Fraser and Farwell
[2012] FMCAfam 1088
•12 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FRASER & FARWELL | [2012] FMCAfam 1088 |
| FAMILY LAW – Parenting orders – best interests of a child in primary school where parents have never resided together but child has spent substantial and significant time and lived with both – family consultant refers to ‘parentification’ of child – application of father filed in circumstances where child’s primary schooling could not be agreed. |
| Family Law Act 1975 (Cth), ss.60CC, 117 |
| Applicant: | MR FRASER |
| First Respondent: | MS FARWELL |
| File Number: | SYC 7427 of 2008 |
| Judgment of: | Hartnett FM |
| Hearing dates: | 20, 21 & 23 August 2012 |
| Hearing at: | Sydney |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gillies |
| Solicitors for the Applicant: | Rossi Simicic Lawyers |
| The First Respondent: | In person |
| Counsel for the Independent Children’s Lawyer | Ms Karagiannis |
| Solicitors for the Independent Children’s Lawyer | Legal Aid New South Wales |
THE COURT ORDERS THAT:
Subject to orders 2 to 7 herein the parties shall have equal shared parental responsibility for the child [X] born [in] 2005.
Unless:
(a)otherwise agreed in writing between the parties; or
(b)the father procures a placement for [X] into a private school and provided that he is responsible for the costs connected with that attendance,
[X] shall continue to be enrolled in and attend at [N] School until the conclusion of Year 6.
Prior to the father making the final decision in relation to a ‘private school’ (as referred to in order 2(b) herein) he is to consult with the mother and ascertain her view in relation to the proposed school. Consultation however shall not preclude the father from exercising sole parental responsibility in respect of [X]’s education and selection of school.
For the purposes of selecting the school that [X] shall attend in secondary school the father shall be responsible for the selection of that school provided that:
(a)it is a selective school; or
(b)it is a private school for which he will be responsible for the costs connected with [X]’s attendance.
Prior to the father selecting a secondary school for [X], he shall:
(a)consult with the mother and ascertain her views as to the appropriate school for [X]; and
(b)ascertain [X]’s view, if any, as to which secondary school she wishes to attend.
Nothing in order 5 herein shall preclude the father from exercising sole parental responsibility in respect of [X]’s education and selection of school save [X] is not to become a boarder in any school.
In the event that the secondary school selected by the father does not fall within orders 4(a) or 4(b) herein [X] shall attend the public high school closest to the father’s home unless otherwise agreed in writing between the parties.
Other than as provided for in these orders [X] shall live with the father.
[X] shall live with the mother at the following times:
(a)until the conclusion of Year 5:
DURING SCHOOL TERM
(i)in a four week cycle and commencing on the first weekend of each term, for the first three weekends in that cycle from 6.00pm on Friday until 6.30pm on Sunday or 7.30pm during daylight saving hours (or Monday in the event of a long weekend); and
(ii)on the Thursday immediately following the third Sunday in this cycle from the conclusion of school until the commencement of school the following day, subject to the mother residing in the Sydney metropolitan area.
(b)from the commencement of Year 6:
DURING SCHOOL TERM
(i)each alternate weekend commencing on the first Friday of each term from 6.00pm until 6.30pm on Sunday or 7.30pm during daylight saving hours (or Monday in the event of a long weekend); and
(ii)on the Thursday of the following week and each second Thursday thereafter from the conclusion of school until the commencement of school on the following day, subject to the mother residing in the Sydney metropolitan area.
The father or his nominee is to collect [X] from the mother’s home for the purposes of the time referred to in 9(a)(ii) and 9(b)(ii) in order to transport [X] to school and the father or his nominee shall collect [X] from the mother’s home at the conclusion of the time referred to in paragraphs 9(a)(i) and 9(b)(i). The mother or her nominee is to collect [X] from school on each Thursday and Friday as provided for in these orders.
In addition to those times as set out in order 9 herein, [X] shall live with the mother at the following times and her transportation is to be shared equally by the parties to and from each of their homes:
(a)from 6.00pm on the Saturday immediately prior to Mother’s Day until 6.00pm on Mother’s Day;
(b)each alternate Christmas Day period commencing Christmas Eve at 5.00pm on 24 December 2013 until 10.00am on 26 December 2013 and each alternate year thereafter;
(c)for one half of each school term holiday period including the December to January school holiday but subject to order 11(b) above;
(i)in 2012 and each alternate year thereafter, for the first half; and
(ii)in 2013 and each alternate year thereafter, for the second half.
The parties can alter these halves by written agreement to align the period with the Christmas Day period as set out in order 11(b) above if they so desire but only by agreement.
(d)on [X]’s birthday;
(i)if it falls on a weekday, from 5.00pm to 7.00pm; and
(ii)if it falls on a weekend or during the school holiday period when [X] is not in her care, from 10.00am to 2.00pm.
(e)for such other and further times as may be agreed in writing.
The mother’s time with [X] is suspended:
(a)from 6.00pm on the Saturday immediately prior to Father’s Day until 6.00pm on Father’s Day; and
(b)on [X]’s birthday if it falls on a weekend or during the school holiday period when [X] is in her care, from 10.00am to 2.00pm.
Both parties are restrained (by consent) from causing [X] to be known by any other name other than ‘[X]’.
Both parties are at liberty to travel outside the Commonwealth of Australia with [X] provided that:
(a)no less than 60 days prior to the date of the proposed travel they provide to the other parent an itinerary of the proposed travel, copies of the flight itinerary, and the address and telephone number of any place that [X] will be staying during her time away;
(b)they do not cause [X] to be absent from school without the express written consent of the other parent for more than seven days;
(c)the period that [X] is to be absent from the Commonwealth does not exceed a period of three weeks in total for any journey that is commenced prior to [X]’s 10th birthday or four weeks in total for any journey that is commenced subsequent to [X]’s 10th birthday, unless otherwise agreed between the parties in writing;
(d)no less than 60 days prior to travel they propose a regime of make up time to the parent that is not travelling with [X]; and
(e)the parent taking [X] on holiday shall ensure that she has regular telephonic and/or electronic communication with the other parent.
In the event that the parties cannot agree on make up time for any period where a parent avails himself or herself of order 14 herein the parent with whom [X] is not travelling shall receive make up time over the school holiday periods subsequent to the travel period up to the total amount of nights that [X] was absent from Australia during periods that she would otherwise have been in their care, pursuant to these orders.
Subject to orders 17 and 18 herein the father shall hold [X]’s passport. Further:
(a)each party shall sign any document required to effect a renewal of a passport for [X] within seven days of any request to do so;
(b)in the event of either party refusing to sign any such document a Registrar of the Court shall sign such document pursuant to s.106A of the Family Law Act 1975; and
(c)each parent shall facilitate [X] receiving all necessary vaccinations which may be required to facilitate [X]’s travel to a particular destination.
In the event that the mother proposes availing herself of the time outlined in order 14 herein the father will provide her with [X]’s passport no less than 28 days prior to the proposed date of travel.
The mother shall ensure that she returns [X]’s passport to the father within seven days of [X]’s return to the Commonwealth of Australia.
The parties shall keep each other informed, at all times and in writing of the following:
(a)their residential address;
(b)their land line telephone number, if they have one;
(c)their mobile telephone number; and
(d)their email address.
In the event that [X] suffers a medical emergency or any illness sufficient to require medical treatment the parent who obtains that treatment for [X] shall immediately advise the other parent of this, including:
(a)the condition for which [X] obtained treatment;
(b)the treatment provider;
(c)diagnosis;
(d)prognosis; and
(e)treatment rendered.
Each party shall ensure that [X] is provided with liberal and flexible telephone communication with the other parent.
The mother is at liberty to obtain from any school at which [X] attends copies of all school reports, student newsletters and any other document ordinarily provided to parents and if any authority is required to be executed by the father the mother shall advise the father of same and he shall provide it.
Each party shall be at liberty to attend at [X]’s school and at any extracurricular activity ordinarily attended by parents.
The parties be restrained from subjecting [X] to any form of physical discipline and use their best endeavours to ensure that no other person does so.
Neither party by themselves, their servants and/or agents is to denigrate the other in the presence and/or hearing of [X].
All exhibits tendered in the proceedings be returned to the parties after the expiration of the appeal period.
THE COURT NOTES THAT:
The parties agree that:
A.Where these orders call for notice in writing the sending of an SMS or email to the other party’s mobile telephone or email address is sufficient to discharge that obligation.
B.School holidays commence on the last day of school term and end on the first day that [X] is required to attend school. In the event that there are an even number of nights in a given school holiday period the second half shall commence at 6.00pm on the middle day. In the event that there are an odd number of nights in a given school holiday period the 2nd half shall commence at midday on the middle day.
IT IS NOTED that publication of this judgment under the pseudonym Fraser & Farwell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
SYC 7427 of 2008
| MR FRASER |
Applicant
And
| MS FARWELL |
Respondent
REASONS FOR JUDGMENT
The father in these proceedings relied upon an amended initiating application filed 8 August 2012, an affidavit of evidence-in-chief sworn by him on 6 August 2012 and an affidavit of Mrs F, his mother, sworn on 15 July 2012.
The mother in these proceedings relied upon a response filed by her on 16 August 2012, affidavit of evidence-in-chief sworn by her on 14 August 2012, an affidavit sworn by her father, Mr F on 8 August 2012 and an affidavit sworn by Mr L on 16 August 2012. Mr L is in a relationship with the mother but does not reside with her. He is the father of her youngest child.
The Independent Children’s Lawyer relied upon a family report introduced into evidence in the proceedings and prepared by Ms M Regulation 7 Family Consultant in the Sydney Registry of this Court.
In addition, each party filed a case outline and numerous exhibits were tendered in the proceedings.
Counsel for the father cross-examined the mother. The mother was a litigant in person. The mother cross-examined the father at length. She also cross-examined his mother. The Independent Children’s Lawyer cross-examined both the mother and father. The Family Consultant was required for cross-examination by the parties and the Independent Children’s Lawyer. The mother wished to rely upon an affidavit sworn on 20 August 2012 by Ms R. Ms R is a person with whom the father agreed many years ago now, to act as a sperm donor by an artificial conception procedure. The contents of her affidavit had no relevance to those issues to be considered when determining [X]’s best interests ([X] being the parties’ child) and the making of parenting orders in these proceedings. Ms R has become a friend of the mother in more recent times (since 2011) and occasionally sees [X] in that social context. She also had [X] stay with her for approximately four days in a school holiday period when [X] was to reside with her mother. In fact, her mother was not present during this time, having remained in Sydney working. The mother, in seeking to put that affidavit material before the Court, was really attempting to cause vexation and embarrassment to the father. Counsel for the father opposed the mother’s reliance on such evidence arguing the affidavit’s contents were irrelevant. I ruled on this matter in favour of the exclusion of such affidavit. The mother also subpoenaed Ms B to attend court and give evidence. I released Ms B from attendance, her evidence also being not relevant to the matters I had to determine and able to be obtained from the father himself in any event. It was not contentious. The mother was engaged in a fishing exercise and has a clear desire to engage with
Ms B with whom the father has had another child – a matter I shall return to. Neither the maternal grandfather nor Mr L were required for cross-examination and as such their evidence was unchallenged. I note parts of such evidence as contained in the affidavit of the maternal grandfather were irrelevant or hearsay and accordingly gave those parts of the evidence little weight.
The matter before the Court was one in which parenting orders were sought. The proceedings concerned the parties child [X] born [in] 2005. [X] is now aged seven years and on the evidence is a well-adjusted, intelligent and engaging child who is loved by both her parents and who loves each of her parents. Her relationship with both is close. The father sought that [X] live primarily with him. The mother sought a shared care arrangement which altered in terms of the quantum of time spent with, according to where it was she might be residing and what school [X] might attend. The father initially sought that he have sole parental responsibility of [X] but as the proceedings continued he modified the orders sought by him to seek a limited form of sole parental responsibility and, in particular, sole responsibility for some part of [X]’s education.
Statements of fact in the reasons are findings of fact on the balance of probabilities.
History
The father was born [in] 1964 and is now aged 47 years. The mother was born [in] 1970 and is now aged 41 years. The parties entered into an agreement in early 2004 to conceive a child. They were not then in a relationship and never have been. The father was (it is agreed between them) a sperm donor whose identity was to remain anonymous at least for a period of two years. This of course did not occur and the mother told her parents and a close male friend initially before telling others of the father’s identity, whilst the father told his mother of the impending birth of her grandchild just prior to that occurring. It was for both parties, their first child.
[X] was born [in] 2005 and her father was at the hospital, first seeing her shortly after the birth. [X] then lived, until October 2006, (approximately 18 months) at [omitted] on Sydney’s northern beaches with the mother and the maternal grandparents. She regularly saw her father. When aged about six to seven months she commenced to spend overnight time with her father. By then the parties had signed a child support agreement which was registered and operative for 16 years. The mother is now most unhappy with the terms and length of that agreement and with what she perceives to be a low level of child support paid by the father to her for the support of [X]. I note this is her perception only, and that there have been changes to the child support amount by agreement and over time. Nevertheless, the quantum of child support payments permeates the mother’s ongoing dialogue with the father and negatively impacts upon her attitude toward him.
[X]’s time spent with her father commenced with two nights each week. The father was assisted in the care of [X] by his mother Mrs F. In October 2006, the mother took up residence in a unit in [omitted]. She resumed full-time employment. Her parents also moved and resided nearby continuing their support of [X] and the mother. [X] commenced attending childcare and subsequently kindergarten and all of her grandparents assisted the parties in their travel arrangements for, and care of [X]. [X]’s time spent with her father increased to, at times, three nights a week and some other longer periods. At other times she remained with her mother or in the care of her paternal grandmother when her father was absent on [occupation omitted]. She remained primarily in her mother’s care (which included much time spent with the maternal grandparents, uncles and aunts) but with consistent and significant time in her father’s care and to a lesser extent her paternal grandmother’s care. [X] thrived in this very supportive and loving environment.
In mid 2008, the mother became pregnant to another man with whom she had a relationship but with whom she did not at the time reside. She informed both the paternal grandmother and the father of the pregnancy. She sought to purchase a home and discussed this with the father, including suggesting to him that she and [X] might live in [U]. Discussions between the parties ensued but with no satisfactory outcome. The father thus issued an application to restrain the mother from relocating the residence of [X] outside the Sydney metropolitan area.
On 3 February 2009, the mother settled her purchase of a property at [U]. She purchased such property with the assistance of the first homeowners grant then available. At the time, the father’s pending application seeking to restrain [X]’s place of residence, if successful, would not have permitted the relocation of [X]’s primary place of residence to [U]. Indeed on 9 February 2009, FM Walker made orders including restraining the mother from relocating the place of residence of [X] outside the Sydney metropolitan area until further order, and further providing for [X] to reside with her father from 10am Tuesday until 10am Friday in each week. [X] was then aged three years and nearly ten months.
Certain events happened at around this time which continue to impact upon the parties’ relationship and their parenting of [X]. The mother lost her full-time contract work as a [omitted] and her financial position became more precarious. She had a significant argument with her father commencing an estrangement which was to last two years. She gave birth to her second child [Y] (known as ‘[Y]’) [in] 2009. Some three days following the birth of [Y], the mother and her two children [X] and [Y] relocated to the mother’s property at [U]. This was in breach of the existing restraining order. One month later and on 29 April 2009, the parties entered into consent orders with respect to [X]’s care. Those consent orders provided, amongst other things, for [X] to live with her father on weekends if [X] lived in Sydney with her mother, but outside of a 20 minute driving distance from the father’s home. If [X] lived within a 20 minute drive of the father’s home then [X] would spend two nights during the week living with the father. [X] could remain living with her mother in [U] (which the father conceded) for the balance of that year. However, commencing 2010 and in the event the mother remained in [U], then [X] would commence to live with her father from Monday to Friday and with her mother at all other times. A further order provided for [X] to attend a school in the area where her mother lived if her mother relocated to Sydney, or a school in [N] where the father lived.
Prior to the entering into of the consent orders in April 2009, the father had not told the mother in these proceedings nor his own mother that he had acted as a sperm donor for Ms B and that she had become pregnant. Ms B subsequently gave birth to a daughter [in] 2009 in Melbourne. The existence of this child was not known to the mother, paternal grandmother or her half-sister [X] for some time. The mother’s ongoing palpable fury with the father which was on display in the courtroom over the course of the proceedings has at its core she claims, his alleged deceit of her. The mother puts the case that had she known of the pregnancy of Ms B, she would not have consented to the orders in April 2009. This was because she claimed the father said that travel to [U] was difficult for him because of a sore back and hence she accommodated his needs and agreed for [X] to return to Sydney at the very time that he was becoming a father to a child who resided in Melbourne, and whom he would presumably travel a great distance to see.
In February 2010 (and pursuant to the earlier orders) because the mother remained residing in [U], [X] commenced to reside with her father from Sunday evening to Thursday evening inclusive each week. The mother then collected [X] from her school being the [N] School at 3pm on Friday and returned with her and [Y] to [U] where [X] remained until Sunday evening when her father collected her from her mother’s home. The mother remained living in [U] and for some of that time and briefly, with [Y]’s father. He has provided no or minimal financial assistance for the support of [Y]. In March 2010, an apprehended violence order (AVO) was taken out by the police on the mother’s behalf. She had been assaulted by [Y]’s father. At the time she was pregnant again to [Y]’s father and proceeded to have a termination. This was a very low point in her life. She had no job, having lost further employment, little money, had been assaulted by [Y]’s father and [X] was attending school in Sydney and living away from her.
The mother’s time in [U] with [X] and [Y] in her care had also been problematic in terms of the mother’s care of [X] at times. She confided in the paternal grandmother with whom she had a good relationship, mostly because Mrs F tried, as she said in her evidence, to keep the relationship between the mother, [X] and her “nice, steady and calm.” Mrs F impressed as a credible witness who loved her grandchild and who had been a constant in her life. She acted always to assist the mother and at times worked in concert with the maternal grandmother. Her evidence was that she considered the mother a “warm and generous person” now, despite the mother’s abuse of her which has included calling her a “stupid old alcoholic stooge” and misrepresenting her evidence to the mother’s father and others. The father, on the evidence, was correct to conclude that the mother’s level of vitriol and irrationality directed at both himself and his parents (his father is now deceased) renders any real communication between the mother and father impossible. Mrs F has never said to the mother, or of the mother, that in her view she is “acutely mentally ill” yet the mother persisted claiming she had and continues to so persist. What Mrs F did do in May 2009 was provide support for the mother, in a call instigated by the mother, and suggest she attend upon a counsellor to assist her in coping generally and in caring for [X] specifically. She subsequently spoke with the mother in October 2009 about the mother’s difficulties in her relationship with [X] (as reported to her by the mother) and referred to that discussion in her affidavit sworn 15 July 2011. The evidence contained in paragraph 5 is as follows:
“On 19 October, 2009 [Ms Farwell] said to me “I have sought professional help for my relationship with [X]. The counsellor said that I have manic energy and need acute treatment” She also told me “I admitted to the counsellor that I smacked [X] and the counsellor cautioned me about doing so.”
The mother’s difficulties at the time and throughout the first half of 2010 were also highlighted in other subpoenaed evidence before the Court. On one occasion the mother was reported as saying to a Department of Community Services worker, the Department having become involved with the mother, that she was “a bad mother and emotionally corrosive to [X].” The mother admits that she was struggling at the time but puts it in the context of an isolated stressful time in her life where her responses are in the normal range given that stress.
At the end of July 2010, the mother and [Y] returned to Sydney to live, the mother having secured full-time employment and accommodation. She and [Y] took up residence in [C] in a share house with Mr L being a person whom she had known for many years and with whom she had an on and off relationship with. The parties agreed that [C] was a suburb within the 20 minute drive from [N] criteria, however the father sought to alter the earlier orders with that alteration being in the form of a parenting plan signed by the parties in September 2010. It provided that [X] remain at the [N] School which is walking distance from the father’s home and that she live with her father for three nights a week and not two as anticipated in the earlier consent orders. But of course those earlier orders did not anticipate a six month period when [X] lived five nights a week with her father and in his primary care before the mother’s relocation back to Sydney. The mother now claims she was coerced into this arrangement by the father’s withholding of child support payments. I reject this claim of the mother. There was considerable debate between the parties before the signing of this parenting plan including significant abuse by the mother directed at the father. The father did not at any stage fail to provide adequate care and monetary support for [X]. He did not threaten the mother.
On 21 December 2010, [X] and her father phoned the mother from the father’s property in [B] and informed her that [X] had a half sister, [A]. At that time [A] was approximately 14 months of age. She and her mother were with [X] and the father at the time of the call. The mother was enraged by the call and her level of ongoing abuse of the father, in particular via email and ultimately to the world at large, was heightened. She altered the father’s Wikipedia page, ignoring his privacy and in doing so engaging in reprehensible conduct. She wrote inflammatory and exceedingly inappropriate emails to his solicitor, suggesting a sexual relationship between the solicitor and her client. She continued her denigration of the father to as wide an audience as possible.
On 25 May 2011, the mother advised the father that she wished for [X] to commence at [C] School in accordance with the 2009 consent orders and without his consent she attempted to enrol [X] at [C] School on 29 June 2011. She unilaterally physically removed [X] from her school in [N]. At the same time, she secured independent accommodation for herself and her two children in [C]. In the mother’s attempt to remove [X] from her school in [N], she involved not only the father and the child, but Ms H the principal of the school and staff members. She advised by email of the circumstances surrounding [X]’s conception, her view of the enforceability of the parenting plans as against earlier consent orders, and the quantum of maintenance to be paid by the father. In fact, contrary to the mother’s assertion, there was agreement between the parties as to [X]’s schooling in accordance with order 3 of the orders made by consent in April 2009, that she commence at a school in the [N] area. Sub-paragraph (b) of order 3 could not operate given the mother was not residing in a Sydney suburb. Subsequently, the parenting plan dated 25 August 2010 confirmed [X]’s ongoing attendance at that school, unless by agreement her parents determined she should attend a different school. In providing, the information she did, the mother asserted she was promoting [X]’s best interests. The provision of such information was in fact to portray the father in a bad light. As she said in evidence in an insightless response to why it was she provided information to the school as to [X]’s conception :
“I thought it would have been apparent from the disclosure of that fact that there wasn’t really that much intention by your client to have such a long-term controlling and influential effect on her life. Correct.”
Otherwise the email correspondence of the mother exhibited her tangential approach and the inappropriateness of her responses. To a member of staff notifying her that she had been placed on the school’s email list and enclosing the “last newsletter etc, for you to look at” before signing off “Have a lovely day”, the mother responded:
“Thanks for your wishes: I always have a lovely day in Sydney, being that it’s not Somalia. Or Afghanistan. Or virtually anywhere else in the increasingly miserable world. You have a great day too.”
Such action by the mother precipitated the father filing an application on 18 July 2011 which launched these proceedings. On 27 July 2011, FM Walker made orders continuing [X]’s attendance at [N] School with [X] to live with her father from Monday morning until Thursday after school in each week and for half the school holidays and other special days and otherwise with the mother.
On 27 January 2012, the mother gave birth to her third child, [Z]. Mr L is [Z]’s father. Mr L is also very involved in the care of [Y] as [Y] has not seen his biological father for over two years now. The mother and Mr L remain in a relationship although not living together and he provides, on the mother’s evidence, limited financial assistance to her and it is in the form of purchasing some of the necessities of life for her and a young baby. The mother’s evidence is that this equates to about $40 to $50 a week. Mr L spends weekend time assisting in the care of [X], [Y] and [Z] and has a good relationship with all the children. He observes a warm and caring relationship between the mother and the children.
The mother’s financial problems are continuing and she resumed working full time in early February 2012, being shortly after [Z]’s birth. She [occupation omitted] from home from Monday to Friday. As a result of her extending her working week from four days to five days following [Z]’s birth, the mother could no longer get [X] to school on a Friday morning and her attempts both before and after [Z]’s birth resulted in [X] being either late or not attending at all on some occasions. Thus the parties agreed for [X] to remain residing with her father for four nights in each week and with her mother for three nights, with the father or his agent collecting [X] from the mother’s home on a Monday morning and delivering her to school. That Monday morning collection has also been problematic on occasion and consequently stressful for [X].
Evidence of the Family Consultant
Ms M’s report dated 31 July 2012 was introduced into evidence. In it, Ms M recommended that [X] live with her father and that he have sole parental responsibility for some aspects of [X]’s life, especially her educational needs. Ms M further recommended in that report, essentially, that [X] spend time with her mother on a weekly basis on weekends and that perhaps when she turns 10 years of age, [X] spend time with her mother every second weekend, in the event the mother cannot facilitate her extra curriculum weekend commitments. Under cross-examination she did not significantly move away from these recommendations save she agreed that it would promote [X]’s best interests to spend some weekend time with her father every third or forth weekend.
The father detailed to Ms M a number of concerns he had about the mother’s care of [X]. These included that the mother hit [X] and made negative comments about him to [X]. The mother conceded both these matters in evidence. He also expressed concern that [X] might be expected to provide her mother with emotional support when her mother is distressed or upset, and that [X] is exposed to what he described as her mother’s ‘manic’ behaviour at times. He however had some sympathy for the mother’s position as a single mother of three children, and noted that [X] loved both her parents.
The mother detailed to Ms M her concern with the polluted nature of the suburb of [N], her inability to leave her home between 8.00am and 6.00pm given her employment as a [omitted], and her need to work a five day week all resulting in her desire for [X] to attend a primary school within walking distance of her home and reside with her. She complained that when with her father, [X] was cared for by others including her grandmother which she had some concerns about, in particular her age. Ms M noted as to the mother’s presentation at interview the following:
“During the interviews, Ms Farwell seemed to have considerable difficulty focusing on [X] and what would be in her best interests. She spoke at length about Mr Fraser’s shortcomings, especially in relation to what she considers to be his lack of honesty and his failure to stand by agreements, which she said they had made. She described Mr Fraser in a very negative way, calling him, “a manipulative liar” and a “control freak”. Most of Ms Farwell’s responses to questions asked of her contained negative comments about Mr Fraser.” (at paragraph 32).
“At times it was difficult to follow what Ms Farwell was saying as she spoke very quickly, often in a very angry tone and she seemed to have difficulty focusing on a subject, as she digressed frequently. She did, however, at times seem aware of this and she apologised once for doing it. For significant periods of time, Ms Farwell spoke without looking at the family consultant, rather directing her eyes at the wall or the ceiling.” (at paragraph 34).
Ms M concluded that [X]’s needs, especially her emotional needs, were not being met in her mother’s household. She said of [X] “[X] is a very young child and she seems to have taken on a parenting role, in relation not only to her little brother and sister, but also to her mother. This is not in [X]’s interests as children who experience parentification often suffer long-term problems especially in relation to forming healthy adult relationships.”
Ms M observed that the mother did not feel the need to monitor her own behaviour so that [X] was not exposed – as she clearly was – to the mother’s strong feelings of anger and distress, much of which was directed toward [X]’s father. She noted further, [X]’s sadness when speaking of her mother getting “stressed out” and her feeling of being not able to do that which she thought she should, namely make her mother feel better. She described [X] as feeling “rather burdened” by the situation at her mother’s home and said [X] found her father’s home “a much more secure and emotionally safe environment.” [X] also spoke about the paternal grandmother indicating to the report writer that she felt very loved by her and very much at home when staying with her. Whilst the mother complained that her family were not mentioned by Ms M, I note at the time of the report interviews and subsequent writing, the affidavit of the mother’s father was not before the report writer. Further, the father made no complaint about [X]’s care when with her extended maternal family that required some investigation, whereas the material filed by the mother and her criticism of the maternal grandmother required exploration with [X] and indeed the filing of an affidavit by the paternal grandmother.
The expression of [X]’s wishes was contained in particular in the following evidence, being paragraph 39 of the family report:
“[X] appeared very reluctant to express any clear preference for being at either her father’s or her mother’s home. She seemed at one stage to be very sad and even close to tears. She mentioned that it is more peaceful at her father’s place and spoke about feeling very comfortable and happy there. She did say, however, [say] that she sometimes worries when her father goes away as she is frightened that he might be in a car crash “and die”. [X] did say that she sometimes feels “unhappy” and “stressed” when she is at her mother’s home. She seemed very concerned about her mother knowing that she feels this way.”
Ms M referred to the mother’s “extreme anger” at the father and her presentation as someone who is very burdened by her current circumstances and who easily becomes very distressed and angry. She viewed the mother’s comments during the interviews as indicating that the mother was more focused on her disagreements with the father than on [X]’s current needs. She noted that the mother often reacted to difficult situations with extreme anger, at least verbally. She observed the parties to have not had a positive co-parenting relationship in the past and concluded that conflict between them would continue. Although, Ms M was of the view that [X]’s best interests would be served by living predominately with her father she also concluded that it was “… very important that [X] spend regular time with her mother and her siblings if she lives with her father.”
I accept the expert evidence of Ms M, sitting as it does with my findings, as to the totality of the evidence and observing the mother’s demeanour in the course of the proceedings. Whilst the father presented as calm and rational throughout, the mother often went off at tangents, had difficulty answering a question directly and at times used the proceedings for the satisfaction of her own needs being the conducting of a tirade against the father for the most part, with one notable concession, rather than an advancement of [X]’s needs. That exception was when the mother acknowledged all the positive elements the father does bring to [X]’s life, including her musical and academic advancement and his generosity with her and care for her. Throughout most of the proceedings, however, the mother did not exhibit a capacity to contain appropriately her negative emotions. The mother’s inability to do so impacts markedly on [X], as described poignantly in the following of Ms M’s evidence when talking of [X] and her mother’s interaction:
“A parent who a child perceives as getting angry and often angry for days and feels that there’s nothing that they can do about it, but feels that they should be able to do something about it and appear very sad and unhappy and tearful when talking about that, I think is significant.”
Ultimately, Ms M was adamant in her view, which I accept, that arrangements for [X] need to be as it were fixed, and not fluid, given the poor communication between the parties.
Conclusion
[X] needs stability of routine and a cessation of her perceived role to parent her mother. In residing with her father she will have those needs met. In the rare event the father is away for any period of time, that is not overly lengthy, then [X] should remain living in the father’s home, attending school as usual and be cared for by the paternal grandmother or other appropriate carer as arranged by the father.
As the mother herself concedes, it is in [X]’s best interests that she not be travelling across suburbs on Monday morning before school and experience the stress and embarrassment that has accompanied that in the parties attempts to ensure her arrival at school on time to date. In circumstances where the communication between her parents is poor, such an arrangement is fraught. A Sunday evening return to her father’s home is in her best interests.
The parties and the Independent Children’s Lawyer agree that overseas travel is in [X]’s best interests and that such travel should occur for a period of no more than three weeks becoming four weeks when she is ten years of age. The mechanical orders associated with such travel are also fairly much agreed.
The earlier consent orders of April 2009 were entered into by the father with a view to promoting [X]’s best interests. The mother’s description of the father’s motivation – a sore back and therefore limited ability to travel – I reject. The mother herself entered into the orders because they gave her a range of options, addressed her issue of child support, allowed her to remain with [X] in [U] at the time for the balance of the year, and were a realistic outcome in the context of a court hearing in respect of parenting orders for [X]. I am also persuaded on the evidence the mother thought the arrangements were good for [X]. Sympathy for the father was not a driving force. The father’s consideration at the time involved what he claimed to be a four hour round trip between the parents’ homes; [X] moving further away from him and her paternal grandmother resulting in less time spent with him and more with the mother in circumstances where he had some increasing anxiety about the mother’s coping ability; and consistency of future education which he saw being best available in Sydney – in all a promotion of [X]’s best interests. The mother’s overwhelming anger at the father, having its genesis in the making of these orders, is thus not properly explained by her and lacks credibility. It is obvious the financial disparity in their lifestyles and assets makes the mother bitter toward the father in circumstances where he has to some extent used his better financial position to negotiate with her, her future living arrangements. But I am satisfied the father was acting in what he perceived to be [X]’s best interests by trying to organise a living environment where [X] could move between her parents households during the week, and for that geographical proximity was essential. Even as it is, the mother’s evidence is that the father needs to facilitate travel to and from her home because she cannot leave her house before 6:00pm each week day or 5:00pm on a Friday. The other issue for the mother is that the father has been contemptuous of her and [X] by not informing them immediately of the child [A]’s birth. In this the mother has a not surprising reaction. The father showed no insight into this situation. [A] has a different mother but the same father. [X] and [A] have only one father. It is not possible for the father to say he has no obligations toward his second daughter, and that her existence has no relevance to his other daughter, such that for 14 months she and her mother knew nothing about [A]’s birth. This showed no respect for anyone and that lack of respect was justifiably hurtful to the mother. But the mother’s ongoing campaign of anger at the father and at times vitriolic abuse of him bears little resemblance to the alleged wrong. It is, at times, ‘manic’ as he describes it.
The mother suggested in her evidence that she would relocate to the suburb of [N] if [X] was to go to school there, even though she would need to obtain, with some difficulty, housing suitable to qualify for a licence to [occupation omitted]. Her evidence was also that she would consider living in that suburb to be living in ‘smog and rubbish’ that was entirely unsuitable for her young children. On this evidence the actuality of such a move must be remote.
The mother’s claim that the father was away ‘a lot of the time’ with touring or being in [B] attending to his business and property dealings was not supported by the evidence. In 2009, he was not away on any night that [X] was with him. In 2010, when [X] came into his care, he was away for one night. In 2011, he was away for three nights and in 2012, to date, only one night. He has organised his life around providing care for [X]. He has taken seriously her academic and music tuition as the mother hoped he would and is grateful for, and has been a constant presence, implementing those routines.
The mother sought an order that the parents provide each other with details of all other parties looking after [X] in their absence from her, when she is in their respective care. I do not propose to make such an order. I am satisfied that each arranges appropriate care for their daughter and with her best interests at heart. They both love [X] and are protective of her. They do not need to account to each other for every instance of alternate care. It would however be a function of their shared parental responsibility to notify the other of longer term arrangements where the parent is not present, for instance when [X] stayed with Ms R.
The mother admitted in the proceedings that she has a great amount of antipathy toward the father. She has varying derogatory expressions in respect of him including that he is a “slimy liar,” a “self-serving fuckwit” and “a little misogynistic fuckwit.” She does not hide this contempt from [X]. She believes that her daughter will grow to know her father for what he is, “a liar,” and her evidence was that she would assist in this recognition. She has discussed the proceedings with [X]. Her own father was similarly disenchanted with Mr Fraser. He had no hesitation in deposing to facts about which he had no personal knowledge and described the father as a “quietly scheming individual”. None of this helps [X] who loves them all.
I have considered the promotion of [X]’s best interests taking into account those matters which I must as set out in s.60CC of the Family Law Act 1975 (Cth) (‘the Act’). [X] is more comfortable in the residence of her father and I give that some weight. Of particular concern in this consideration is the risk to her emotional development were she to reside with her mother. It is not possible for reasons of geography and the mother’s employment, and because of the parties’ inability to properly communicate, for [X] to live equally between their households and nor is it conducive to [X]’s proper emotional development. Her father is able to provide for her needs better in this regard. It is important however for [X] to regularly spend time with her mother and [Y] and [Z]. That needs to occur, in these younger years, and on the evidence of Ms M’s, on a weekly basis and being mostly weekends for the reasons contained herein. There also must be holiday and special occasion time. Given the history of time spent with on Christmas Day which has favoured the mother, I propose that such time occur with the father in this year. It is not in [X]’s best interests to see both parents on this day given their level of conflict and the mother’s inability to control her negative emotions.
It is necessary to make orders where the father can determine [X]’s educational needs. [X]’s best interests were not served by the mother’s behaviour in her dialogue with the principal and staff members at her present school and the mother’s unilateral determination to remove [X] from the school ignored the benefits flowing to [X] from continuing her attendance, her being settled in the environment and it being a school that previously her parents had agreed upon. It is not possible on the evidence for there to be agreement about the secondary school. The mother’s changing views and desire to ongoing discuss matters renders effective and sensible resolution difficult to achieve. A determination of this matter now, providing for the father to have sole parental responsibility for this aspect of [X]’s care should lead to no further proceedings being instituted.
I do not propose to make any order as to the costs of the Independent Children’s Lawyer. Each party and the Independent Children’s Lawyer shall bear their own costs. The mother cannot afford any representation and these proceedings have been elongated by the fact of the mother being a litigant in person and her manner of cross-examination of the father. There is a cost in that to the father. The father conducted the proceedings as effectively as possible and I do not think when looking to all of the matters as set out in s.117 of the Act, including that the father has succeeded in his application, that a costs order should be made against any party.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 12 October 2012
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