FULLMER & OMEROS
[2019] FCCA 191
•1 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FULLMER & OMEROS | [2019] FCCA 191 |
| Catchwords: FAMILY LAW – Parenting – competing applications for time – where the Mother proposes supervised time for the Father – where the Father proposes equal shared time – entrenched parental conflict – conflicting parenting styles – high conflict personalities - where the parents are unable to communicate – issues as to changeover – child’s young age – entrenched high level conflict – family violence – Father’s capacity to meet the child’s emotional needs – sole parental responsibility. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.60CC, 60CC(2), 60CC(3), 61DA, 121 |
| Cases cited: Mazorski v Allbright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 Re K (1994) FLC 92-461 |
| Applicant: | MR FULLMER |
| Respondent: | MS OMEROS |
| File Number: | MLC 7203 of 2016 |
| Judgment of: | Judge Stewart |
| Hearing dates: | 28 February 2018, 1 & 2 March 2018, 10 & 11 May 2018 |
| Date of Last Submission: | 11 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 1 February 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| The Respondent appeared in person. |
| Counsel for the Independent Children's Lawyer: | Mr James |
| Solicitors for the Independent Children's Lawyer: | Lampe Family Lawyers |
ORDERS
The proceedings are adjourned to 6 March 2019 at 10.00am for mention.
AND THE COURT NOTES THAT:
(A)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
(B)This copy of the Court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the orders.
IT IS NOTED that publication of this judgment under the pseudonym Fullmer & Omeros is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7203 of 2016
| MR FULLMER |
Applicant
And
| MS OMEROS |
Respondent
REASONS FOR JUDGMENT
Background
These are parenting proceedings in relation to one child, X (“X”) born on … 2014 who is now five years old. X has lived in the primary care of her Mother and spent regular, although somewhat disjointed, time with her Father. The primary issues are X’s living arrangements.
Each of the parties appeared as self-represented litigants throughout the course of the final hearing, and for the majority of the proceedings generally. When the proceedings first commenced, the dispute appeared deceptively straightforward. From recollection, the parties were one night apart per fortnight surrounding X’s care arrangements. There were issues, which continue, surrounding overseas travel.
The Father was born on … 1970 in Country O and is currently 48 years old. He describes himself as a professional but was not working at the time of these proceedings.
The Mother was born on … 1975 in England and is 43 years old. She describes herself as a professional.
The parties met in Country O in 2009 and commenced cohabitation shortly thereafter. They relocated to Australia in early 2010, although there is a dispute as to how this came about. The Mother moved to Australia in or around … 2010 and the Father followed shortly thereafter.
The parties separated for a brief period in 2012, for somewhere between one and a half months and three months. They reconciled and X was born in … 2014.
Approximately 12 months later, on 18 January 2015, the parties separated on a final basis. Across the course of the next 18 months, the Mother took the child on numerous international holidays for extended periods of time, including to the United Kingdom for five weeks in … 2015, Country A in … 2016 and Country O, the United Kingdom and Country P for five weeks in … 2016. There is disagreement between the parties as to whether or not the Mother had obtained the Father’s consent for any of this international travel.
Procedural History
The procedural history in this matter is extensive. I note that, while not covered in any great detail here, there have also been numerous Contravention Applications filed by each of the parties, which I shall refer to later in these reasons.
Approximately 18 months after the parties finally separated, in August 2016, the Father filed his initiating Application. At this stage X was two years and seven months old. The Father sought orders that:-
a)the parties have equal shared parental responsibility for X;
b)X be placed on the Airport Watch List until further order;
c)X spend time with him in a two week cycle as follows:-
i)in the first week, from 6.00pm on Wednesday evening until 9.00am on Thursday morning, with the Father and X to Skype each Monday and Thursday at 6.30pm for a 10 minute period; and
ii)in the second week, from 6.00pm on Wednesday evening until 9.00am on Thursday morning and from 6.00pm on Friday evening until 9.00am on the following Monday morning;
d)X spend further time with the Father:-
i)for a six week period in July/August each year to be agreed between the parties (for the purposes of overseas travel with X);
ii)special occasion time including half of the long summer school holidays, Christmas and New Year’s periods, Father’s Day and both X and the Father’s birthdays;
e)the Father and X have reasonable telephone time;
f)the provision of at least 30 days’ notice by either party to the other in respect of any interstate or international travel with X;
g)the Registry of this Court hold X's Passport; and
h)notification and non-denigration orders.
On 14 September 2016, the Mother filed a Response, seeking that:-
a)the Mother have sole parental responsibility for X in relation to education and schooling-related decisions, but that otherwise the parties have equal shared parental responsibility;
b)X live with the Mother;
c)X spend time with the Father, until attaining the age of five years:-
i)each Wednesday from the conclusion of day care/kindergarten or school until the commencement of day care/kindergarten or school the following Thursday; and
ii)each Friday from the conclusion of day care/kindergarten or school until 6.00pm on the following Saturday;
d)upon attaining the age of five years, X spend time with the Father in a two week cycle as follows:-
i)in week one, from the conclusion of school on Wednesday until the commencement of school on Thursday; and
ii)in week two, from the conclusion of school on Friday until the commencement of school on Monday;
e)special occasion time including Christmas day, half of school holidays (upon X reaching school),
f)each of the parties being at liberty to travel within Australia with X for four weeks in total each year, to be taken in one week blocks provided that 30 days’ prior notice is given;
g)the Mother be at liberty to travel overseas with X upon the provision of 30 days’ prior notice and that communication is facilitated whilst they are away;
h)the Father complete a Parenting Course and a Men’s Behavioural Change Course;
i)during holiday time, the party who is spending time with X make her available for Skype or telephone communication with the other parent; and
j)notification and non-denigration orders and the like.
The matter first came before the Court on 19 September 2016. Each of the parties were represented by a legal practitioner that day. On that date, the matter was adjourned to 6 February 2017 for mention. Consent orders were reached between the parties, providing that:-
a)the parties file any further material no later than 14 days prior to 6 February 2017;
b)the parties obtain a private Family Report from Dr B (“Dr B”) in relation to parenting matters, with the parties to share equally in the costs of the Family Report;
c)the Father spend time with X, until 6 February 2017, unless otherwise agreed as follows:-
i)each week from 6.00pm on Wednesday until 9.00am the following Thursday; and
ii)each week from 6.00pm on Friday until 6.30pm on the following Saturday;
and that X otherwise live with the Mother;
d)if the Mother is to travel overseas prior to 6 February 2017, she give the Father the first option to care for X and provide him with 30 days’ notice; and
e)a notation was made to those consent orders indicating that the Father agreed to the time with X on the basis that he would reserve his position to seek further time on the next return date.
On 29 November 2016 the Mother filed an Amended Response. This Amended Response was essentially in line with the orders that she originally sought, save that she also sought sole parental responsibility in relation to medical issues, and that the conclusion of the Father’s time on the Saturday night be changed from 6.00pm to 5.00pm.
The matter came before the Court on 6 February 2017 but was adjourned to 9 February 2017 for interim hearing. There was an issue on that date as to whether or not the solicitors for the Mother, Messrs Lander & Rogers, should be able to act and a notation was made on those orders indicating that the Father had told the Court he would not seek an injunction against the solicitors to restrain them from acting in these proceedings.
The Mother filed a Further Amended Response on 8 February 2017, seeking that:-
a)the Mother have sole parental responsibility with respect to education and health-related decisions, save that she consult with the Father and consider his views, and that otherwise the parties retain equal shared parental responsibility for other issues;
b)X live with the Mother;
c)X spend time with the Father as follows:-
i)whilst X attends day care, each alternate weekend from 6.00pm on Friday until 9.00am on Monday, and from 6.00pm on Wednesday until 9.00am on Thursday in the alternate week; and
ii)upon X attending school, each alternate weekend from the conclusion of school (or 3.30pm) on Friday until the commencement of school (or 9.00am) the following Monday, and from the conclusion of school (or 3.30pm) on Wednesday until the commencement of school (or 9.00am) on Thursday in the alternate week;
d)the time set out above be suspended over the long summer school holidays, with the Mother to determine the time spent over the long summer holidays by providing the Father with 30 days’ notice of her planned holiday time, proposed arrangements and that she facilitate communication;
e)the Mother be at liberty to travel overseas with X for four weeks per year, and she provide the Father with 60 days’ written notice of such time and facilitate communication between X and the Father during such time;
f)provisions for special occasion time, including ANZAC Day, the Mother and Father’s birthdays, Mother’s Day and Father’s Day, X’s birthday, Christmas and Australia Day;
g)the parties to engage in post-separation therapy with Ms C (“Ms C”);
h)the Father complete a Parenting Course and a Men’s Behavioural Change Course at Lifeworks; and
i)notification and non-denigration orders and the like.
On 9 February 2018 the matter returned for interim hearing. On that date the Mother was represented by Counsel and the Father appeared in person. An Independent Children’s Lawyer was appointed for X and the proceedings were adjourned to 15 May 2017 for mention and to 26 February 2018 for final hearing. Further orders were made regarding X’s care until further order:-
a)X live with the Mother and spend time with the Father as follows:-
i)each alternate weekend from 6.00pm on Friday until 9.00am on the following Monday;
ii)each alternate Wednesday from 6.00pm until 9.00am on the following Thursday;
iii)special occasion time including X’s birthday, ANZAC Day, Father’s Day, Mother’s Day and Christmas Day; and
iv)other times as agreed between the parties;
b)the Father attend a Men’s Behavioural Change Course; and
c)the parties engage with Ms C for individual post-separation counselling, with each of the parties to pay the cost of their own respective counselling.
On 22 February 2017, the Father filed an Application in a Case. This was in relation to the Mother’s sole parental responsibility for X. He sought to revoke her ability to exercise sole parental responsibility in relation to health, school and extracurricular activities, and that this revert to either a consultation or equal shared parental responsibility. He also sought an order that the Mother’s decision with regards to X’s school or day care at that time be revoked.
On 30 March 2017, the Mother filed an Application in a Case. She sought, in summary:-
a)a review of the Christmas time arrangements for X pursuant to the orders of 9 February 2017;
b)the Father attend changeover at the day care centre in a timely manner;
c)the Father cover 100% of his late fees for any educational institution attended by X;
d)X continue at her current day care and increase days if possible;
e)the Mother have sole parental responsibility for education, the Father be at liberty to participate in the process but cannot “block its progress or be non-constructive (with the mother, child OR institution) now or in the future”; and
f)the parties equally share the costs of the child’s care and education fees.
The matter came before the Court on 15 May 2017. On that date, the proceedings were adjourned to 29 June 2017 for interim hearing before Judge Riethmuller in relation to the Father’s Contravention Application filed on 21 March 2017. Orders were made that discharged order 9 of the orders made on 9 February 2017 (being the changeover order referred to above) and a new changeover order was made as follows:-
3. Until further order, and in order to facilitate the child X born … 2014 (“X”) spending time with the Father pursuant to the orders, changeovers take place as follows:-
(a) at X’s kindergarten, if X is scheduled to attend kindergarten, on a Wednesday, Thursday or Friday when she is to be in the Father’s care;
(b) at X’s day-care, if X is scheduled to attend day-care, on any date she is to go into or out of the care of the Father; and
(c) otherwise to occur on the front footpath of the Suburb Q Police Station;
AND THE COURT NOTES THAT each of the parties be entitled to use a nominee to effect such changeovers.
Notations were made to those orders indicating that consideration would be given to transferring the matter to the Family Court of Australia on the adjourned date, on the basis of the personality styles of the parties impacting on the complexity of the matter.
The matter came before his Honour Judge Riethmuller on 29 June 2018. His Honour made orders by consent. They are, in summary, as follows:-
a)the parties apply to the Berry Street Children’s Contact Service in Suburb R (“Berry Street”) for the purposes of changeover;
b)a discharge of order 3 of the orders made on 15 May 2017 (being the second changeover order referred to above);
c)changeovers to take place as follows:-
i)at X's Kindergarten, if X is scheduled to attend on any day where she is to be in the Father’s care;
ii)at X’s day-care if X is scheduled to attend on any date she is to go into or out of the Father’s care;
iii)otherwise at Berry Street at times that Berry Street can accommodate that approximate the Court Orders; and
d)in the event that Berry Street was not available to facilitate changeover:-
i)if facilitated by a nominee of either party, on the footpath of the Suburb Q Police Station; and
ii)if facilitated by the parties, inside the Suburb Q Police Station.
His Honour noted that the Father did not consent to the order made in relation to changeover occurring inside the Suburb Q Police Station. The matter otherwise remained listed for final hearing on 28 February 2018.
On 31 August 2017 the Mother filed an Application in a Case and a Contravention Application. The Mother’s Application in a Case sought that:-
a)time be abridged so that the Application in a Case is heard urgently;
b)paragraph 11 of the orders of 9 February 2017 (relating to Ms C) be enforced;
c)the breach of paragraphs 14 and 15 of the orders made on 9 February 2017 “be dealt with accordingly”;
d)a full assessment of X’s “emotional, psychological and physical safety” be reviewed;
e)a review of X's Christmas time with the Father “in light of family violence issues and past experience”; and
f)leave of the Court to use video footage at the final hearing.
The matter came before the Court on 3 October 2017 in relation to these two applications. The Mother was granted leave to withdraw her Contravention Application and further orders were made as follows:-
a)order 11 (being the order relating to the parties’ engagement with Ms C) was discharged;
b)the parties to engage with Ms D (“Ms D”) for individual post-separation reportable counselling, with each party to be responsible for the costs of their own counselling;
c)each party to attend on at least two sessions with Ms D prior to final hearing if practicable, and otherwise attend at the direction of the Independent Children’s Lawyer in consultation with Ms D;
d)the Independent Children’s Lawyer was granted liberty to provide Ms D with any professional reports in the proceedings, including the Family Report of Dr B;
e)orders in relation to the parties being able to rely on video evidence in the proceedings;
f)the Mother’s Application in a Case was dismissed; and
g)any further interim applications be listed to the final hearing unless granted leave of the Court.
The parties came before his Honour Chief Judge Alstergren for a compliance hearing on 24 November 2017. On that date, his Honour listed the matter for a further compliance hearing on 14 February 2018 and made an order that the parties make an application for a Family Dispute Resolution Conference with Victoria Legal Aid. His Honour also adjourned the Father’s Contravention Application filed on 15 November 2017 before me on “6 December 2018”. This date was in error. It should have been 2017 and it was listed within the computer management system of the Court (Casetrack) as 2017. It is most unfortunate, particularly in a case such as this that the incorrect date was recorded on the face of the orders and I apologise to the parties for that error.
On 6 December 2017, neither the Mother nor the Father attended at Court. The Father’s Contravention Application was struck out and an order was made that in the event that the Father made an application to reinstate the Contravention Application, it be listed to the first day of the Final Hearing.
The matter came before his Honour Chief Judge Alstergren for a further compliance hearing on 14 February 2018. His Honour ordered that the parties each pay one half of the costs of Ms D's Updated Family Report within two days, and that otherwise the matter remained listed for final hearing.
The Final Hearing proceeded on 28 February 2018 for three days. At the end of the third day the matter had not yet finalised, and was adjourned to 10 May 2018 part-heard.
In the interim, the Mother filed a Further Amended Response. This document, whilst setting out the orders sought by her, also set out numerous information and annexures that would properly belong in an affidavit. Nevertheless, the most relevant part of the Mother’s Further Amended Response sought a change to X’s care arrangements as follows:-
a)the Mother have sole parental responsibility for X;
b)X live with the Mother;
c)the Father spend supervised time with X:-
until a full psychological assessment of the father has been completed and a report with recommendations for the safety of the child, including a treatment plan and parenting classes for the father, is issues and implemented.
d)in 2018 and 2019, “dependent on the medical professionals agreeing that X is no longer at risk of emotional and psychological harm”:-
i)each alternate weekend in 2018-19 from the conclusion of kindergarten or school on Friday until the commencement of kindergarten or school on Monday;
ii)for the first four consecutive nights in each of the school term holidays; and
iii)for two four-night periods in the long summer school holidays, at times to be agreed between the parties prior to 15 September in each year;
e)commencing from when X commences school in 2019, “depend [sic] on the medical professionals agreeing that X is no longer at risk of emotional and psychological harm”:-
i)each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday;
ii)for five consecutive nights in the first week of each of the school term holidays, from the conclusion of school on Friday until 6.00pm the following Wednesday;
iii)for two non-consecutive period of five nights during the long summer school holidays, to be agreed between the parties prior to 15 September in each year;
iv)if the Father fails to collect the child from kindergarten or school within 10 minutes of the scheduled collection time and has not notified the Mother of same, the Father forfeit his time with the child;
v)any nominee executing changeover on behalf of the Father be agreed between the parties; and
vi)a restraint on X coming into contact with Ms E (“Ms E”) and/or Ms F (“Ms F”), and that:-
…a protection or [sic] be in place ensuring they do not communicate with the child nor come within 200m of her school, home or father’s home when she is scheduled to be cared for by him.
The Mother also filed three subpoenas in the intervening period. These subpoenas were directed to the Father, the Suburb Q Police Station and to Ms E. Ms E is a friend of the Father, and whose child attends kindergarten with X. She objected to the subpoena filed by the Mother that sought she attend Court and give evidence, and further provide documents as follows:-
…
2. Copy of entire Whats app conversation posed in Mothers group, inc conversation fromm Ms Omeros relating to Mr G, the conflict with her ex-partner + the collection of Ms Omeros on 21/3/18
3. Copy of entire messag to Ms H by Ms E to remove Ms J from play-group Whats app list.
4. Copies of any conversations via email + on social media in which Ms E refers to Mr G + the family Court conflict.
[sic]
Ms E filed a Notice of Objection to this subpoena on 8 April 2018, on the basis that:-
- The information required is not related to the wellbeing of the child.
- The information required is made as a private matter and not a public matter.
- The information are required directly by the Respondent and not by the judge.
- I am not a party in the family court proceeding.
[sic]
The Objection to Subpoena was dismissed on 11 May 2018 during the final hearing, and some of the relevant materials were tendered as exhibits in these proceedings. The matter concluded on 11 May 2018.
It is a tedious and sometimes irrelevant exercise to list the procedural history and applications of the parties as I have done above. Nevertheless, in this case, I felt that it was necessary to demonstrate the manner in which the parties are in dispute with each other, at least insofar as the litigation has played out.
As I observed earlier, at the commencement of these proceedings, the issues seemed straightforward. As the case progressed, it became apparent that the parties’ personalities and communication style made the assessment of what might be in X’s best interests difficult. The assessment has been obscured by unrelenting allegations and counter-allegations where each of the parties seek to blame the other from their self-righteous points of view.
At the time I appointed the Independent Children’s Lawyer, I was sure that the proceedings fell within the ambit of appointment initially propounded in the case of Re K (1994) FLC 92-461, but I was unsure if an Independent Children’s Lawyer would be funded through Victoria Legal Aid due to budgetary constraints.
The Independent Children’s Lawyer has proven invaluable in this case. The Independent Children’s Lawyer and Counsel for the Independent Children’s Lawyer brought a sense of order to the proceedings. Without their able assistance, it would have been almost impossible to make sense of the history and significant issues in the proceedings.
The proposals (in summary)
The Father’s proposal at final hearing was for:-
a)equal shared parental responsibility between the parties;
b)to take X overseas to Country O to meet his family; and
c)for equal shared time with X.
The Mother’s proposal changed during the period the matter was part-heard. After an incident occurred in the intervening period, her ultimate proposal was for: –
a)supervised time between the Father and X; and
b)the Father to undertake a number of parenting style assessments and engagements, with a view to heading to unsupervised time upon those assessments being satisfactorily undertaken and engaged with.
In addition to the time applications, each of the parties had respective applications to travel with X. The Father agrees that X should be able to travel with the Mother but only on the proviso that he too was permitted to travel with X to see his family in Country O. The Mother seeks to be able to travel to see her family in the United Kingdom, however resists the Father’s application to travel as she regards him as a flight risk.
There are various small disputes between the parties which I shall deal with in other matters as those issues are discrete and simply require a decision to be made. The parties seem unable to agree on anything of significance.
Through Counsel, the Independent Children’s Lawyer provided a Minute of Orders sought by them during the course of final submissions. The Independent Children’s Lawyers proposal seeks that:-
a)the Mother have sole parental responsibility for X;
b)the Mother keep the Father advised in writing (via a co-parenting application such as MyMob) as soon as practicable prior to the implementation of any long-term decisions;
c)X live with the Mother;
d)X spend time with the Father:-
i)until the commencement of term 1 in 2019:-
1. each alternate weekend commencing on the first weekend of each school term from the conclusion of kindergarten (or 4.30pm) on Friday until the commencement of kindergarten (or 9.00am) on Monday;
2. for a period of five consecutive nights in the school term holidays;
3. for a period of five consecutive nights in each alternate week in the long summer school holidays, commencing on 28 December 2018;
ii)from the commencement of term 1 in 2019:-
1. each alternate weekend commencing on the first weekend of each school term from the conclusion of kindergarten (or 4.30pm) on Friday until the commencement of kindergarten (or 9.00am) on Monday;
2. for a period of seven consecutive nights in the school term holidays;
3. each alternate week in the long summer school holidays, with changeovers to take place on Fridays;
iii)with regard to the long summer holidays, from the commencement of the 2020/2021 long summer school holidays, in a block of three weeks, being the first half in 2020/2021 and each alternate year thereafter and the second half in 2021/2022 and each alternate year thereafter;
e)special occasion time for birthdays, Christmas, and Father’s Day;
f)both parents be at liberty to communicate with X via telephone, Skype or FaceTime one occasion per week as agreed and in default of agreement each Wednesday at 6.00pm, or such other time as X reasonably requests;
g)the parties communicate via a co-parenting application such as MyMob or eCommBook nominated by the Independent Children’s Lawyer save for in the case of an emergency;
h)changeovers occur at X’s kindergarten or school where possible and otherwise, where the maternal grandmother is available to facilitate changeover, at the Suburb S library, or if she is unavailable, through a private family contact service;
i)the parties not use any other nominee other than the maternal grandmother or a private contact service to effect changeovers;
j)until 2022, the parties be restrained by injunction from removing X from the Commonwealth of Australia without the consent in writing of the other, and provisions for such overseas travel;
k)the usual orders with respect to information and notifications; and
l)an injunction in relation to denigration, posting denigrating remarks on social media, exposing X to the proceedings and the like.
General matters
In these reasons and pursuant to section 140 of the Evidence Act 1995 (“Evidence Act”), the standard of proof is to a balance of probabilities.
In these proceedings each of the parties put a great deal of detail before the Court. At least partly this is reflective of their personality styles. As a result of this, there have been numerous facts and matters referred to by the parties. It is not possible to refer to every fact and/or matter in these proceedings and nor is it necessary to do so. These reasons are not intended to be a total account of the issues sought to be ventilated by the parties at trial. Each of the parties demonstrated a high level of attention to detail.
I have had regard to the totality of the evidence in these proceedings. If I have not referred to a particular fact or matter it does not follow that I have not had regard to it.
In these reasons a statement of fact is a finding of fact, unless it is obvious from the context that I am reciting the position of one of the parties.
The witnesses
The Father has filed numerous affidavits in these proceedings. He gave evidence and was cross-examined.
The Father also relied upon the evidence of Ms F and Ms E, who gave evidence and were cross-examined in these proceedings, as a result of a subpoena issued to Ms E for WhatsApp message conversation histories and other matters. Ms F and Ms E are friends of the Father, and their daughter T is also a friend of X’s.
The Mother gave evidence and was cross-examined. She also relied on the evidence of her father, Mr G (“the maternal grandfather”) who filed an affidavit in these proceedings, gave evidence and was cross-examined.
Dr B and Ms D also gave evidence and were cross-examined throughout the course of these proceedings.
I had the valuable opportunity of observing each of the parties giving evidence. This was particularly important in this case given the personality styles of the parties and their highly conflictual attitudes towards one another.
The Father
The Father is a superficially charming and attractive man. It is not difficult to see why he has numerous friends, and even allies, with respect to these proceedings and his circumstances generally. He presents as being social and as being close to his family, particularly X. Throughout the course of the proceedings he was unfailingly polite, and although at times exhibited frustration, was nevertheless at pains to ensure that he respected the process and the formality within the Court.
The Father is a Country O gentleman with a heavy accent. From time to time he was quite emotional and his anxiety levels were high, making him difficult to understand at times. From time to time he adopted a pleading attitude and became tearful. He seemed at a loss to truly understand that he had made any contribution to the conflictual dynamic between he and the Mother. Overall, the Father presented well in Court. However, I am satisfied that this presentation belies his true nature, particularly insofar as it concerns interaction between himself and the Mother.
Having had the opportunity to observe the parties in giving evidence and in Court (as they were self-represented litigants and therefore their interactions with the Court were greater than if they were represented), I have formed the view that the Father is:-
a)disorganised;
b)obstructive;
c)lacking insight;
d)completely incapable of shielding X from parental conflict;
e)peevish & querulous;
f)manipulative; and
g)playing games;
h)using his culture and level of emotion as a means of obfuscation.
The Father’s position was that he had experienced the Mother as harassing, especially with respect to communication surrounding X. During a therapeutic counselling session, Ms D confirmed that the Father had received numerous text messages from the Mother, coming through on his phone from WhatsApp in less than hour.
In circumstances where the Father was able to superficially acknowledge that he may have behaved inappropriately, his rationale was nearly always that he had been provoked by the Mother. Indeed, he said in relation to the Suburb K incident that occurred in January 2017, that she provoked a “huge drama”. The objective facts surrounding that incident indicate that the opposite is likely.
The Father’s presentation running the case was also symptomatic of his personality style and lack of insight into his contribution to the position of X, particularly in relation to high conflict events between he and the Mother. For instance, much of his case in cross-examination was directed towards establishing that the Mother was to blame. The Mother’s behaviour has at times been provocative and frustrating for the Father, but equally he minimises and rationalises the impact of his own behaviour on the situation.
Throughout the Father’s case, he asserted that he was the victim of unsubstantiated attack by the Mother, which had played out in numerous venues such as the Magistrates’ Court regarding family violence proceedings, and the Federal Circuit Court in terms of this litigation. His position was that he had been the subject of harassment, defamation, and systems abuse against him by the Mother. He felt, in summary, that he was under siege with the various types of litigation he was subjected to, and was having difficulty in coping with the multifaceted forum-shopping that he said the Mother was engaging in. The Father pointed out that he had been subjected to four “AVOs” in one year, which he felt were without substance.
I find that the Father has a high level of emotional dysregulation which has been exhibited in front of X. Whilst he denies that he is disorganised, he has regularly been late to changeovers, and has consistently proven that he is not able to be punctual. His behaviour demonstrates high levels of chaos and disorganisation, and even within the confines of the Court, where the Father did his best to respect the processes of the Court, it was very clear that he is a man who is querulous and ready to resort to litigation.
I shall refer to the other parts of the Father’s evidence throughout these reasons.
The Mother
The Mother’s position was that she had experienced the Father as violent, denigrating and disrespectful to her. She also experienced him as oppositional and reactive to her proposals for X, and emotionally reactive to a request from her seeking a solution. She experiences the Father as blaming her for everything in his life, and in particular the fact that he feels trapped in Australia, due to the Mother’s residence here with X.
The Mother has many complaints about the Father. I have formed the view that the Mother is highly intelligent but also has an unusually intense and pedantic personality style, prone to detailed analysis and over-thinking of some issues. Whereas the Father is chaotic and disorganised, the Mother is highly organised and forward planning. For her, this renders the Father frustrating in the extreme. It has now rendered her communication style with him demanding and insistent as she searches for solutions in a demanding and persistent way. She may not always have been like this. It is much like a ‘chicken and egg’ conundrum. Nevertheless, the Father experiences the Mother’s attempts at discussion as harassing and dictatorial, at times with some justification.
The Mother experiences the Father as almost a ‘Jekyll and Hyde’. She said she has found him to be angry and aggressive towards her in one moment, but then transforms to becoming confused as to why the Mother is not friendly towards him, with little or no insight into the impact of his behaviour.
An example of the level of parental conflict in this family is what occurred between the break in the matter when the proceedings were part heard, where the Mother unilaterally enrolled X in a new kindergarten. There seems to be a pattern in the Mother’s behaviour where she makes quite serious and long term unilateral decisions about X with no reference to the Father, which infuriates him.
The Mother uses highly emotive language when discussing what has occurred for X in this case. For instance, she talks about X being emotionally abused by the Father, and that the Mother needs to deal with the “parental alienation”. To that extent, I think the Mother has subjectively heightened responses which are not always available on the evidence. However, this needs to be viewed in light of what is a highly conflictual and difficult situation, in circumstances where the Father has engaged in behaviour that is distressing for the Mother, and which at times has been violent.
The Father has given the Mother much to complain about. The combination of the Father’s personality style and the Mother’s is, in a way, a perfect storm, which inevitably results in conflict between the parties at the highest level. This is the highly reactive and emotional dynamic between the two of them.
The maternal grandfather
The maternal grandfather, Mr G, provided sworn evidence on both affidavit and in Court. The maternal grandfather was cross-examined by the Independent Children’s Lawyer and the Father. The maternal grandfather resides in City U, London and is retired. He presented as a taciturn and direct man, leaving little doubt that he regarded the Father with disdain. He was clearly troubled by the Father’s actions, both towards himself, his daughter and X. He answered questions directly, and on my assessment, truthfully. I have no reason to doubt his evidence or the description of the Father’s behaviour that he provided. His description of the Father’s behaviour, of which he gave evidence with respect to the incident on 5 January 2017, was partly confirmed in the visual recordings that I will come to.
The maternal grandfather said that he attends Australia each year for five weeks at Christmas time. He was in Australia on Christmas Day in 2016, when a troubling and violent incident occurred, with the Father being highly aggressive and uncontained. He gave evidence in relation to this incident and I will deal with this later in these reasons.
He said that he speaks to the Mother numerous times per week by Skype.
The maternal grandfather gave evidence regarding his care of X during the period when the Mother travelled to Country A for business in … 2016.
There is no doubt that the maternal grandfather has sided with his daughter. I also observed him to be intolerant of the Father and the way that he has behaved. I find that this intolerance has an objective basis, as from time to time the Father has acted appallingly in the maternal grandfather’s presence. When giving his evidence, the maternal grandfather was from time to time aggressive and abrupt with the Father, but that does not alter my assessment of him as a witness. He came across as truthful, and in areas where his evidence is in conflict with that of the Father, I prefer the evidence of the maternal grandfather.
In making that assessment, I note that the maternal grandfather made appropriate concessions during the course of his evidence, even in circumstances where such concessions may not have assisted the Mother’s case. For instance, he readily conceded sending an email to the Father in February 2015, asking about the Father’s intentions to reconcile with the Mother. Initially he could not recall the email, however upon being shown the document, made a ready concession that he had sent it. The email of February 2015, exhibited in these proceedings, read “Ms Omeros thinks you don’t want to get back together.let her know if that’s how you feel.[sic]”. I am not sure how the Father thought that these documents would assist his case, however it does assist me in my assessment of the maternal grandfather as a truthful witness. In the typically loquacious style of the Father in response to the simple question posed by the maternal grandfather, the email elicited a lengthy response.
There is no doubt in my mind that there is little love lost between the maternal grandfather and the Father. He was at times provocative in his statements to the Father and at times had difficulty not making comments. For instance, at a point where the Father became emotional (as he often did during the proceedings) the maternal grandfather said words the effect of “you put the tears on again”. However, the maternal grandfather has witnessed three violent events which I find have occurred, in circumstances where he attends Australia for only five weeks a year. In my view this is quite telling, and is suggestive that the Mother’s position that she is subjected to ongoing abuse in a violent way by the Father is more likely than not.
Dr B
Dr B swore an affidavit in these proceedings on 8 February 2017 that annexed his Family Report dated 9 January 2017. Dr B completed his assessment on 13 December 2016. Dr B completed an individual assessment with both the Mother and the Father and observed each of them with X.
The Mother was described by Dr B as initially presenting as “rushed, somewhat abrupt and slightly prickly emotionally” and “matter-of-fact”. Dr B said that while she presented with significant concerns about the Father, she painted an “overall positive picture” of the need for the Father to be engaged in X’s life.
Dr B said that the Mother is a person who is:-
…organised, straight-forward, determined and concerned about the child’s welfare and not excessive in relation to issues of control, and presents as genuine and concerned about the child. There is no evidence of a history of a psychological disorder.
The Father was described by Dr B as tending to be disorganised, over-inclusive and “emotionally labile and tearful at various points…when discussing a wide variety of issues”. Dr B observed him to have a tendency towards “emotionally focused problem-solving”. Dr B said that the Father tended to tell stories and anecdotes rather than summarising his concerns. I made similar observations of the Father in Court. Dr B also said that the Father presented as being “emotionally often in turmoil” whose life sometimes presents as being “in chaos”, and although attempting to appear externally positive, was “vague and at times circumspect”.
At paragraph 45 of his report, Dr B went on to describe the Father:-
Mr Fullmer presented as emotionally very labile and somewhat uncontained, despite statements that he had resolved issues. He was tearful and at times unable to focus on the parenting issues due to a focus on relationship issues. At other points, he presented as angry and impulsive and presented as cognitively scattered. He remained and appears to be resentful and angry about his ex-partner. He stated that he accepts being in Australia but this presents as a veneer somewhat. Additionally, he is generally disorganised, and with his daughter he presents as somewhat uncontained with rather poor emotional boundaries. I note in making the above comments, recognition and awareness of cultural differences were taken into account.
Dr B made certain observations about the personality styles and functioning of the parents during the course of a psychometric assessment with each of them, although he indicated that his clinical observations prevailed in terms of his overall assessment. In his clinical considerations, he observed:-
a)the Mother “presents a picture of a person who does not present with psychopathology or personality difficulties”; and
b)the Father demonstrated:-
…some elevated symptomatology and some lack of emotional control. There are some general depressive symptoms, as well as somatic symptoms. Additionally, there is some cognitive dysfunction associated with emotionality. There are some emotional difficulties related to stress and anxiety, some thought dysfunction related to ideas of persecution, as well as behavioural dysfunction with excitability and some hypomanic activation…
…The critical items are in the area of Ideas of Persecution which present as unusual although may fit more as a personality feature rather than a psychiatric symptom.
The profile shows an individual with anxiety and depressive symptoms, with some vulnerability towards ideas of persecution and a tendency towards hypomanic activation and excitability, with at times, possible over activation/aggression and grandiosity.
With regard to the observations made of X with each of her parents, Dr B reported:-
a)in relation to the Mother, that she and X greeted each other “warmly” in reception, and played together with a variety of toys that X liked while she ate lunch at the same time. Dr B observed that X had very sound development at age 2 years and 11 months, and that she and her Mother were able to play “in sync” with each other. He also observed that attachment and parental skills were well established, that the Mother was very child-focused but also “very relaxed” with her, was “very organised” and “appeared to understand what X wanted to do”; and
b)in relation to the Father, that he entered the play room after embracing X in the waiting area. He was reported as being “extremely affectionate, he kisses X over and over (multiple times) and tells her that he loves her over and over”. Dr B observed that the Father presented as being anxious, that the amount of kissing X was “unusual” and that he continued to tell her “over and over that he loves her”. X and the Father played “creatively” with toys and read books together, and Dr B observed sound and well established parental skills and attachment. The Father continued to be “extremely affectionate at all points in the interaction” and his parting with X was “extended and drawn out over a long period, in a fashion that makes leaving difficult”.
In his conclusions, at paragraph 58 of his report Dr B summarises his observations of the Mother as follows:-
…Mr G presents without any marked psychological difficulties based on the evaluation. She presents a picture of a person approaching the parenting circumstances in a relatively reasonable fashion and appears to be positive about the relationship between X and her father. Nevertheless, she presents as besieged by the father in her involvement in co-parenting and presents as affected by the conflict in the parenting relationship. She presents as stable emotionally and interpersonally.
At paragraph 59, Dr B summarises the Father as follows:-
In contrast, Mr Fullmer presents as a man with marked emotional lability with basic underlying personality difficulties. He presents as passionately devoted to X but presents with difficulties with emotional boundaries and appears to engage in emotion based problem-solving at times. It is questionable whether he has resolved the end of the relationship with the mother, and this appears to be affecting his parenting involvement with X. His proposal to take X overseas for six weeks at a stretch based on her current age (aged three years) appears to be parent-centred rather than child-centred. Overall, his presentation in relation to the parenting issues appears to be dominated by this factor, i.e. he presents with a rather parent-focused proposal.
Dr B suggested that the most likely appropriate arrangement for X would be that she remain in the primary care of the Mother and spend three to four nights per fortnight with her Father in two blocks. He also said that holiday periods should be no longer than two weeks given X’s young age, and that it was unlikely to be age-appropriate for X to spend six weeks with her Father in Country O.
Dr B’s formal recommendations were as follows:-
(1) X should spend four nights with her father over each fortnight across two time periods, with one week having an arrangement of Friday pm to Monday am, and in the other week, Thursday pm to Friday am or similar.
(2) Holiday periods should be for approximately two weeks and moving up to three weeks by the end of 2017. Overseas ravel for long periods without X being able to have contact with the other parent should not occur until she is more independent, such as age 8-9. Around the same time/age, time could extend to five days with the father per fortnight in one block of time, and nine days with mother, assuming positive progress in the relationships.
(3) The parents would benefit from parent coordination, such as with psychologist Ms C (Tel …). The father may also benefit from assistance via this clinician to reduce the conflict in the parenting relationship.
Dr B also made various general recommendations, including that X not be exposed to denigration of the other parent, a communication book be utilised by the parties, that X be encouraged to have a relationship with both parents and that the parents ought to facilitate this, and X not be used as a “go-between” with her parents.
Dr B gave evidence and was cross-examined by the parties.
Dr B did not regard a week about arrangement as appropriate. The reasons for this were the ongoing lack of communication, and the parental conflict. He also referred to negative feelings regarding the other parent, lack of agreement around basic issues, lack of trust, the Father’s impulsivity, X’s history of care and her age. Dr B was of the view that X was too young to negotiate a half-time arrangement as a result of these issues.
When referring to the Mother’s proposal, that the Father ought to have supervised time until the completion of some personal counselling, a report as to X’s safety, that he undertake some parenting courses, Dr B was of the view that supervised time was not warranted. However, in looking back to 18 months earlier when he prepared the Family Report, he conceded that he had thought at that time that the communication would improve and the conflict would abate. This had clearly not occurred by the time the matter came on for final hearing.
Dr B had concerns about the Mother’s proposal for supervised time. Dr B did not think that further assessment of the Father was warranted, on the basis that it was unlikely to show anything different, as his personality, with all its deficits, is what it is. In the sense that it is more of the same, Dr B did not think there was a great deal of benefit for further assessment. On the question of a basis for supervision, based on what Dr B saw, he said that supervision was not necessarily required at that point, however he was of the view that based on what he was being told at final hearing, there may need to be more distinct boundaries around parenting arrangements.
Dr B thought that the Father’s inability to rein in his emotions with respect to X was problematic, and goes hand-in-hand with his reaction and his attitude to the Mother. He said that this remained a concern, and that it impacted on X’s well-being. However, Dr B noted that the observations between the Father and X and his actions, reactions and interactions with her on a parenting level caused him less concern, although he did concede that he had less information about those issues on more recent basis.
Dr B did not support further assessment of the Father as sought by the Mother.
In respect of whether there would be any benefit to the Father in undertaking therapeutic counselling going forward, Dr B thought that unless such therapeutic counselling was tied to his time with the child and, if it had not occurred as at the date of trial, there may be little benefit. It is suggested that if the family was going to benefit from therapeutic counselling then it should have occurred by that date. I concur that the emotional lability of the Father and the difficulties in his personality are far too entrenched to be dealt with at this stage. I therefore approach this matter on the basis that the Father’s personality style is likely to continue with, as Dr B puts it, “more of the same” moving forward.
Dr B thought that four nights per fortnight with her Father would be developmentally appropriate for X, and that she could cope with that period. I asked him about the idea of X’s time with her Father being in a single block, that is, nothing in between. Dr B thought that X’s developmental stage would tolerate a period of nine days away from her Father, and that if this had the potential to decrease parental conflict, then that might improve the situation for X. He thought X could maintain her relationship with the Father internally. He queried whether there should be some short time in the alternate week between weekends, however I am of the view that if there is a complete separation of the parents, then the possibility of conflict will decrease for X. Dr B thought that if the Mother was assessed as being committed to promoting and nurturing the relationship between Father and X, then that would be an ameliorating factor for the long period of time away from him, if a block period of time were to be imposed.
The other benefit of the block time is that it may provide the Mother with some respite, which would in turn enhance X’s welfare. The Mother presented as worn out and worn down. Continued conflict will exacerbate the Mother’s already strained parental resources. In my view, parenting should be simpler for the Mother. By doing that, circumstances should improve for the Mother and she will be more emotionally stable. The worst outcome for her in this case is that the Father may increase his time. Dr B said that the parallel parenting approach, even though not ideal, would probably assist in this case, as it has the potential to reduce exposure of X to conflict. Given the Mother’s need to feel in control of issues regarding X and the Father’s chaotic personality style, I have formed the view that the Father’s time with X should be limited, and the Mother’s role as primary decision maker more defined in an endeavour to minimise the potential for conflict.
There was no dispute by Dr B that X still had a proper attachment to the Father. Indeed the Father made the point, which I accept, that at the time Dr B observed X with the Father, she had been absent from him for a period of 16 days, under contentious circumstances where the Father alleged that the Mother had breached orders for X to spend time with him.
Dr B said that generally speaking in cases with younger children, shorter periods of more frequent time may be preferable. However, in cases where there is high level of conflict, such a result is contraindicated.
Dr B commented that although it was asserted by the Father that the Mother lacked commitment to supporting the relationship between he and X, that was not his impression of the Mother. His impression was that notwithstanding the difficulties that have taken place between the parties, the Mother had remained committed to X spending time with the Father and maintaining a good relationship with him.
The Father suggested to Dr B that he had electronically recorded every single changeover for X’s time between he and the Mother in the last three years. Whether that is true or not, the Father has certainly been doing some recording. Dr B was concerned about the recordings, and said that it suggested that it underpinned the need for a parallel parenting arrangement. He thought it was appropriate that changeovers be school pickups.
Dr B thought that the confrontation and conflict pointed to the need for an alternative parenting approach. Dr B told me that he took the Father’s language skills into account when assessing the results of psychometric testing, and in any event, relied more on his observations than the psychometric testing that occurred.
Dr B did not perceive the level of affection directed towards X by the Father as being necessarily a problem per se. He did not regard it as an issue of concern. In fact, he thought the Father being very affectionate with X may have been a strengthening aspect of the Father’s relationship with her.
Dr B recognised that events may have taken place which made the recommendation for overseas travel inappropriate. I regard the overseas travel as a decision for the Court in this case.
He said clearly that if X is drawn into the conflict and it impacted on school, that this was a bad thing. Dr B thought there needed to be clarity around big issues such as X’s education. This question raises issues surrounding parental responsibility. Dr B thought the selective mutism exhibited by X could be looked at as being anxiety based, and that it may be X’s response to the conflict. He said that it highlighted the need for X not to be put in the position of having divided loyalties.
The Mother asked Dr B about whether or not the Father recruited others in his endeavour to prove his position, and that therefore the conflict that X was exposed to is not just within the family unit but also extends to other aspects of her life, including family friends. Dr B indicated that the effect of this on X, in the event that they are placing X in the position of divided loyalties by denigrating, raises much more serious questions about conflict. If the issue between the parties was conflict alone, the parallel parenting approach tends to work. However, if there are denigration issues or other similar practices that the child is exposed to, then Dr B was of the view that was more serious. Dr B said this would raise the need for an alternative approaches to X’s care.
Ultimately, Dr B concluded that X needed to be excluded from the parental conflict, able to move between the two parents appropriately, and that the parents support of each other’s relationships needs to be established. I agree, but the real issue is how that might be achieved for X. Dr B was a professional and compelling witness and his evidence, whilst somewhat dated, has assisted me in assessing X’s best interests. His comments regarding the parties’ respective presentation accord with my own observations.
Ms D
Ms D was called as a witness of the Independent Children’s Lawyer. She was engaged by the parties to undertake reportable therapeutic counselling. An affidavit on her behalf was filed on 21 February 2018 annexing her curriculum vitae and her report dated 19 February 2018.
Ms D saw the Mother on eight occasions between 24 August 2017 and 19 February 2018. She saw the Father on two occasions, namely 18 December 2017 and 2 February 2018. She indicated in her report that there was no consent by the Father for her to consult with X, and therefore X was not seen by her.
It was the Mother who sought therapeutic intervention, and ultimately obtained an order to compel the Father to attend, which was obtained on 3 October 2017. This case is an example as to how compulsory therapeutic counselling is not as useful or effective as a mutual commitment made by parents to engage for change.
Consistent with her position in these proceedings, the Mother described the relationship with the Father to Ms D as “turbulent aggressive and conflictual in regard to both safety issue and communication”. Of the Mother, Ms D reports as follows:-
Throughout her sessions with the therapist she referred to her level of emotional state when involved with Mr Fullmer. She sees how he is exerting his influence on X, distressing her, demanding his “right” and his constant lack of compliance with court orders, times or pick up, verbal abuse and control. She experiences this behaviour as coercive and controlling and as family violence.
She referred to the many messages, emails and miscommunication as deliberately unsettling her and how this creates the inability of her and Mr Fullmer to engage in a productive conversation. In regard to X’s intrusts. [sic]
She sees Mr Fullmer as having mental health issues as referred to Dr B’s report as illuminating the challenges and compromised behaviour, thought processes that contribute to his behaviour. [sic] She feels controlled by him because she sees her requirement to consult with him about the arrangements for X, e.g. which kindergarten she is to go to, vaccinations, etc., as opportunities by Mr Fullmer to undermine her parenting, to create difficulties in supporting X’s education and predictable lifestyle etc.
The session focussed on her managing her response to such control and to set some boundaries as to the level and need for communication. She is often distressed by her experiences. She has an underlying fear of this pattern of behaviour shown by Mr Fullmer. She believes that this behaviour is undertaken to intimidate her to give in to his need to go to Country O with his daughter. She sees that he has the ability to coerce his own family in Country O to support him and to hold on to X should X be allowed to travel to Country O with her father.
This is Mr G [sic] strong fear that if Mr Fullmer is allowed to take X from Australia that X will never be returned.
The Mother complained to Ms D about the verbal abuse that occurs in front of X changeovers, the verbal and intimidating behaviour towards the Mother and X by the Father and a fear that the Father is infantilising X. These complaints are largely consistent with her evidence. The Mother also complained with respect to the Father’s controlling behaviours, such as refusing to sign documents such as enrolment forms as a form of violence and coercive control, which inhibits her capacity to make parenting decisions for X.
Ms D further reported in relation to the Mother:-
Her frustration at the inability of the parents to make joint decisions was evident in her distress and her perception of Mr Fullmer. She has cited many instances of the parents’ inability to make joint decisions for X. Rather the communication is fraught with accusations, denials and unhelpful discourse. This level of manipulation and control as identified by Mr G as impacting upon her ability to parent X.
The Mother reported to Ms D that she had no confidence that the Father would change his behaviours at changeover:-
…She evidenced this by a recent email whereby Mr Fullmer was late to collect X from kinder and another mother offered to collect her. During this lateness, Mr Fullmer allegedly appeared and demanded X causing stress for the other person. If this behaviour is accepted, then Mr G sees that Mr Fullmer’s behaviour is escalating and is more uncontained as he cannot discriminate his behaviour in the different environments.
Mr G is concerned that without some monitoring of Mr Fullmer’s mental health, which she sees as deteriorating, that X is at risk. Given the experience of Mr Fullmer “spitting” at her at changeovers, pushing the pram into he r stomach with X in the pram at changeovers in the past she believes that his anger is uncontrolled.
Ms D observed the Mother’s evident distress and her concern that the Father’s anger was directed towards finding ways to punish her, which may place X at risk.
Doing the best I can, some of the accounts provided by the Mother to Ms D seem to be exaggerated or a misstated account of incidents which have occurred. Others appear to be an accurate account of matters on an objective basis.
When assessing Ms D’s evidence, I take into account that the Mother may be somewhat histrionic when recounting events. However, given the Father has become violent and controlling at times, I accept Ms D’s professional opinion of the Mother’s subjective experience of the Father and how it impacts on her personal functioning. This is of particular importance as the Father is incapable of change, seems unwilling to truly acknowledge he is at least partially responsible for conflict, and is unwilling to truly engage in any therapy or educative processes which might assist. Therefore, absent any willingness by the Father to change, the Mother is likely to continue to experience the parenting arrangements as intolerable, which in turn must ultimately diminish her parenting abilities.
While the Mother has exhibited a level of resilience to date, it would be unreasonable to expect her to continue to remain in the situation as is.
In the two sessions that the Father attended upon Ms D, she reported as follows:-
In the 2 sessions Mr Fullmer attended, he depicted similar traits of emotional lability, lack of containment and a cognitive thought disorder His sequential processes were compromised at times. The information presented was contradictory especially when coupled with a tearful response. He was intense and determined to present his view in a forceful manner.
However, in the second session Mr Fullmer showed poor capacity to hear strategies, questions and to articulate the depth of his feeling about his former partner and X.
Once settled Mr Fullmer could engage in a conversation that showed intelligence and accomplishment in his own field of work although it [sic] he did not elucidate if he was currently employed. He was seen to have much underlying grief about his feelings that he now felt trapped in Australia. He showed a resignation that he would be remaining in Australia for the duration of X’s life.
Mr Fullmer, from the two sessions, still harbours affection for Mr G coupled with the opposite feelings of anger and frustration. This combination of emotions was often evident during the two sessions. He spoke of saying to Mr G that he “is not leaving you (her) because I don’t love you, I am leaving you because I don’t trust you”. He spoke of how he experienced Mr G as “mean”. He said that he likes a person who has a “strong character” and Mr G was fulfilling that need. However, he was unable to recall, or discuss the reason behind his lack of trust or the relationship deteriorating. He sees himself as withdrawing from the relationship and that he made the choice to leave.
Ms D described most of the sessions with the Father as focusing on his underlying grief associated with his circumstances in being trapped in Australia. She observed him to avoid or not focus on practical issues such as how to improve the conflict areas between the parties. The Father blamed the Mother for the current issues and referred to various supports he had received from the Men’s Behaviour Change group, X’s mother’s group and the police. He alleged that the Mother “baited him” with her “lies”. Ms D observed that the Father’s reports were accompanied by various emotions of anger, frustration and sadness, and his perception that the Mother “hates” him and “makes mountains out of molehills”.
The Father indicated his desire to take X to Country O. Ms D indicated that the Father did not show any understanding of child development and there was a “paucity of imitation or understanding” of X’s level of need both emotionally and psychologically. She said that the Father was focused on his own feelings about the Mother, and alleged that it was the Mother who was “bullying and intimidating him to engage in what she desires”. Ms D indicated that she had a superficial view of the functioning of the Father after two sessions with him. I take that into account although through the two professional witnesses there are consistent accounts of the Father’s presentation.
In conclusion and in her report Ms D reported as follows:-
a)the Mother had always attended, engaged and was able to consider her issues;
b)the Father had attended on two occasions, and she could not within that limited scope identify the potential for change in the Father;
c)the Mother’s decision to stay in Australia and not return to Country O with the Father may have “propelled the current disharmony and the escalation of blame, disorder and maladaptive behaviours”, culminating in the parents’ “inability to communicate” and to “see events from a polarised view”;
d)the Mother has experienced the Father’s behaviour as “intimidating, controlling and abusive” and she is concerned about X’s exposure to this and the impact this will have on X’s emotional and developmental health;
e)the Father sees the Mother’s applications to the various courts as “vexatious and controlling” and designed to destabilise him;
f)the Father externalises blame to the Mother;
g)the high conflict in this matter is unlikely to abate;
h)the Mother has high anxiety about the behaviour of the Father who she sees as violent and controlling;
i)the Father presented as adamant that he will not relinquish to any of the Mother’s demands, and denies his contribution to such difficulties; and
j)neither parent came across as being able to soothe X in the stress of the described behaviour at changeovers.
Ms D attended Court and was cross-examined by the parties and the Independent Children’s Lawyer.
Under cross-examination, Ms D confirmed that it was a very difficult for each of the parties to focus on the needs of X given their own individual issues.
Ms D described communication style between the parties as a dynamic of the Mother telling the Father as to what should happen, with the Father then feeling resentful that he has been told what should happen and being resistant to the suggestion being made. In this sense, the communication style becomes a one-way communication with no cooperation and resistance to the other side, regardless of whether or not the suggestions are sensible. Ms D described this communication style as maladaptive which limits the capacity for productive conversations. I agree, and through the volumes of material presented to the Court, this maladaptive communication style continues to be a feature.
Ms D confirmed that she had sought both parents’ permission to see X to look at the impact of the maladaptive communication. However, the focus of both adults was about each other and the ‘negative lens’ through which they view the other.
Ms D thought that in order for the parents to exercise equal shared parental responsibility for X, it needed to be clear who had responsibility for what.
Ms D was unable to say that therapeutic counselling on an ongoing basis would assist the parties. She did say that in the event that therapeutic counselling was ordered, that changes would be required on both sides. Ms D said that within the numerous sessions that she had with the Mother, the Mother had exhibited an ability to make some changes, however the limited nature of Ms D’s interaction with the Father rendered her unable to make an assessment as to whether the Father was in fact capable of change.
In terms of the Father, whilst Ms D observed that he was able to have insight into his position in Australia now, his insight into his contribution to the conflict between the parties was limited, and she thought that each of the parties showed a propensity to position themselves. She felt that it was unlikely that their respective positional stances would change in the near future, but she felt that the behaviour around the other party’s position was the most important issue, namely being able to accept and acknowledge that the other party has a different position to them.
Ms D indicated that in terms of whether or not the Father could be considered a flight risk, in the event that he is permitted to travel overseas with X. She said that things such as lack of containment, conflict, a sense of entitlement that he should be able to do whatever he wishes and his rejection of the Mother’s perspective were significant issues. Essentially, if the Father continued to be introspective and looking after his own needs he may find an ability to justify anything, which increases the risk of flight.
Ms D confirmed that the Father was aggrieved during the course of the counselling at the Mother having initially agreed to return to Country O to live but had reneged on her agreement. This contributed to the Father’s feeling of being trapped in Australia.
In the event that the Court was minded to allow the Father to take X overseas, Ms D suggested that the Mother’s levels of stress and anxiety would be so great that she would need to travel as well so that she was in Country O at the same time.
In essence, Ms D saw X as being the modality through which the parents continued their conflict. She thought that each of the parties were energetic in their positions to maintain their concerns and their positions in their relationships with X.
Ms D observed that the Mother reacted to the positions and experiences of the Father. She indicated that she thought that as time went on, the Mother would become more reactive and frustrated with the Father and his actions.
Ms D thought that in terms of minimising X’s exposure to parental conflict, which was likely to continue unabated, the following may assist:-
a)reducing X’s physical exposure to her two parents together would be warranted; and
b)minimising the opportunity for each of the parties perceived allies to come into contact with each other.
Given the high conflict in this matter which has continued unabated, Ms D was asked her opinion on whether or not equal shared care could be supported in the circumstances of this case. She was prepared to make this assessment even having observed only the parents, and not having the opportunity to observe X. Ms D did not think that the parties were candidates for equal shared parental responsibility or equal shared care. Nor do I.
Ms D suggested that the electronic application ‘OurFamilyWizard’ had the potential to improve the relationship between the parents but with conditional optimism. She felt that it was not so much that the message being communicated was offensive, but rather the reaction to such messages and the oppositional way it is received which is the problem. Thus Ms D thought that although the ‘OurFamilyWizard’ application was worth trialling, one should be cautious in assuming that it will be the panacea to the conflict and entrenched dynamic of high family conflict in the family. She did however think that it was worth trialling in order to endeavour to assist the parties. Although it may not be the only tool which assists the parties in moving forward in this matter any additional adjunct to a system is worth a try if only in order to try and reduce X’s personal exposure to ongoing family conflict.
Complaints by the Mother against the Father as put to Ms D include:-
a)the fact that X continues to wear a nappy to bed at the Father’s home, in circumstances where she had been weaned of the use of her nappy at the Mother’s home many months earlier;
b)a complaint that the Father co-sleeps with X whereas at the Mother’s house X has her own bedroom. The Mother suggested that the Father was infantilising X and garnered some support for that proposition from Ms D, who suggested that may be an explanation, but may also be a lack of knowledge on the Father’s part about child development;
c)the Mother experiences X as unsettled when she returns from the Father’s home, and that there may be a night or two of bedwetting until she is back into her normal routine within the Mother’s home. The Mother suggests that such occurrences may suggest that she is under stress at the Father’s home, and again, she had some support in that proposition from Ms D;
d)the Mother suggested that the Father blames her for everything wrong in his life. She is concerned that with the effluxion of time that blame may shift to X personally, particularly because the Father feels trapped in Australia. She is concerned that this may change the dynamic in due course between father and daughter. Ms D suggested that if the Father denigrates the Mother to X, then as X gets older she may object, and that may contribute to a change in the dynamic;
e)her concerns that X is not permitted to Skype or telephone the Mother when in extended periods of time in the Father’s care and had complained to her that she missed her Mother. Ms D agreed that in those circumstances X should be provided with a sort of keepsake, such as a photograph of her Mother in her bag. The Mother is concerned that long periods of time are contraindicated because of X missing her Mother. The Mother complained that the Father was angry if X looked at the photo of the Mother; and
f)the Father is criticised by the Mother due to chronic lateness which seems to have some objective basis in reality in terms of the evidence in this case.
Ms F
Ms F and her partner Ms E provided the Father with caregiving assistance for X. That has been arranged between the Father and these witnesses and has not included the Mother.
The Mother is opposed to these witnesses caring for X on the basis that she feels that they involve both X and their daughter T in denigrating the Mother, which in turn has an impact on the children. For instance, the Mother suggests that Ms F’s daughter has come to her and said words the effect of “is it true that you hate Mr Fullmer” and “my mummy does not like you”, thus exposing both X and her playmate to the parental conflict between the parties.
Ms E
Ms E is a friend of the Father and is involved in X’s mother’s group. She is in a relationship with Ms F, and their daughter T is friends with X.
Ms E has a statutory declaration attached to the Father’s trial affidavit filed on 13 February 2018. She adopted this statutory declaration as her sworn evidence prior to the commencement of cross-examination. In this statutory declaration, she sets out the events of an incident which occurred on 25 January 2018:-
a)Ms E was asked by the Father to effect changeover for X at her home, as the Mother could not effect changeover at Berry Street in Suburb R and still attend a school morning tea induction at 10.30pm and the parties could not agree on another alternative;
b)Ms E agreed and sent a text to the Mother informing her that it was okay for changeover to occur at her home. The text message sent at 9.02am read “Hi Ms Omeros it is no problem for you to come pick up X here at 9:30. Is it okay for you” to which the Mother replied straight away “Ok I’ll be there at 9:30”;
c)the Mother arrived just prior to 9.30am and parked outside Ms E and Ms F’s home. Ms E texted the Father at 9.27am saying “Ms Omeros is here” to which the Father replied straight away “1 minute”;
d)Ms E came into the front yard to tell the Mother over the fence that the Father was a minute away. The Mother told Ms E that she was calling the police, and despite Ms E reassuring her that the Father had nearly arrived, the Mother did not answer her and continued to call the police. Ms E texted the Father at 9.28am saying “She is calling the police”. Ms E said that she did not have a further opportunity to talk to the Mother, but that she looked angry rather than fearful. The Mother’s reaction seems to be unnecessarily extreme and reactive;
e)approximately 30 seconds later the Father arrived and parked in the driveway of Ms E’s home. Ms E came to the driveway and then to the street where the Mother asked her to confirm her address, which she did;
f)Ms E returned to the Father and told him to wait in his car and she would bring X over to the Mother. The Father agreed to this and thanked Ms E. She took X from her car seat and collected her bag, and walked her over to the Mother. The Mother was still on the phone and took X without saying anything;
g)the Father did not leave his car and said he had no intention of doing so. He drove off straight away and the Mother proceeded to take photos of his car leaving the area. Ms E said that she still appeared to be angry rather than scared;
h)Ms E said goodbye to X and returned inside her home. The Father texted her at 9.31am to thank her for executing the changeover. The Mother left the property at this time without saying anything further to Ms E;
i)Ms E was courtesy copied into an email from the Mother to the Independent Children’s Lawyer at 10.24am that same day. That email reads as follows:-
Dear Mr Lampe. Today is just further example of the need for the intervention order. Mr Fullmer has done everything he can to get face-to-face time with me including it seems build alliances [sic].
Mr Fullmer did not drop the child off between 9 and 9:15 as agreed with him and the other parent.
I was not informed that the child was not dropped off as per the agreement and turned up at 9:30 as planned.
When I got out of the car X’s friend’s mother was looking over her garden wall and informed me that he was not here and that I did not need to call the police. I was not invited in where I would be safe. I remained on the street.
I do not believe i am safe with Mr Fullmer and there is a history and an intervention order for reason [sic]. I called the police.
Please find attached a photo of Mr Fullmer taken at the house and the police call details.
[photo of the street featuring a car and a note pad with notes of time and dates]
Mr Fullmer left when I was on the phone.
…
j)Ms E disputes that the Father tried to get “face-to-face” time with the Mother as he did not leave his car and appeared to have no intention of doing so. She said he arrived at 9.28am and left at 9.30am without talking to, seeing or looking at the Mother;
k)Ms E disputed that the drop off time of between 9.00am and 9.15am as stated by the Mother was agreed. She attaches correspondence to that effect, including an email of that date from the Mother to the Father at 8.58am, which says:-
If T’s mums agree I will collect her there. But they must call me to confirm. You must drop her there at 9am and leave by 9:15. If I see you in the vicinity After 9:15 I will Call the police. I will collect her at 9:30.
[sic]
I note that the Mother allowed the Father only two minutes to gather X and her things and arrive at Ms E and Ms F’s home. Whilst the parties live in close geographical proximity, the reality of this being possible is very slim having regard to the Father needing to ensure that X was ready for changeover;
l)Ms E disputes the Mother’s position that she was not invited into her home where she would be “safe” or that she felt unsafe in this situation, asserting that the Mother was acting in a manner where she appeared to be angry rather than fearful; and
m)the phone call made to the police as noted by the Mother in her note pad entry contained in the email sent to the Independent Children’s Lawyer occurred at 9.28am, not 9.34am.
At the present time, X has an existing meaningful relationship with both of her parents and derives benefit from those relationships.
The parties agree to the concept that X should have a meaningful relationship with each of her parents. However, the parent’s conflictual relationship presents an obstacle. X has had a meaningful relationships with her parents to date, which she has enjoyed. She has a close relationship with each of them and appears bonded to each of them as described by Dr B. There is some suggestion that X’s relationship and exposure to conflict is impacting in other ways upon her and I refer specifically to the selective mutism that the Mother referred to. Nevertheless, I am satisfied that it is in X’s interest that she continue to have a meaningful relationship with both of her parents.
In weighing how X should have should have a meaningful relationship with both of her parents, I must give greater weight to the primary consideration of the need to protect her from physical or psychological harm, from being exposed to abuse, neglect or family violence, and I do so.
I am satisfied that it is not possible to protect X from exposure to family violence without keeping the parents well separated from each other. The Mother’s suggestion as to the way to do that is to have the Father spend time with X on a supervised basis until he does numerous courses and obtains education. I am not satisfied that the Father has any capacity to change. In that sense, it is difficult to see how supervised time, courses and education will improve X’s position in any meaningful way. Rather, I am of the view that ordered and regimented time is the best way to support X in moving between her two parents and keeping them separate. In my view, changeover occurring from school to school is the most effective way to achieve that, and otherwise having a nominee effecting changeover where the school is not appropriate. Such a nominee could be the maternal grandmother or a paid supervisor if necessary. However, this proposed regime is not without some concern to me, in terms of the Father’s seeming inability to be anywhere on time. I will make it clear in the orders that I make that there will be consequences for the Father if he is unable to make himself present for changeovers at the requisite time.
I am satisfied that an order for X to see her Father on a reduced basis of every second weekend from Friday to Monday will at her age and stage of development provide her with a meaningful relationship with her Father (although not optimal), in a way which best protects her from the parental conflict and exposure to family violence.
Parental responsibility
Section 61DA of the Act provides that when making a parenting order I must apply a presumption that it is in the best interests of X for her parents to have equal shared parental responsibility.
This presumption does not provide a starting point about the amount of time or communication that X is to have with her parents.
The presumption that it is in the best interests of X for her parents to have equal shared parental responsibility for her does not apply in the circumstances applicable to X, namely where there has been family violence.
I am quite satisfied on the evidence that the presumption is rebutted. It would not be in X’s best interests for these two parents, given the history of their co-parenting relationship since separation, to be expected to communicate, consult and reach joint decisions about X. I am quite satisfied that the Mother has the capacity to appropriately make decisions about X by herself that are in X’s best interests. Requiring her to consult the Father on any such decisions and to negotiate a joint outcome might compromise her capacity to provide the proper care for X.
In this case, the Father has engaged in family violence and controlling behaviour as discussed, which has been violent, threatening and has sought to control and coerce the Mother and others. Examples of the Father’s behaviour include:-
a)the Christmas Day incident;
b)the Suburb K incident; and
c)the 15 January 2016 incident between the Father and the maternal grandfather while the Mother was travelling to Country A.
Having regard to the evidence of Ms D and the Mother, I am satisfied that the Father’s behaviour has caused fear on the part of the Mother. I am satisfied that the fear caused to the Mother has manifested itself in numerous ways, including but not limited to a tendency to jump to conclusions as to the Father’s intentions, and a propensity to be on guard. I am satisfied that not only is the Mother’s fear subjectively held by her, but also that there is an objectively reasonable basis for her feelings, based on my findings.
I am also satisfied that the Mother has engaged in behaviour which has been aggressive. She has been provocative and unnecessarily demanding at times, and she exposed X to a violent incident between herself and Ms F which was unnecessary and reactive.
Even if the presumption of equal shared parental responsibility applied in the case of X (which it does not), such presumption may be rebutted by evidence that satisfies the Court that it would not be in X’s best interests for her parents to have equal shared parental responsibility for her. In X’s case, and for the reasons set out previously, I am well satisfied that it is in the bests interests of X to allocate parental responsibility to the Mother.
Not only is there no prospect of these parties being able to jointly make decisions for X, the actual process of attempting to make cooperative and joint decisions is one which provides fertile ground for the conflict between the parties.
Ms D described the communication style of the parties as dysfunctional. Having observed the parties in Court, read their affidavit material and heard their witnesses, it is clear that there is little upon which they agree. Their negotiation is fraught and there is little by way of compromise. They both perceive each other as being controlling and difficult to deal with. This is a characteristic of their high conflict relationship. In my view, these parties are poor candidates for genuine cooperation and joint decision making, and I predict that there will be conflict surrounding all manner of decisions that need to be made with respect to X. Their relationship is competitive and each of them have felt controlled and restricted by the intransigence of the other parent. To some extent, there is evidence to suggest that there may be merit in each of their claims. However, this does not ameliorate the effect on X. Regardless of whether one party is right or wrong, justified or unjustified, a decision must be made as to who will exercise parental responsibility for X. Choosing one party over the other to exercise parental responsibility has a potency which is unfortunate in this case. The Father, who will not exercise parental responsibility, will feel marginalised and will perceive this result as manifestly unfair. Nevertheless, I am well satisfied that there is no other option available to ensure that X moves smoothly through the rest of her childhood.
Having regard to the personality styles of the parties and my impression that the Father’s personality is disorganised and chaotic (corroborated by the observations of the professional witnesses), I am of the view that the Mother is better equipped to exercise parental responsibility for X. She will also have the primary care of X and thus she is the natural choice to exercise parental responsibility for her. I am well satisfied that the Mother has the capacity to make child-focussed and appropriate decisions. With the benefit of sole parental responsibility, I would hope that some of the Mother’s reactive impulses may abate.
The sole parental responsibility order should however be tempered. I shall make it clear that it does not include changing X’s name, overseas travel outside of the confines of these orders, and nor does it include moving her residence to a distance farther away from the Father, which would greatly inhibit X’s right to enjoy a meaningful relationship with her Father pursuant to these orders. Rather than giving the Mother sole parental responsibility with respect to discrete issues, I propose to limit the way she exercises that responsibility by excluding those three issues. It may be a subtle point but given the history of this matter it is important for the Father to understand that whilst he has an important role to play in X’s upbringing, that any notion that he is entitled to quibble with the Mother’s decisions with respect to school and medical issues and the like are not within his domain.
The Mother’s breaches of equal shared parental responsibility
There have been numerous incidences of the Mother making unilateral decisions that have resulted in a breach of the equal shared parental responsibilities that the parties have for X.
This has included two periods of overseas travel since separation. The Mother took X to the United Kingdom for a period of five weeks in … and … 2015. In … and … 2016, the Mother again took X overseas for a period of five weeks to Country O, Country P and the United Kingdom. The Mother asserts that the Father had knowledge of these travel plans and I do not accept that he did, at least with a reasonable period of notice.
In the period of time where the matter was part-heard between March and May of 2019, the Father filed an Application in a case because the Mother had unilaterally withdrawn X from the kindergarten that she attended. He also asserted in that application that the Mother had unilaterally changed the arrangements for X’s preparatory year. This was allegedly on the basis that the Mother did not want X attending at the same school or kindergarten as T, the daughter of Ms F and Ms E.
The additional considerations
I propose to consider any additional factors set out at section 60CC(3) of the Act which I have not referred to elsewhere. I will not necessarily refer to each and every additional consideration in these reasons, as not all factors are relevant or will impact on the outcome of this case. If I do not refer to a particular factor it does not follow that I have not had regard to it.
Any views expressed by X and any factors (such as her maturity or level of understanding) deemed relevant
X does not express any particular view in relation to her living arrangements. Even if she had, X is not at an age where her views could reasonably inform the result of this case and would be given very little weight in any event.
The nature of X’s relationships with each of her parents and any other relevant persons
I have considered the nature of X’s relationship with her parents previously in these reasons. She seems bonded with each of them and has a primary bond with the Mother as her significant primary carer. I am satisfied that on a basic level, her family relationships seem to be loving and appropriate. I have considered whether the Father is overly affectionate towards X, however I am satisfied that this in and of itself is not a cause for immediate concern.
The extent to which each of the parents has taken, or failed to take, the opportunity to participate in major long-term decision making in relation to X and to spend time and communication with X
Both parents have been conscientious with respect to spending time with X and being involved in her life. Each of the parents state that the other parent’s interference or involvement is problematic for them. If anything, the extent to which each of the parents have a desire to be involved in an intimate way with X has been the cause of significant conflict between them. The Mother appears to have made more of the major decisions for X, but some of those have been unilateral, and have been a source of conflict and consternation for the Father.
Neither parent is capable of being criticised in relation to their attitudes in this regard.
The extent to which each of the parents have fulfilled or failed to fulfil their obligations to maintain X
Although it appears that the Father has paid Child Support as assessed for X, I find that the Mother has carried more of the burden with respect to X’s financial support. This factor however does not inform the result in these proceedings.
The likely effect of any changes in X’s circumstances, including any separation from either of her parents or any other relevant person
As I will make an order that the Mother have sole parental responsibility for X there will be a change in her circumstances. It is likely that X will have no perception of that change, as it seems to me that the Mother has been exercising the decision-making responsibility for some time. In my view, the formal order for sole parental responsibility to the Mother will assist in X’s development and avoid disagreement and potential conflict.
The further issue for consideration is how X’s time should be shared between her parents. The Mother proposes that she should have the preponderance of care, with X spending very little time with the Father. Although there are serious problems in this case, in my view the Mother’s proposal is too limited, with respect to the context of the relationship X currently enjoys with her Father. The Father suggests that X should be in their equal shared care, however having regard to the relationships of the parties, their conflictual interactions and the exposure of X to that conflict, an equal shared care arrangement would be the worst possible result in this case.
Notwithstanding the parties’ respective positions, I have also considered whether with the formal imposition of a sole parental responsibility order, whether the current arrangements would be able to continue. In my view it cannot, and the concept of ‘parallel-parenting’ will only work if X lives primarily with the Mother and spends a block period with her Father each alternate weekend and for half of the school holidays. X’s experience to date has been one of her being divided between her parents, and has required her to traverse her parents’ conflictual relationship on a regular basis. The orders that I will make will reduce this, although it must be said that it is the duty of the Mother and Father to ensure things improve for X moving forward.
Ultimately, I am of the view that it is impossible for X’s time to be equally shared on the proposal of the Father. Equally however, having regard to the circumstances of X’s care, it is not appropriate to reduce her time with the Father as significantly as suggested by the Mother.
I also must consider whether the Father should have electronic communication with X when she is not in his care. This also creates a potential for ongoing conflict between the parties. However, on balance, it would be of benefit to X to have some form of electronic communication with the Father on the weekend that she is not in his care. I shall therefore order that the Father have Skype or other like electronic communication with X on Sunday morning for a period of no longer than 10 minutes between 10.00am and 10.30am. There is no magic in that time, merely I have chosen it in order to propose an arbitrary time, on the basis that I do not believe that the parents are able to negotiate flexible arrangements that might better suit X’s needs. The reason that I have selected the morning is to allow X some time on the Sunday evening to settle prior to the commencement of the academic week.
In reducing the time X spends with the Father throughout the academic week her welfare will be enhanced. The Mother is more organised and better able to have X attend at school punctually.
The practical difficulty and expense of X spending time and communicating with a parent and whether this difficulty will substantially affect her right to maintain that relationship
In terms of the orders that I propose to make, there are some practical difficulties with the use of a nominee to effect non-school changeovers, however those matters are not insurmountable. The parties both live in the metropolitan area and although the Mother moved X’s residence to the Suburb S area, I am not of the view that the distance between the two homes is so great that geographical distances render the orders that I propose to make impractical.
The capacity of each of X’s parents and any other relevant person to provide for X’s needs, including her emotional and intellectual needs
The Mother has a better capacity to meet X’s needs during school terms. In terms of the parties’ respective capacities to meet the physical needs of X, I have no concerns regarding the Mother. She is organised and committed to X’s welfare, and in my view the orders I make shall alleviate some of the other burdens that the Mother has experienced in the shared care arrangement to date. There are titbits of information contained in the evidence to suggest that the Mother is a caring, domestic and homely person who is well able to provide for X in a physical sense.
Overall, I am satisfied that the Father’s capacity to care for X in a physical sense is adequate. I am concerned that he thought that leaving X home alone (albeit denied by him) was appropriate. There will be an order that the Father not leave X unattended without a supervising person over the age of 16 years. Otherwise, the Father has cared for X for the periods set out and I am satisfied that he has the capacity to meet X’s physical needs.
Each of the parties have difficulties communicating with the other. Between them, there is an enormous amount of information passing between them but very little by way of actual communication. The parties tend to bombard each other with emails and written material with very little in the way of cooperative parenting, and tend to dictate terms to each other. On that basis, I find that each of the parties have a significant deficit in terms of their communication style with the other.
The Mother has been having therapy in an effort to deal with some of the issues surrounding the high parental conflict in this case. That is very much to her credit and indicates to me that she has some insight and is committed to trying to ensure that X enjoys a relatively stress-free and conflict-free childhood.
I have set out in detail my concerns about each of the parties’ capacities to meet the emotional and psychological needs of X. I do not propose to repeat those matters here, save to say that I have great concerns for X’s emotional and psychological welfare if the conflict between the parties continues unabated and X continues to be exposed to family violence. Each of the parties need to address these issues.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and either of her parents, and any other characteristics of X the Court deems relevant
The Father is from Country O and the Mother is British. The Father had a highly emotive presentation as I have discussed, and at first blush, when assessing his heightened emotional state I thought may have been explicable due to cultural differences which needed to be factored into an assessment of his capacity to care for X.
However, Dr B formed the ultimate view, and I concur, that the difficulties that the Father faces with containment and lability extend beyond what one would consider within the normal range of cultural norms for a Country O person, and in fact are reflected in a far more deep-seated and chronic problem within the Father’s personality.
Accordingly, Dr B formed the view, and I concur, that there is no cross-cultural explanation for the Father’s behaviour, although undoubtedly differences in cultures was a valid matter to take into account in assessment. Although Dr B considered there might be some element of cultural emotional traits, he thought that in this particular instance it was excessive and uncontained, particularly in terms of the long goodbyes, kissing and being unable to provide X with a soothing environment for the purpose of changeovers. Dr B thought that the Father’s behaviour did not fit with the child’s needs.
I have considered those issues and the focus by the Father on X’s exposure to her Country O cultural heritage. I have also considered the Mother’s English culture. Each of the parties have sought and still seek an order to travel to their respective countries of origin which I have dealt with earlier. Although I can see some significant benefit to X in being exposed to her Country O culture, there are other factors that militate against X being permitted to travel with the Father which I have set out.
The attitude to X and to the responsibilities of parenthood demonstrated by each of the parents
This issue has been dealt with in these reasons. Suffice to say, I have concerns about each of the parties’ attitudes in a number of respects.
Any family violence involving X or a member of her family, and any relevant inferences that can be drawn from any applicable family violence order
I have covered this matter in detail throughout the course of these reasons. There have been numerous Intervention Orders and the involvement of the police. Each of the parties readily resort to police intervention as I have set out. I am not of the view that family violence issues are sufficient enough to warrant the reduction of the Father’s time sought by the Mother. I do however regard the family violence issues as important, and X must be protected from exposure to family violence. Regardless of the protestations by the Father, I am of the view that he has engaged in family violence and X has been exposed to that.
The Mother has also exposed X to aggressive and violent outbursts, however I am satisfied that the Mother’s behaviour is more reactive. The Father has not only initiated violent incidents, but also does so seemingly without any insight into having done so. This is of significant concern.
Whether it would be preferable to make the order that would be east likely to lead to the institution of further proceedings in relation to X
It is preferable to make final orders in these proceedings, however it is not possible for me to make a final order with respect to international travel with X on each and every occasion that the parents may seek to travel.
I am of the view that the Father is a flight risk, and significant work would need to be done by him with regard to his attitudes and presentation in order to satisfy the Court that the risk had abated.
Nevertheless, I may not be the judge to any future application, and each case would need to be assessed on its merits. In the same way that I propose to allow the Mother to travel with X to the United Kingdom (but not to other countries) at a future date, I also propose to restrain the Father from bringing an application to travel overseas with X for a period of three years. Neither of the parties should regard this statement as an invitation to bring further litigation in the proceedings. It is merely a recognition that these sorts of matters for X are still in a state of flux and may not be able to be finally determined at this time.
Given the highly conflictual nature of the parents’ relationship, I am not convinced that these will be the last round of proceedings with respect to X’s care arrangements. The nature of the issues in this case, including whether there should be future overseas travel, are such that I cannot imagine that there will not be future litigation if only in relation to some of these ancillary issues. While there may be issues regarding overseas travel, it is also equally likely, or at least possible, that the parties will not be able to abide by the orders in this case. If that occurs, then it may also be that the arrangements need to be revisited.
In terms of the wider parenting arrangements, it is expected that these orders will be final orders.
Ultimately, the issue of whether or not a change of circumstances has occurred will need to be considered by any judicial officer hearing the matter at that time.
Any other matters the Court deems relevant
There are a number of orders sought by the parties or either of them that seem to be either agreed or are sensible to enhance X’s welfare. There are various other orders sought by the parties which I do not propose to accede to.
In terms of school holidays, the Mother sought that X have limited days with her Father in the school holidays. In my view, having regard to the history of the matter and the attempted implementation of a ‘parallel parenting’ regime, it is appropriate that X should share the school term holidays between her parents.
Given that I propose that the Mother should be permitted to travel with X, the Mother should be permitted to travel with X for a period of up to 4 weeks every two years as and from January 2022. For that purpose, she shall be permitted to suspend the Father’s school holiday time over one school holiday period in that year and each alternate year thereafter, provided always that equivalent make up time is provided to the Father within a period of six months either before or after the suspension period. I make it clear that if the Mother intends to travel with X during the school year she is entitled to remove X from school for that purpose, as I have no concerns about her capacity to adhere to X’s academic needs and I am satisfied that she will appropriately take those needs into account when determining when is the appropriate time to travel.
In terms of the long summer holidays, X should spend time with her parents on a week about arrangement unless otherwise agreed. I have little optimism that the parties will be able to agree outside of the scope of these orders. In the event that the parties agree, that agreement should be done in writing in order to ensure that there can be no misunderstanding.
In terms of Christmas Day, the Mother’s application was that she wake up with X each Christmas Day. I make it clear that in terms of X travelling with the Mother, that period should not incorporate Christmas Day as it is an occasion that is special to each of the parents and to X. X should have an experience of that day with each of her parents. On balance, I am not satisfied that I should accede to the Mother’s application, and that it will be to X’s benefit that she have an experience of each of her parents on Christmas morning and staying overnight on Christmas Eve, when the Father celebrates. I shall make an order that Christmas Day be shared between them.
There are other orders that were sought by the Independent Children’s Lawyer which seemed noncontroversial and sensible and I shall incorporate those orders into the orders that I make.
I also propose to make an order that where practicable, the parties use ‘OurFamilyWizard’ or such other agreed electronic application to communicate with each other regarding X’s welfare. The parties should desist from using other means of communication save in the case of an emergency. In particular, I refer to internet-based messaging applications such as WhatsApp and SMS text messaging.
I remind the parties and note that section 121 of the Act applies to these proceedings. Section 121 subsection 1 provides as follows:-
(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
It is not permissible for the parties or either of them to disseminate these reasons among the wider community, although I shall give specific liberty to the parties to provide a copy of these reasons to each of their respective counsellors and professional health advisers. The Mother should be permitted to show a copy of these reasons to her parents as they are so intimately involved in X’s life. Each of the parties shall be at liberty to provide a sealed copy of the orders to X’s school and to any school counsellor that X may attend upon from time to time, but they are not to be provided a copy of these reasons. The Mother may provide a copy of these reasons to any counsellor she engages for X from time to time (if she does so). I would hope that the Father gets some assistance in terms of dealing with the result in this case and the reasons for it. In that sense, I am going to ask the Independent Children’s Lawyer to remain in these proceedings for a period of six months, and also to nominate a counsellor or psychologist for the Father to attend upon on at least three occasions (at his expense) in order to explain the outcome of these proceedings and the nature of the reasons to him.
I am of the view that the very detailed orders that I shall make are necessary in this case in order to avoid areas of dispute. I have done the best I can to clarify matters which experience would suggest become fertile ground for argument in the future. Clarity is important. Therefore, the matter shall be listed for mention for submissions to ensure that the orders are clear.
For all of the foregoing reasons, I regard the draft orders as being in the best interests of X.
I certify that the preceding three hundred and seven (307) paragraphs are a true copy of the reasons for judgment of Judge Stewart
Date: 1 February 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies