Ferres & Bellmore
[2023] FedCFamC1F 363
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ferres & Bellmore [2023] FedCFamC1F 363
File number(s): BRC 7266 of 2012 Judgment of: HOWARD J Date of judgment: 6 March 2023 Catchwords: FAMILY LAW – PARENTING – Parents unable to communicate – Wishes of the 12 year old child – Best interests of the child. Legislation: Family Law Act1975 (Cth) ss 60CA, 60CC, 61DA, 65DAC, 102NA
Evidence Act 1995 (Cth) s 140
Cases cited: Baghti & Baghti & Ors [2015] FamCAFC 71
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67
Eagle & Scarlett (No.2) [2020] FamCAFC 291
Rice & Asplund (1979) FLC 90–725
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 58 Date of hearing: 13 – 15 February 2023, 6 March 2023 Place: Brisbane Counsel for the Applicant: Ms Marshall Solicitor for the Applicant: Northside Family Law Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Mr McGregor Solicitor for the Independent Children’s Lawyer: Wallace Perkins Family Law ORDERS
BRC 7266 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FERRES
Applicant
AND: MR BELLMORE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOWARD J
DATE OF ORDER:
6 MARCH 2023
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the child X born 2011 (“the child”) live with the mother.
2.That the child spend time with the father at all times as agreed between the parties and failing agreement, the child shall spend time with the father each alternate weekend from after school Friday until before school Monday.
3.That this matter be listed for mention at 10.00am on 10 May 2023 for the parties to make submissions as to the wording of the final orders to reflect the reasons for judgment.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ferres & Bellmore has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOWARD J
A. These reasons were delivered ex tempore on 6 March 2023 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The child X was born in 2011. X is the child of the applicant mother, Ms Ferres, and the respondent father, Mr Bellmore. The mother was born in 1987. The father was born in 1976. The parties commenced a relationship in 2009. The parties separated on 1 January 2012. In a parenting case such as this, the Court is required to have careful regard to the provisions of the Family Law Act1975 (Cth) (“the Act”), in particular, Part VII of the Act. In Part VII of the Act, the Parliament has included s 60CA, which makes clear that 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.
Section 60CC of the Act then sets out how it is that a court is to determine what is in a child’s best interests. Section 60CC(2) and s 60CC(2A) state:
(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).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I have had the benefit of observing the father and the mother give evidence in the witness box over the course of three and a half days – 13, 14 and 15 February 2023, and again today, 6 March 2023.
I have come to the conclusion that there are great benefits to young X in having a meaningful relationship with both of his parents. My view is that he already has a meaningful relationship with his mother and his father. The mother is a quietly-spoken person. The father is more direct in his manner – some might even say abrupt, but nonetheless, the conclusion that I have drawn is that both parents, the father and the mother, have a lot to offer X. These parents, as will be seen, have themselves been involved in litigation and conflict for a very long period of time. Proceedings first commenced more than eight years ago.
In 2015, the matter got to its first final hearing – that is to say, a trial, before her Honour Judge Purdon‑Sully, sitting in the Federal Circuit Court of Australia.[1] After approximately a day and a half, the trial settled. The parents reached an agreement and her Honour made consent orders on 13 February 2015 – which provided for equal shared parental responsibility and for X to live primarily with the mother, but to spend five nights a fortnight with the father. So a nine‑five arrangement was agreed, and that operated, substantially, right up until the present. Much has changed since February 2015. At that point in time the child was only four years old. X is now 12 years old. That, in itself, amounts to a significant change in circumstances (note Rice & Asplund (1979) FLC 90–725).
[1] As it was then known.
Underlying this case are a number of serious matters for the Court to consider. The child has been diagnosed with anxiety. The child has been diagnosed by Ms B, with a generalised anxiety disorder, as per the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. That is in paragraph 5.4 of Ms B’s report. There is the evidence, also, of Dr C. Dr C points out that young X was diagnosed with a specific learning disorder, and Dr C’s report is dated 6 October 2020. The net result is – a specific learning disorder combined with the anxiety – and I do note that Dr C herself talks about the anxiety and notes the anxious presentation.
What seems to be underlying this issue is the continued dispute between the parents. It seems to me that the learning disability has caused some issues, particularly in the household of the father. Now, I am very cautious here. I am not going to be unduly critical of the father for his approach in relation to the boy’s homework, for instance. The father is, to put it mildly, sceptical in relation to these diagnoses. The father’s view in relation to school and learning is that he was the same as X. Well, of course, it may well be that the father himself had a learning issue that was not diagnosed. When it comes to things like X’s homework, the father takes a different approach.
The problem seems to be that this causes the boy some upset. It causes him anxiety. That seems to be one of the main issues, and it certainly was, so far as Ms E was concerned, that the time the father spends dealing with the boy in relation to the boy’s homework and the boy’s schooling issues is a source of significant concern for the child, even though he may not express this to his father, and this is where I think there has been an underlying issue. The father says, “In my household, he does not seem to be anxious. I do not have that impression at all.” And that may be the case. It may be he is a very good actor. It may be he is embarrassed about it. It may be he does not feel, for one reason or another, that he is able to talk to his dad about it.
All of those things may be true, and I have the distinct impression that I have accurately described what is going on. But nonetheless, what we do know, and it is apparent, from what the boy tells Ms B; it is apparent from even the report of Dr C, to a lesser degree; it is apparent from what the boy told the family report-writer – that he, X, is suffering from some anxieties in relation to spending time at his dad’s. One of the issues I need to consider is the need to protect the child from psychological harm caused by these interactions with Dad when it comes to things like homework because of the different attitude the father has to the mother in relation to the issue of the boy’s anxiety and the boy’s learning ability or disability.
SECTION 60CC(3)
Section 60CC(3) sets out the additional considerations for the Court to consider. The views expressed by the child are important factors, especially as he gets older (s 60CC(3)(a)). He is now 12. We know that he has told Ms E that he would like to do weekend times with his dad. We know that he told the father himself late last year that he would like to spend weekend time with his dad. The father clarified this when I asked him. It is alternate weekends.
So we know that the boy’s wishes, as expressed not only to Ms E but to the father himself as recently as late last year, the views expressed are consistent. The father was a bit worried that the boy did not say anything at the time when he asked him about it, but said, “I will think about it.” Then, when he was on the telephone, he told the father his views. I do not think that in any way reduces the impact of what the boy had to say. It is consistent with what he told Ms E. I am not satisfied, for instance, that his position was unduly or in any way influenced by the mother.
I do not think there is any escaping the conclusion, on the evidence of Dr C and Ms B, that the boy suffers from anxiety. I think that, as I said earlier, this issue of the homework and the school and the study has a lot to do with it, and the father’s different approach to those issues. Now, the wishes of the child have to be given significant weight in a case like this. He is 12 years old. Obviously when children are younger, the Court would give less weight to the expressed wishes. But, as they get older, the Court really has to pay close regard to what a child says that he wants to do.
Next, I will look at s 60CC(3)(b) – the nature of the relationship of the child with each of the parents. Now, I have already touched on all of this, certainly in relation to the parents. My view is that X has a good, close and loving relationship with his mother and with his father. Certainly, it is a different relationship. It always is. Even in an intact family, a child’s relationship with one parent, his mum, is going to be necessarily different to his relationship with his dad. Not worse or better; just different.
As to other important people involved in the life of this boy, I heard from Mr Bellmore’s wife. I have no doubt that X has a good relationship with her. And from what I have read, there is no reason to doubt that X has a good relationship with his step–father as well. There is, of course, the question of X’s young siblings. The mother has a four year old, D, and a one year old, F, and all the evidence suggests that he has a good relationship with those little ones as well.
As to section 60CC(3)(c) – each parent has taken every opportunity they can to spend time with and communicate with the child. In relation to taking opportunities about major long–term issues, I think they have both wanted to participate in making those decisions. I have got no doubt about it. One of the problems in this case is that the mother and the father are on a completely different page when it comes to certain major long–term issues, in particular, in relation to health. Now, this will become more important when I turn to the question of parental responsibility later in these reasons.
As to s 60CC(3)(ca), my view is that the parents have, by and large, fulfilled their obligations to maintain the child. As I understand the evidence, the father is up to date with child support. I did not recall any evidence to the contrary. The mother says that the father has not been willing to contribute to various costs of health issues. I presume that relates to the out of pocket expenses in that regard. This gets back to the fundamental issue that these parents have on the health point. The father does not agree with the mother in relation to the health issues, and I infer from that that he has taken the view that, in those circumstances, it is not appropriate to, I suppose in his way of thinking, encourage the mother to keep pursuing these appointments. That was the way the father, really, phrased it, which I think, frankly, is unfair to the mother. She has on her hands a young man who is showing signs of anxiety.
If ever a court needed direct evidence of a young man who is showing signs of anxiety, we had the recordings from the PlayStation. Rarely does a judge get the insight that I have been able to get by listening to a child, then 11 years old, now 12 years old. Those recordings were done, I understand, within the last year or two. I heard a child who sounded anxious. He sounded worried and concerned. Listening to that child on the tape, I am sure that everyone in the courtroom would agree that it is a matter of concern.
Here he is, to the father and his wife and all the world, apparently, when spending time with dad, he presents as happy, content, playful. His friends come around on occasions. He and his dad do plenty of things together. And yet he is up in his bedroom on the PlayStation communicating with the mother in a worrying way – indicating a child who is not at peace with himself. Let us face it: that is the distinct impression I had was that this little boy – I called him a young man before, but he is really still a boy – he is not at peace with himself.
What would be much better is if there was none of that; if he was playing marbles and eating peanuts with his mates and kicking the football around. But this anxious conduct of communicating with the mother from the bedroom is a worry, and it does indicate to me that something is amiss, and it certainly strengthens, in my own mind, the correctness of the diagnosis in relation to anxiety that were made by Ms B and referred to, at least in relation to anxiety, by Dr C as well.
I would note too at this point, I have had close regard to the evidence from Ms H from the G Clinic, the psychotherapist who specialised in constipation issues. It seems to me another direct product, as it were, of the stress this boy is suffering, the anxiety that he suffers, obviously was, at one stage, manifesting itself in constipation issues.
Section 60CC(3)(d) talks about the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from, and then it says either of the parents or another child. The overwhelming evidence (in particular the boy’s stated wishes and the recommendations of Ms E) is that any move to increase the time with the father would be contrary to the boy’s best interests. Even leaving it as it is, that is, the five nights a fortnight with dad, would be a cause of upset for the boy. He stated very clearly what he wants to do. He is now 12 years old. He has told his father what he wants to do. He has told Ms E what he wants to do. The best evidence that we have is the independent evidence from Ms E and from the other experts, but, in particular, Ms E. The view that she has formed is that a reduction in the time with the father is in the boy’s best interests.
As to any practical difficulties and expenses – the parents live quite close to each other. It is not really an issue in this case. As to the capacity of the parents, they both have the capacity to provide for the needs of this child, subject to the following comments that I am about to make. I said at the outset, and it was by no means a criticism of Mr Bellmore, but he does have a direct and rather abrupt presentation and personality. There are many people in the world like Mr Bellmore, and I do not criticise you, sir, for one moment. That is the way God made you. The mother, on the other hand, is a quietly spoken person – altogether of a different personality type to the father.
Dad has taken a particular view in relation to certain issues relating to the child and his upbringing, notably, the question of whether the boy is, in fact, suffering from anxiety, the question of whether the boy has a learning disability, and, if he has either of those, what should be done about it, if anything at all. For instance, the father is not – as Mr McGregor rightly pointed out – enamoured of counsellors. The father does not think that the counselling with Ms B has been beneficial to the boy. In fact, the father’s view is the contrary. The father thinks that Ms B has been positively unhelpful to the child in relation to the extent of and the kind of counselling. I do not believe that there is evidence to support the father’s view in that regard, and I would accept that Ms B, as a professional, has only ever been addressing the issues as presented to her when the child comes into her consulting rooms.
I think, because the father does not accept certain issues, that it makes it difficult for him to respond in a way that might be needed by this young boy. The boy has two parents – one is more sensitive than the other. Not a criticism of either – by the way. One is simply more sensitive than the other. The child seems to be throwing more to his mother in his personality. However, having said that, it makes it a bit more difficult for the dad, then, in dealing with him in a way that is going to make the boy feel relaxed and comfortable.
Now, I only make these comments because it forms part of the evidence, and it is important, I think, in a case like this – and, frankly, very helpful – to deliver reasons ex tempore, because I can deliver them in a way that the parents can hear what I have got to say. You can both see that I am not being critical of either of you. What we are all here for, and especially the mother and the father, is X’s best interests. I absolutely accept that the father sees X’s best interests will be better served if he maintains his time with his father, the five-nine. I also accept that the mother sees X’s interests will be best protected if the time gets reduced with the father.
In relation to s 60CC(3)(f), I am not entirely satisfied that Dad has the capacity to deal with the emotional needs of the young boy at this stage, noting the other evidence. That is all I would say on the point.
Section 60CC(3)(g) talks about the maturity of the boy. I have made reference to that, in particular, because of his age and his stated wishes. And there is also, of course, the characteristics of the child. I am taking that into account. Because of the learning disability, because of the fact that he is suffering from this anxiety, these are all factors I must take into account in reaching the orders which are in his best interests.
As to the attitude to the child and the responsibilities of parenthood – this is s 60CC(3)(i) – I think both parents have, in their own way, a very good attitude towards the child, and they have accepted the responsibilities of parenthood. The truth of the matter is they are not in an easy position. As to the attitude to the child, the way the mother sees the world and sees the child, she is addressing the child and her attitude towards the child is perfectly appropriate. The way the boy presents to his father and the way the father sees the world, his attitude towards the child is perfectly appropriate also.
Having said that, of course, I would pause and make the following note, and I ask Mr Bellmore to take this in the spirit that it is intended, which is to look to the future, a way to move forward to improve his relationship with young X. Now, young X definitely has these issues in relation to the learning disability, and whilst in years gone by, in generations gone by, it was perfectly acceptable to say, “Do not worry about the kid; the kid is just like me and I turned out fine”. Nowadays, parents have more expert tools available to them. So if some diagnosis is made, then to the extent that the father might need to educate himself to find out, “What is the best way to approach X if he has got a learning disability; what is the best way to approach X if, in fact, he does have this anxiety and I might make him a bit nervous, even though I do not detect it”. There are ways to dig deeper.
I am not going to make any orders about it. It is entirely a matter for the father to look into it and see if he can come up with some things that will help him, because these are parenting orders that I am going to make today which are suitable for this boy at the age of 12, but, as with most of these orders, these are going to be framed in terms of “as agreed between the parents and, failing agreement, as follows”. And often, as children get older, they change their views about what they want to do and they vote with their feet, and it may be as he gets older, he wants to spend more time with the father, but I do not know that; no one knows that. The father does not know it, the mother does not know it and I will bet X does not know it. All he knows at this stage is, “I would like to reduce my time with Dad and make it weekends.” So I have just made some comments about things that the father might consider in relation to improving his relationship with X by obtaining for himself strategies.
The next subsections are s 60CC(3)(j) and s 60CC(3)(k) and relate to family violence. I know there was a s 102NA order that was made, and the father, for his own reasons, decided not to avail himself of a lawyer. As to the family violence alleged, as I said during argument earlier, it is historical in nature but, nonetheless, it has been detailed in the written submissions on behalf of the mother, and the mother has provided in her trial affidavit some evidence of it, although not detailed allegations in terms of what was said to whom and when. It seems there was an earlier separation initially in 2011 that the mother says was due to domestic violence. Queensland Police apparently were involved in obtaining an order. In any event, the parents got back together, from what I can see, in October 2011, but then on New Year’s Eve there was what the mother has clearly described as a serious domestic violence incident.
In paragraph 65 and thereabouts in the mother’s trial affidavit, I note that the mother says that the domestic violence led to an assault on New Year’s Eve that year. This, of course, is an extremely serious allegation, and I note the following. There are no precise details of what it is said occurred. I am extremely mindful of a number of things. Firstly, the fact that the father was not cross-examined about this. Secondly, the father, because he was self-represented, was not able to cross-examine the mother, noting the s 102NA order. So there was no way the father could put to the mother his version of events. So the Court has not had the benefit of oral testimony from either the mother or the father in relation to the issue.
Now, I am aware that it has been raised in the affidavit. I am aware of a view that has been around for a while that in family law proceedings, if something is included in an affidavit, then the exception to the rule in Browne v Dunn (1893) 6 R 67 can operate – and there is no need to specifically put one’s case to the other side. But when there is such a serious allegation as this made, my view is that, in fact, if it is going to be pursued and a party is seeking a finding by the Court on it – it should be put. That would have been problematic anyway because of the inability of the father to cross–examine the mother, so I would only have heard one side, but in any event, for the reasons that I have stated, the fact that I did not hear from either parent in the witness box on it, I have not had a chance to consider them give evidence on the issue. There are no detailed particulars of precisely what occurred, rather, a conclusion, that is to say, that it was an assault. As far as I am aware, there was no charge laid.
This Court, in proceedings of this kind, is not required to make findings on every matter that is in issue between the parties. Ordinarily, with such a significant issue as an allegation of assault, then the Court would attempt to make a finding one way or the other. The Court would, of course, have to have close regard to s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) and the decision of Briginshaw v Briginshaw (1938) 60 CLR 336, which, of course, still forms part of the law, even though the Evidence Act is in existence. I am still required to consider what was decided under the common law. There is no way on the evidence before me that I am in a position to make any finding about that allegation of assault to the requisite standard.
As to the other allegations of family violence, I find myself in a rather similar position because of the non-cross-examination by the father of the mother and the fact that certain things were not put. Now, I say once again it is not required that this Court make a decision in relation to every outstanding issue between the parties. In this regard, I would note the following important cases which set down these principles. In Baghti & Baghti & Ors [2015] FamCAFC 71, the Full Court of the Family Court noted at [63]:
... that a court is not required to make findings in relation to all of the facts put in issue by the parties. A court need only determine those facts that are necessary for the determination of the issues between the parties.
This, of course, is a theme that draws upon what was said many years previous by the High Court in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [63] – where three of the judges said that a judge’s reasons are not required to mention every fact or argument relied on by the parties. This was taken up more recently by the Full Court of this Court in Eagle & Scarlett (No.2) [2020] FamCAFC 291 at [103].
Now, as to s 60CC(3)(l), whether it is preferable to make a particular order – that is to say, the one least likely to lead to the institution of further proceedings. I would have to say that unless I make an order that reduces the time with the father, I would have to say that it is more likely these people will be – that is to say, the parents, will be back in court at some stage in the not too distant future. Section 60CC(3)(m) talks about any other fact or circumstance the Court thinks is relevant. Mr McGregor helpfully took the Court through various aspects of the report of Ms E. Ms E, I find, was an impressive witness. She has seen this family on several occasions. She has written more than one report.
The view that she has formed is that young X’s best interests will be served by reducing the time with his dad during term time, so that he lives with his mum until Friday afternoon in the alternate weeks, and then stays with his father until the Monday morning. Now, my view is that this is the correct approach. I know that the mother would prefer if X went back to her, to the mum, at about 6.00 or 6.30pm on a Sunday night. I understand that. But there are a number of issues here. Firstly, pick up from school and take back to school on the Monday, means that the parents do not have to get involved in a changeover. Ms E described this family situation between the parents as one of “high conflict”. She is correct.
Avoiding changeovers between mother and father is a good outcome for X. I also agree with the submissions made by Mr McGregor for the ICL on this point. Alternate weekends structured in that way mean that young X, whilst his time with his father is being reduced, will nonetheless, each alternate weekend, have a full Saturday and a full Sunday with his father. This will allow the father to take the boy away on the weekend, if that is what he wishes to do. To the extent that any of Ms E’s reports are not currently marked as exhibits, they will be.
In particular, I note the following paragraphs from Ms E’s most recent Report dated 1 July 2022:
78. [Mr Bellmore's] proposal of [X] changing residency to him is not in [X's] best interests. It is not a child-focussed decision. It would require of [X] to be removed from the person and people he feels safest with. Information provided by [X] gave the impression of his mother and his home environment with her as being warm, collegial, empathetic and understanding. It was my sense based on [X's] narrative that his mother most likely adopted an authoritative parenting approach, which is thought to be the most conducive to children achieving positive outcomes in the future.
79. An authoritative parenting approach is balanced. It is emotionally warm and sensitive, yet firm and assertive when necessary. It is flexible, but has age‑appropriate boundaries. It is predictable, consistent and safe.
80. A change of residency to the father, regardless of the risk he might pose to [X's] emotional wellbeing, would likely be anxiety-invoking. [X] has always primarily lived with his mother. He has two younger siblings that I get the sense he is close to, and enjoys spending time with, based on [X's] comments about why he prefers being in his mother's care. A change of residency to his father would therefore be a significant change, and test [X's] resilience and coping, which to reiterate, appears to already be strained.
...
83. With all this in mind, it is thus my assessment that [X] remain living with his mother and spend no more than each alternate weekend (Friday to Monday) with his father, plus reduced block time on the school holidays. This regime will also reduce the pressure on the co-parenting relationship, requiring less need for the parents to communicate about [X] and co-operate in order for it be successful, and thus reduce the scope for [X] to be exposed to parental conflict.
...
RECOMMENDATIONS
86. It is my recommendation that [X] lives with his mother and spends each alternate weekend (Friday to Monday) with his father, plus no more than five nights on each of the two week holidays, and the same of each alternate week of the Christmas holidays.
I accept Ms E’s evidence and I accept her recommendation in relation to the living arrangements for X.
Further, in relation to s 60CC(3)(m) – I note the evidence about when the boy has been spending time at Dad’s about the communication via the PlayStation. I have to say that I do not think this is a good idea, and I actually do not think anyone thinks it’s a good idea. I am quite sure the mother doesn’t think it is a good idea. I am sure the father does not think it’s a good idea. I have not found anyone who does think it is a good idea.
Also, I note that there has been the beeping of the horn apparently because – I apprehend that the boy urges this – it apparently gives him some comfort. But I think something has to happen about this. I do not think it can continue at all. If you have to tell the boy, “The judge says you are not allowed to do it,” well, do it, all right? And I will hear from Mr McGregor about that as well. Because when the boy is with his father, I do not want him upstairs in his bedroom communicating in the way that he has been.
If he is with his father then he should be spending time with his father: watching TV with his father; playing a computer game; watching the cricket or the basketball; or going for a walk or a bike ride or going to the movies. It is important, it seems to me, to keep the child away from the PlayStation communication. It cannot be good for him.
THE SCHOOL
As to the question of the school, I think he should stay at J School for a number of reasons. He has been at J School since he was a little fellow, since he was in Prep. He has been there right the way through. He has got established roots in the school. He has got friendships. We know he has got friendships. He seems to be a good fellow at getting friends. X’s friends go to the mother’s place. X’s friends go to the father’s place. X’s friends attend his birthday parties. The parents know the friends. It would be a real wrench if this boy was taken out of J School and enrolled at K School. I understand the fathers’ concern about the schooling. He can see that the boy is not getting good school marks. The father wants to do the best that he can for X and he would like to see X improve his school results. So I am not critical of the father in relation to his hope to move the boy from J School to K School. But I do think the boy has been through a lot. The parents separated when he was very little. There has been conflict for a long time. He is in a situation where he already has a learning disability and he suffers from anxiety. I just think that moving him from his school environment that he is familiar with is not a good idea for him. It is just one more thing that could cause him upset. And he does not need it. If he can stay settled as he is at J School, then he should do it.
PARENTAL RESPONSIBILITY
As to the question of parental responsibility, there is, of course, the presumption of equal shared parental responsibility in s 61DA. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child (s 61DA(4)).
As I said earlier, these parents, by and large, on some of the important matters concerning X, are not on the same page. In particular relating to the boy’s anxiety diagnosis, but also in relation to the learning disability and how to approach it. The mother has sought to address the anxiety issue by, reasonably, taking the boy to see a psychologist – and that is Ms B; and as necessary – to the G Clinic when he had the constipation; then to Dr C. The father, I note, did communicate with Dr C, and she seemed quite relaxed about that situation. The father has not communicated with Ms B. If I can put it this way, he has not really wanted to engage with that whole psychological counselling issue.
To summarise my conclusions reached; the mother seems more attuned to and much more likely to engage with these medical practitioners. The mother is on top of all of these issues. On the other hand, the father, for whatever reason, has not engaged in the same way that the mother has. These parents, as I say, on these important issues are not on the same page. These parents have been involved in a conflictual situation for quite some time. The father’s view is – there is no conflict. The father says that if there was a terrible email (for example) then someone would surely have shown that to the Court. But what needs to be kept in mind – is the submission that was made on behalf of the ICL – and it is an important submission – because before the Court can make an order for equal shared parental responsibility – there must be evidence to satisfy the Court that the parents are able to consult each other in a reasonable manner – especially in relation to the important issues pertaining to the child. Section 65DAC(3) applies if two or more persons are going to share parental responsibility in relation to a child. The order is taken to require each of those persons to consult the other person in relation to the decision to be made about that issue, and to make a genuine effort to come to a joint decision about that issue.
This question of communication – or the ability of these parents to communicate in a really meaningful way – has to be addressed head-on by the Court. These parents do not have the ability to communicate in any truly meaningful way. For whatever reason, for these past 10 years, these parents have been in conflict and to leave a situation in place of shared parental responsibility is to leave these parents in a position where they would be set up to fail. It is not going to work. It has not worked in the past. The parents do not see eye to eye on the big issues relating to X – in particular, health and education.
The father urges the Court for an order of equal shared parental responsibility. The mother urges sole parental responsibility. The ICL has submitted sole parental responsibility in favour of the mother. In the case of a child like X, the only really important issues here relate to his health needs and his education. The view that have formed is because of s 65DAC(3) and because of the findings that I have made about that I have made about the inability of the parents to communicate in any meaningful way – I think that the submission from the ICL has to be correct. It really has to be a case of sole parental responsibility to the mother, but the mother will be required to consult with the father and try to reach an agreed position on every major long-term decision issue, but if they cannot agree – the mother will have the final say.
This will do a number of things. It will reduce conflict between the parents. There will be a better outcome for X. Such an order will reduce the need for the parents to communicate. It addresses the fact that the parents, as I said earlier, have simply not been on the same page in relation to this child.
I accept that it is a very major step for a Court to take parental responsibility away from a parent, and the father, I fully understand, will not be happy with this decision. I understand that. It is a difficult decision to make. It is no doubt a difficult decision for the father to hear. There is no doubt about that, but at the end of the day, I would urge the parents to look at it this way. If the Court, by the making of orders, can reduce the chances of conflict and disagreement between the parents, that is a good outcome for X. I am sure the parents will agree with that. I would add, in closing on this point, that my earlier reasons mentioned the difference in their personalities – that seems to me to be another reason why these parents have not been able to communicate well.
I would note further (at this point) because it is appropriate to do so, that the recommendation that there be a reduction in the father's time – was said by Ms E to be partly driven by the fact that such a reduction will mean there is less reason for these parents to communicate. When the father’s time with the child is reduced – the need to communicate between the parents is reduced. Similarly, the converse is true. If time is going to be increased, the parents need to have an ability to communicate in a meaningful way. This is the effect of the evidence of Ms E.
I noted the issue about the young boy referring to his father as “Mr Bellmore”. I think Ms E is correct, it is all about context. The important point – the way I see it – is that when the boy is with his father he calls him “Dad”. I have had a very good opportunity to listen to these parents give their evidence and to listen to their arguments, and the father, although he was not represented, was very well able to get across the Court his views and his arguments on behalf of young X. As I said earlier, I absolutely accept that the father has X’s best interests at heart. There is no question about that. The mother, also, has X’s best interests at heart.
TERM TIME
So the term time will be as I have said. After school Friday he goes with dad each alternate weekend, then he goes back to school on the Monday morning from dad’s house.
HOLIDAY TIME
As to the holiday time, I did not consider that the evidence of Ms E was particularly proscriptive and I think that the submissions made by Mr McGregor on behalf the ICL are persuasive. I will talk, first of all, about the Christmas holidays, that is the part I find persuasive in the submission on behalf of the ICL. It should be seven nights with dad, seven nights with mum – week about.
So week about on the long (Christmas) holiday and I think that the point made is a good one on behalf of the ICL, that is to say the evidence on the anxiety issue is linked very much to the matters that come up between the father and the child when it is school term time – homework, assignments, how they are going to be approached, what is a good enough standard. A lot of the issues that young X has relate to this question of homework and school, that is, when talking about the time at his father’s house, but during the long holidays in Christmas, these issues disappear.
During the other school holidays through the year, I think the five-nine arrangement is appropriate because of the shorter timeframe that is being looked at. It is a two-week block of holidays, five nights with the father, nine nights with the mother, and as to whether they alternate that, I am not sure, but I do not need to worry about that at the minute because what I am going to ask of the ICL is that – having regard to these reasons for judgment, that a draft order be prepared and emailed to the Court and to the parties, reflecting the reasons and the orders will be made.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 22 May 2023
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