
The many things Ms Ramsden has done make it impossible for me to be civil to her.
When the hearing resumed on 11 May 2017, the father was at pains to try and convince the court that there was no risk of him maligning the mother during any future communications. He said in oral evidence that the first day of the trial had been a wake-up call for him and that a process of change had begun as a result of him commencing to see Ms L again. He said that he had attended five sessions with her between March and May 2017 and that in his professional opinion as a psychologist five to ten sessions with a psychologist could change people.
When the mother went into the witness box, the father deliberately refrained from cross-examining her about the allegations in his affidavit and he chose not to rely on the affidavits of his parents and friend which contained harsh criticism of the mother.
This could be evidence of the beginning of a process of change it this might also have been a tactical move by the father who belatedly realised after the first day of the trial that relentless criticism and denigration of the mother was counterproductive to his case for equal time.
Ms L said that her sessions with the father focussed heavily on:
Processing his anxiety around the court process, making values based behavioural changes with regard to how he is coping with separation from his daughter and developing emotion regulation strategies to assist him to focus his hurt and anger around what has transpired thus far.[14]
[14] Exhibit G
At its highest Ms L said that the father now recognised that “some of his behaviour post-separation has not been ideal” but she did not explain what she meant by this and it is not the equivalent of saying that the father accepted that he was either wholly or partially at fault in behaving the way he did.
There is nothing in Ms L’s letter to suggest that the father accepts responsibility for his behaviour and nothing to suggest that his opinion of the mother has changed. He agreed during cross-examination that Ms L had not challenged him about his role in the relationship or his contribution to the conflict with the mother
Neither Ms L’s letter nor the father’s evidence on the second day of the trial gives me any confidence that the communication between the parties will remain civil in the future or that the risk of the child being exposed to the father’s negative views of the mother has abated.
The fact that the parents have recently have been able to agree on some minor practical matters about the child without unpleasantness does not alter the fact that they were poor communicators during their relationship with the father blaming the mother for that, and that they have been poor communicators since separation, and the underlying difficulty in their relationship, the father’s belief that the mother is a liar and a manipulator, has not gone away, it has just been papered over. I have no confidence at all that the parties will be able to communicate effectively and without conflict in the future.
A second matter I will mention under this heading is that in final submissions the mother’s counsel suggested that it may be open to the court to find that the father had pursued this case to hearing either wholly or partially to harass the mother, indeed that he had pursued it with malice.
It is not open to me to make such a finding. I am satisfied that the father genuinely believes that he should have as much time with his daughter as the mother has and that this is the motive for his application. He has been extremely unpleasant to the mother in the course of pursuing that goal but I do not accept that he has pursued the matter out of malice or to harass the mother.
The primary considerations are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
The father’s case was that he would not have a “positive meaningful relationship” with X if he only spent 3 nights per fortnight and had one phone call a week with her. He said that he needed more time with his daughter so that he could be involved in helping with homework and providing guidance about right behaviour. He said that he had a sporting background and wished to be involved in her extra-curricular activities including organised sport. He said that he was a talented singer and wished to be involved in X’s musical upbringing.
The tenor of the father’s affidavit was that he was also concerned that the mother’s attitude to him meant that his relationship with X would be undermined unless she spent equal time with him. He said that the mother actively tried to marginalise him in X’s life by pulling her away from him at school events, defaming him to other parents which made it uncomfortable for him to be at the school and deleting him from the school’s emergency contact list at the start of 2015. He said that she coached the child to say bad things about him and actively thwarted communication by distracting the child with other activities during phone calls and disabling Facetime on her phone.
The father complained that the mother had enrolled the child in a school of her choice without consulting him and had taken her to doctors and therapists without consulting him.
The father’s complaints about the speech therapist and choice of school are problematic because these decisions were made when the parties were still together and as for the balance of the complaints, I cannot determine whether there is any truth in them or whether the father is being unduly sensitive or selective in the evidence he presents.
I do not accept that the mother is engaged in a campaign of trying to alienate X from the father and if she is, she is making a poor job of it. The parents have been separated for two and a half years and despite the fraught relationship between them X has a good relationship with her father.
The father did not allege that X was making any comments to him which suggested that the mother was denigrating him to the child and Mr C, who is a separated father himself, has always been reasonable and measured in his interactions with the father and has done nothing to undermine the father’s relationship with X.
The mother referred in her affidavit to things X liked doing with her father namely singing and exploring wildlife on the (omitted) property.
I do not consider that if X continues to spend the current amount of time with the father rather than week about that her relationship with him will be less than meaningful or will dwindle away because of the mother’s actions. The father’s involvement with her will be different and that is something I will have to take into account when coming to an overall decision about the matter but his relationship with her can still be “important, significant and valuable to the child.”[15]
[15] Mazorski & Albright (2007) FamCA 520

There is a risk that X’s relationship with the father could be undermined by his own actions. If he is unable to contain his anger or his views about the mother seep out in his dealings with X, and/or if conflict between the mother and the father over parenting issues surfaces again, X may become resistant to spending time with the father.
The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence.
There is no risk of X being neglected or exposed to family violence in the separate care of either of her parents.
During the trial the father never quite let go of his complaint about the July 2015 incident but he did not allege that there was any risk of the child being abused in the mother’s care as that term is defined in the Family Law Act.
The mother did not allege to the family report writer that the father had been sexually inappropriate with X nor did she use the term “paedophile” and the mother did not at trial run a case that X was at unacceptable risk of harm in the father’s unsupervised care. However it is clear from the following passage in the family report that the mother has some unresolved concerns about her daughter’s safety with the father. The family report writer was not challenged about the accuracy of the following passage in her report:
Ms. Ramsden indicated that she has concerns about Mr Farrar’s ability to set appropriate boundaries and for X to be safe around her father emotionally and psychologically as she develops into a young woman given that a complaint was made to the (omitted) Board in 2005, for engaging in a sexually inappropriate relationship with a young girl. She reported that she is also concerned about the amount of time he spent viewing pornography and continuing to bathe with X and worries that these issues will be ongoing for Mr Farrar and may have a detrimental impact on X’s emotional and psychological well-being.
In addition to this, Ms. Ramsden reported that she was very concerned when she learned that Mr Farrar was sleeping naked with his daughter although she acknowledged that at mediation Mr Farrar indicated that he would wear sleepwear to bed and she believes this to be true. Ms. Ramsden indicated that another concern is that Mr Farrar showers with X and she reported that this is unnecessary and she believes she is at the age where she should be showering independently and learning about privacy with her body. Ms. Ramsden acknowledged that Mr Farrar is likely to have a role in reminding her to wash properly but for him to have an active role in her bathing is unnecessary.
Ms. Ramsden indicated that X had a rash in her vaginal area and that it required a topical cream to clear it up. She reported that she has encouraged X to apply the cream herself as she is a “capable girl” and she had shown her how the cream was to be applied. Ms. Ramsden reported that despite this Mr Farrar has insisted on applying the cream and she feels again that this highlights an unnecessary focus on X’s genital area. Ms. Ramsden was clear in saying that she doesn’t believe that Mr Farrar has physically or sexually harmed the subject child. She did however explain that she considers encouraging greater independence, respecting X’s privacy and her learning to take more responsibility for her private areas given her age would be most appropriate for her given her ability to complete these tasks herself. There is some disagreement from Mr Farrar about X’s competency in this regard, indicating that the rash reoccurring is evidence that the subject child is unable to adequately bathe, dry herself and treat the rash topically. [16]
[16] Family Report paragraph 68-70
I have included this passage in the judgment because of a niggling concern that the issue of whether the father’s behaviour with X is appropriate could flare into life in the future. A fraught and suspicious relationship between parents is fertile ground for that to occur and the risk is heightened because the father is very self-focussed and righteous and refuses to consider doing things such as allowing the child to apply cream to her genital area herself (he said that she could not be trusted to do this until she was 10) or not sharing a bed with her (he said that this was the practice during the marriage and he now slept clothed) which would seem wise self-protective behaviours by the father. However it was not the mother’s case and I do not find that X is at risk of harm in the unsupervised care of her father.

Parental Responsibility

Pursuant to s.61DA of the Family Law Act I am required to apply a presumption that it is in the child’s best interests that the parents have equal shared parental responsibility for her absent a finding that one of the parents or a person living with a parent has engaged in abuse of the child or family violence.
I am not prepared to make a finding that family violence occurred and therefore the presumption applies but it was the mother’s case it would not be in X’s best interests for the parents to share parental responsibility. She said that she was simply unable to deal with the father and that they had already come into conflict over issues to do with X’s medical treatment.
The father sought an order for equal shared parental responsibility. During cross-examination he asked the mother whether the parents had a common view about education, the child’s religious upbringing and the value of the child living close to each parent and asked her to confirm that neither party intended to live overseas or wanted to change the child’s name. After receiving mainly affirmative responses, he pressed the mother to accept that they would be able to agree on major long term issues about X in the future and that therefore an order for equal shared parental responsibility should be made.
Whether the parties share common goals and aspirations for the child or not, they have conspicuously been unable to agree about major issues concerning X to date. They disagreed about whether she needed speech therapy, the father disputed X’s asthma diagnosis[17] and he complained that the mother had enrolled the child in school without proper consultation with him and complained about the number of times she had taken her to the doctor.
[17] Mother’s affidavit paragraph 76
The parties’ disagreement over the need for speech therapy is a marked example of their conflict over health issues. X's GP referred her to a speech pathologist in November 2014. The pathologist formed the view that the child had a mild to moderate speech sound delay and that she would benefit from ongoing therapy to eliminate speech sound errors. Between December 2014 and May 2015 she completed a block of speech therapy.
The father was annoyed/upset about it and he sent an email to the speech therapist asserting that his daughter had no issues with her speech as far as he knew and that treatment was making her anxious. He indicated that he wanted the “treatment” to cease.[18] He was not successful in stopping the speech therapy but at trial he continued to say that speech therapy was unnecessary and was making X anxious. It is another little issue festering unresolved in the background of this matter and it seems to me that X must be aware of the parents differing views about this which alone could make her feel anxious.
[18] Exhibit F 1
There was nothing in the evidence to suggest that the mother had made the wrong decision about speech therapy or that X was being harmed by having it and the father’s complaints about it had more the flavour of him wishing to predominate in decision making than of him being genuinely concerned that his daughter was being treated unnecessarily.
The parties do not have a history of being able to agree about major long term matters and it was the mother’s case that she received angry responses and abuse back from the father when she tried to communicate with him. The email exchanges attached to her affidavit bear that out. When she was asked by the father to explain why she was seeking an order for sole parental responsibility she said as follows:
Every time I’ve tried to discuss things with you I’ve received abuse back. It’s impossible to discuss things with you. You don’t ever listen.
The family report writer found it impossible to prevent the father from pressing unwanted information on her and the mother should not be expected to deal with the kind of behaviour the family report writer described below:
Toward the end of the interview, evidence of a power and control dynamic was again noted, in Mr Farrar cho[o]sing to ignore very clear boundaries implemented by the interviewer. Mr Farrar was insistent that the interviewer view “evidence” that Ms. Ramsden was a “manipulative liar” and he was assured on several occasions that the Court documents and subpoenaed information had been viewed and he was instructed to take any additional paperwork to Court or to his legal representation. Mr Farrar was asked to put the documentation away on 3 occasions. Instead, he knelt beside the interviewer and smiling stated, “no look at them, I’m going to show you anyway”. Mr Farrar began reading out text communication and excerpts from the paperwork and was becoming increasingly agitated and loud talking about not wanting to be a part time dad and the importance of the report. At this point the interview was concluded.[19]
[19] Family Report paragraph 47
The family report writer did not feel that shared parental responsibility would be appropriate. She said as follows:
With respect to the issue of parental responsibility, there are several factors that impact upon the feasibility of equal shared parental responsibility for this family in addition to the issues discussed above. Equal shared parental responsibility requires both parties to be respectful toward another, communicate well and remain child focused. However, the level of conflict evident between the parents, their inability to communicate amicably as well as several areas of unresolved conflict that remain between Mr Farrar and Ms. Ramsden including cross-allegations of emotional and psychological abuse and disagreements regarding boundaries around bathing, sleeping arrangements and Mr C’s presence in X’s life, severely impairs their ability to collaboratively make decisions about the subject child and therefore shared parental responsibility would not be appropriate for this family at this time.[20]
[20] Family Report paragraph 132
The father may now have resolved to try to be civil to the mother in the future, that was his evidence on the second day of hearing, but he accepts no responsibility for past communication difficulties between the parties and he did not retract his view that the mother was a pathological liar and a manipulator. The fact that the parties have been able to agree about the odd thing to do with a change of arrangements for X in recent times does not alter the fact that they have no capacity to discuss and agree on major issues concerning her.
The mother has made good decisions for X in the past. There was nothing other than the father’s view to suggest that the asthma diagnosis was unwarranted or the speech therapy unnecessary. In my view the appropriate order to make is an order that the mother have sole parental responsibility for the child subject to a restraint on her changing the child’s name or relocating the child’s place of residence.

The recommendations in the family report

The family report writer did not recommend equal time and recommended that X continue to live with the mother. She referred to the child’s views and the mother’s calm demeanour and demonstrated empathy for the child as opposed to the father’s angry presentation and lack of empathy for the child.
The family report writer recommended that the existing arrangement for the child to spend time with the father on alternate weekends and for half of the school holidays continue. She pointed out that this allowed most of the changeovers to occur at school and that the more limited time limited the child’s exposure to being questioned by the father and to his lack of empathy for her around making decisions.
The family report writer said that this may need to be reconsidered in the future either by extending or reducing the time. She said as follows:
Given the identified concerns, it is therefore recommended that the current arrangement whereby Mr Farrar spends alternate weekends and half of the school holidays with the subject child continue. However, if the father is unable to contain his anger and negativity and create emotional safety for the subject child, the above recommendation may need to be reconsidered. Alternatively, if Mr Farrar was able to contain his anger and with improved child focus, it may be that increased time with the subject child is considered as she gets older. [21]
[21] Family Report paragraph 135
Recommendations in a family report do not determine a case; the report is simply one piece of evidence and the court has to consider the weight to be given to it in the light of all of the available evidence. However the family report writer did not make factual errors, she came to carefully reasoned conclusions based on the information available to her and the information on which she based her recommendations is similar to the findings I have made. In that situation the recommendations in the report need to be given considerable weight.

Conclusion

There is abundant evidence that it would not be in X’s best interests to live in week about shared care arrangement.
It would be contrary to her wishes and it would separate her from her sister for extended periods of time. The father despises the mother and there is a considerable risk that X would be exposed to an unacceptable degree to the father’s views of the mother, views his parents’ share, if she spent a week at a time with him and this would cause her distress.
There was no evidence that the mother had parenting capacity issues at present. She is a warm and empathic parent who does not denigrate the father to the child and who complies with orders about the child spending time with the father.
I have considerable concerns about the father’s capacity to provide for the child’s emotional needs. I am concerned about his lack of empathy for her and his inability to keep her at the forefront of his decision making even if it means disappointment for him.
The parents have no capacity to communicate effectively or to implement an equal time arrangement without it impacting adversely on X. The emails between them around issues such as changeover location and who can be present at changeover give rise to considerable concern that if the parents had to negotiate small issues such as clothing or shoes left behind or arrangements for the child to attend an excursion they would be unable to do so without one or both feeling hurt and resentful and without the father lashing out.
The father said that he was on the road to change but the fact that he declined to cross-examine the mother to any great extent on the second day of the hearing or to accuse her during cross-examination of the things which are replete throughout his affidavit is simply evidence that he belatedly realised that his case for equal time and his case that the mother was a manipulative pathological liar with mental health issues and an impaired capacity to parent a child did not fit comfortably together and strongly undermined his argument that the parents could co-parent their daughter in an equal time arrangement. They are not evidence that the father has changed his beliefs about the mother.
The father tacitly admitted that his change of position was tactical in closing submissions when he did not resile from his claims about the mother and said that he had not cross-examine her about the allegations because:
If I show Ms Ramsden to be a bad parent how will I co-parent with her?
The father’s anger at being accused as he perceives it of being a paedophile was palpable throughout the hearing indeed it was still palpable during the first half hour of his cross-examination at the resumption of the hearing after he had done the counselling sessions.
The father may have taken some embryonic steps to learn to communicate better with the mother, time will tell and I hope that he succeeds, but the fact that his underlying beliefs about her have not changed does not inspire confidence.
Ms L’s notes suggest that the father’s perception of himself as the victim has not changed as does his assertion during closing submissions that “What I have faced is someone who did not want me to co-parent.” This also does not inspire confidence that the communication between the parties in the future will be civil and productive as opposed to unpleasant and unproductive which would cause stress for the mother and potentially result in X witnessing or becoming aware of unpleasant conflict between her parents.
The fact that during final submissions the father repeated the claim that he was not an angry person gives rise to concern about the prospect of real change in the father because for real change to occur the father needs to see himself as he is.
The risk in this case, as Counsel for the Independent Children’s Lawyer observed, is that the more the parents have to communicate the more conflict there will be. At present I share the view of the Independent Children’s Lawyer that alternate weekends with a pick up and drop off from and to school is the arrangement which is in X’s best interests.
In this scenario the father will be less involved with the child in terms of homework and extra-curricular activities and performing day to day caring tasks but he can still have a meaningful relationship with her and if there is a real change in his attitude and behaviour, perhaps in years to come as the family consultant observed there can be an increase in his time with his daughter.
The father asked me to consider making an order that he spend five nights a fortnight with X if I did not order equal time. This would involve X spending two days of the school fortnight with him and I am concerned that the parents may not be able to manage the communication this would require. I am also not minded to make an order for the father to spend extensive time with X at present given concerns about him talking to the child about the matter and concerns about his attitude to the mother.
The father sought an order that each parent have telephone communication with the child every second night before bed for up to 30 minutes to say goodnight. In my view this is more about his needs than X’s and could easily become burdensome for the child. I prefer the Independent Children’s Lawyer proposal for a phone call once a week.
I have considered the other orders proposed by the father and insofar as they are not reflected in the orders I make it is because I do not consider it in X’s best interests to make them. For example it is not appropriate to make an order requiring the child to attend (omitted) classes but no other religious activities.
The parents agreed that an order should be made permitting international travel and I intend to make such an order as outlined in discussion during the trial save that as the mother proposed that 42 days’ notice of travel be given I will adopt that time. The mother is from (country omitted) and may well wish to travel with the child in the future. Nothing in the evidence suggests that this should be refused because of a fear that the child will not be returned to Australia and it is preferable to make orders which limit the need for the parties to come back to court in the future.
For the above reasons the orders of the court shall be as set out at the beginning of this judgment.

I certify that the preceding two hundred and fourteen (214) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 11 August 2017

[2017] FCCA 1799

11 August 2017

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Procedural Fairness