GAINES & GAINES
[2012] FMCAfam 725
•20 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GAINES & GAINES | [2012] FMCAfam 725 |
| FAMILY LAW – Parenting – competing live with applications – child aged 10 years – different parenting styles – wishes of child. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC |
| H v W (1995) FLC 92-598 R and R; Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MR GAINES |
| Respondent: | MS GAINES |
| File Number: | PAC 3978 of 2011 |
| Judgment of: | Sexton FM |
| Hearing dates: | 21 and 22 June 2012 |
| Date of Last Submission: | 22 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Ms M. Bateman |
THE COURT ORDERS THAT:
All previous parenting Orders be discharged.
[X] born [in] 2002 live with the Mother.
Until the commencement of the 2015 school year, [X] spend time with the Father in two weekly cycles during school terms as follows:
(a)In Week 1, from after school Thursday until before school Monday morning; and
(b)In Week 2, on Thursday from after school until 7.30 p.m.
From the commencement of the 2015 school year, [X] spend time with the Father each alternate week during school terms from after school Wednesday until before school Monday morning.
For the purpose of changeover during school terms, the Father collect and deliver [X] to and from school and, until Order (4) applies, the Mother collect [X] from the Father’s residence on alternate Thursday evenings at the conclusion of the time.
The Mother be restrained from consuming in excess of two standard drinks on any day [X] is in her care.
Unless otherwise provided in these Orders, the Mother be responsible for holding [X]’s passport.
If either party wishes to travel overseas with [X], the parties take the following steps:
(a)The party proposing to travel give the other party as much notice as practicable of the proposed travel plans, but no less than 2 months notice, unless an emergency;
(b)The party proposing to travel provide the other party with an application for [X]’s passport (if required) no later than 2 months notice prior to the proposed date of travel;
(c)The party proposing to travel provide the other party with a written itinerary of the proposed travel, including flight details, contact details for each destination (including stopovers), no later than 28 days prior to the proposed date of travel;
(d)The non-travelling party take all steps necessary to authorise [X]’s travel, including signing any passport application, making [X]’s passport available as requested by the party proposing to travel no later than 21 days prior to the proposed date of travel, or earlier if required for a visa;
(e)If the Father is the travelling party, the Father return [X]’s passport to the Mother within 7 days of his return to Australia.
THE COURT ORDERS BY CONSENT THAT:
The parties have equal shared parental responsibility for making decisions about the major long term issues for [X] noting that this Order prohibits either party from engaging [X] in counselling without the prior consent of the other party.
Each party have sole responsibility for making decisions about the day to day care, welfare and development of [X] during periods when he is in each party’s respective care.
Unless otherwise provided in these Orders, for the purpose of changeover, each parent deliver [X] at the commencement of the other parent’s time to the other parent’s home.
[X] spend additional time with the Father as follows:
(a)For the first half of all school holidays or as otherwise agreed between the parties in writing;
(b)For 2012 and each alternate year thereafter, from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day;
(c)For 2013 and each alternate year thereafter from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day;
(d)Each Father’s Day from 5.00 pm the day before Father’s Day until 5.00 pm on Father’s Day with the Mother’s time being suspended over this period; and
(e)Such other times as agreed between the parties from time to time.
[X] spend time with the Mother each Mother’s Day from 5.00 pm the day before Mother’s Day until 5.00 pm on Mother’s Day with the Father’s time being suspended over this period.
For the purpose of the school holiday periods, school holidays are defined as commencing at conclusion of school on the last day of the school term and concluding the day [X] returns to school.
For the purpose of [X]’s birthday, if it falls on a non-school day, [X] spend time with the parent with whom he is not spending time, from 12.00pm until 6.00 pm and if it falls on a school day, [X] spend time with that parent from the conclusion of school until 6.00 pm.
[X] be at liberty to communicate with either parent via telephone at any reasonable time and each party encourage and facilitate this communication with the other parent, neither using the speaker phone.
Each party sign all documents, provide consents and do all things necessary to authorise [X]’s school, sporting or health clubs or professional with whom [X] is associating, to provide the other party copies of any reports, notices or communications concerning [X].
In relation to medical issues:
(a)Each party advise the other immediately, or as soon as practicable if [X] is involved in a medical emergency;
(b)Each party inform the other if [X] requires any medical treatment or medication; and
(c)Each party ensure [X] receives medication or other medical treatment in accordance with the medical recommendation.
Each party keep the other informed of his/her current residential address and contact details including mobile phone number and email address, so that each party can contact the parent caring for [X], at any time.
Each party be restrained from denigrating the other party or members of the other party’s family to [X] or in the presence or hearing of [X].
Each party be restrained from discussing these proceedings with or in the presence of [X] or showing [X] any document connected with these proceedings.
AND THE COURT NOTES THAT:
Each party acknowledges the present difficulties in their communication about [X].
If the parties’ communication about [X] does not markedly improve within 3 months of these proceedings being finalised, the parties will consult a private therapist privately, or one of the external agencies, for professional assistance.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Gaines & Gaines is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 3978 of 2011
| MR GAINES |
Applicant
And
| MS GAINES |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for the parties’ only child, [X], aged 10 years. After an 11 year relationship, the parties separated in June 2011, 12 months before final hearing. They were both living in the [C] region at the time of separation.
The proceedings were initiated by the Father on an urgent basis in January 2012 when the Mother said she was planning to relocate with [X] from the [C] region to [B], a considerable distance away, without his consent. The Mother remains living near [C], and no longer seeks to relocate, but the parties have been unable to resolve [X]’s future parenting arrangements. Currently, they do not trust each other and their communication is poor.
The parties do not agree on the amount of time [X] spent with the Father immediately after separation, though agree that [X] was living between the two households with frequent transitions. Since late 2011, it is common ground that [X] lived 8 nights a fortnight with the Mother, and 6 nights with the Father (5 nights in one week and one night in the other) as well as half school holidays with each party. This arrangement was confirmed by interim orders made in January 2012.
The parties are in dispute about [X]’s school term arrangements. The Father seeks orders providing for [X] to live with him and spend 4 nights a fortnight with the Mother, although in cross-examination he says he believes equal time with each party would work for [X]. The Mother seeks orders providing for [X] to live with her and spend 4 nights a fortnight with the Father. The Mother would prefer the time to be spent in one block. She says [X] is unsettled in the current arrangements.
Family Consultant recommendations
Ms O, clinical psychologist, prepared a report for the Court. Ms O recommends that [X] live with the Mother and spend 4 nights a fortnight with the Father, made up of a 3 night weekend in alternate weeks and a single overnight in the other week. At the end of her oral evidence, Ms O told the Court that in the alternative, a 4 night block of time each alternate week would serve [X]’s needs equally well, and she would support such an order.
Mr Reeve, the Father’s solicitor, cross examined Ms O about her methodology in gathering information for the report. He submits that the process was flawed and disadvantaged the Father. Mr Reeve asked Ms O why she had not read the parties’ affidavit material, how she had decided the order of interviews, and why she did not interview the Father’s de facto partner Ms S or Ms S’s son, [Z], with whom [X] lives when with the Father.
Ms O says it is her usual practice not to read the parties’ affidavits before the interviews, and she made this clear to the parties. She saw the Mother, [X] and [W] (the Mother’s son) in the morning, and the Father shortly before 1.00p.m. She gave no particular reason for the order of interviews. Ms O says she intended to meet Ms S, but she was not available. Ms O was perplexed by the suggestion that her receptionist told Ms S when she arrived with the Father that she was not required for interview. Ms O conceded that the report may have been more complete had she interviewed Ms S, but in her view, it would not have changed her recommendations. Ms O did not accept that the absence of an observation of [X] with [Z] was a weakness in her report. She found the Father to be agitated and highly strung on the occasion of interview, but states that she takes into account, at least to some extent, that the parties are generally anxious about the process. When she interviewed the Father, Ms O discussed the Mother’s concerns about him, and some days after interview rang the Mother to discuss concerns raised by the Father about her. Ms O accepted that “in a perfect world”, it would be helpful to interview the parties and to observe them with [X] on different occasions.
While I agree with Mr Reeve that the Report may have been more helpful had Ms O interviewed Ms S and seen [Z], I am not persuaded anything of significance turns on these omissions having now considered the whole of the evidence, including the evidence of Ms S.
Background
The Father migrated from England in 2002 and is now an Australian citizen. He is 38 years of age and self employed as an [occupation omitted]. He says he has flexible working hours and will transport [X] to and from school when [X] is in his care. He commenced living with Ms S, an [occupation omitted], in September 2011 and they have a child [Y], born 2 months before hearing. Ms S also has a son from a previous marriage, [Z], aged 9 years who lives with them. They are living near [C]. The Father tells the Court that [Y] has been diagnosed with a mild form of Down Syndrome and may have some special needs in the future. I am not asked by either party to have regard to [Y]’s diagnosis when determining [X]’s living arrangements.
The Mother is 45 years of age and self employed in [omitted], with flexible hours and the opportunity to work, at times, from home. She has a son [W] from a previous relationship, aged 21, who lives with her and [X] at [omitted], in the [C] region. [W] is employed as a [omitted].
The parties married [in] 2000 and separated in mid-2011. Their only child, [X], was born [in] 2002. [X] attends [C] School in Year 4.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both of the child's parents
While the parties differ as to the extent of the Father’s involvement in [X]’s care in his early years, I accept Ms O’s assessment, as do the parties, that [X] has established strong relationships with both parties. Despite criticism, particularly from the Father about the Mother, each party does acknowledge the importance of [X]’s relationship with the other party. On both their proposals, [X] will spend weekend and weekday time with each party during school terms as well as holiday time with each of them. I am satisfied that whether [X] spends four, five or six nights a fortnight with the non-resident party, he will continue to benefit from a meaningful relationship with both his parents. This is therefore not a factor to which I give much weight.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
These proceedings were commenced on 13 January 2012. Relevant amendments made to the Family Law Act 1975 pursuant to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 therefore do not apply.
“Abuse” was narrowly defined in section 4 of the Family Law Act, as sexual abuse or an assault of a child which is an offence under the law. This is not an issue in this case.
A question arises as to whether [X] has been psychologically harmed by exposure to family violence or from neglect.
“Family violence” was defined at section 4 of the Act as conduct, whether actual or threatened that causes the person to reasonably fear for, or to be apprehensive about, his or her personal wellbeing or safety.
The Mother claims that the Father was verbally abusive towards her during the marriage, habitually undermining and belittling her in front of [X]. She deposes to him often calling her a “useless bitch”; “ignorant”; “simple”; and “devious cow” in [X]’s presence. I find it noteworthy that she raises these same concerns in an email to the Father dated March 2008[1].
[1] At Annexure O of Father’s affidavit sworn on 24 May 2012
[W] deposes[2] to the Father shouting at his Mother during their relationship, calling her names such as “bitch” “useless” “lazy”. [W] says “he tended to be very loud and threatening in our home” and that he did his best to protect [X] from the Father’s outbursts. [X] said to Ms O, “Dad was always yelling at Mum and my brother would pull me away”.
[2] At paragraphs 5 and 6 of the affidavit of [W] affirmed on 20 January 2012
The Mother deposes to the Father calling [X] “stupid” and to him slapping [X] over the head. [W] observed the Father to be “very stressed” and to anger easily. While the Father denies that his tone was ever undermining of [X], I accept the Mother’s and [W]’s evidence on this issue. I am satisfied that the Father was verbally abusive and did anger easily, which is likely, at times, to have made [X] feel apprehensive about his personal well-being. This is a finding I take into account.
Mr Reeve submits that [X] may be at risk of neglect if the Mother drinks alcohol to excess while [X] is in her care. “Neglect” is not defined in the Act, and therefore must be given its ordinary meaning. While I accept Mr Reeve’s submission, I do not find that [X] has, in fact, been neglected while in the Mother’s care. I have addressed the evidence about the Mother’s alcohol use later in these Reasons.
ADDITIONAL CONSIDERATIONS
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the child’s views.
The Full Court in H v W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
…including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.
The evidence discloses that [X] has the maturity to express a view as to his day to day arrangements. Ms W, a psychologist whom the parties engaged to assist [X] in late 2011[3], describes [X] as a “mature and polite 9 year old boy.” Ms O describes[4] [X] as “reasonably mature and capable of knowing his own mind.”
[3] Exhibit 2 – Report dated 15 November 2011
[4] At paragraph 35 of Exhibit 1
[X] tells the Family Consultant that he wishes to live with the Mother and spend time with the Father “every second or third weekend”. He tells Ms O that he enjoys his time with his Mother and feels supported by her and [W]. He says that the Father is not as understanding as the Mother. She says[5]:
[X] had clear and feasible reasoning for wanting to live with the Mother during the week. He stated that his mother is “more organised with school”; “she’s more understanding” and… “I feel more comfortable there”.
[5] At paragraph 39 of Exhibit 1
[X] reported “considerable distress about incidents in his Father’s home”[6] and “appeared visibly sad and distressed when talking about these incidents”. He gave these reasons to Ms O:
a)He is not allowed to go out much and his Father is over-protective.
b)The Father “shouts and gets us in trouble” [it is noteworthy that [X] told Ms W, (the psychologist who saw [X] a number of times in late 2011) in the context of her assessment of his wishes in relation to the Mother’s proposed relocation to [B], that his Dad was a “lion – he yells a lot and he’s like the boss”, his Mother is a “fish like a seal – she’s quiet”.[7]]
c)The Father calls him “stupid” almost every day.
d)The Father punishes him by making him eat “a whole plate” of vegetables he hates or by making him write lines. He is put in his room for lengthy periods.
e)If hurt, the Father would tell him to “toughen up” and the Mother would “help him”.
f)Ms S “shouts really loud”.
g)He has symptoms such as “feeling hot, sweaty and shaky” when at his Father’s home.
h)[Z] “has ADHD and is a bit crazy and annoying.”
[6] At paragraph 38 of Exhibit 1
[7] Exhibit 2
The Mother found a letter in [X]’s room on 16 April 2012 which listed the “goods” and “bads” of each household. In relation to the Father’s household, [X] lists as “bads” that the Father shouts, makes him eat food he does not like and does not let him be independent. His letter reads[8]:
Dear [first name of the applicant omitted]….I was a little nervous to tell you this but this is what I want to go to your house on Saturday and Sunday an if your truthfull [sic] you will let me do this cause ever since you guys split you said that you let me do what ever I want as long as I’m happy so please let me do this cause I feel more comfortabal [sic] here and I don’t get shouted at and don’t have to do 5 pages of lines and mum talks instead of shouts and doesn’t give me lines..
[8] Annexure A of Mother’s affidavit sworn 23 May 2012
I find that the Father did, to some extent, acknowledge [X]’s allegations, but agree with Ms O that he denied any verbal abuse and minimised his use of punitive means of discipline.[9]
[9] At paragraph 32 of Exhibit 1
When the Mother was proposing to move to [B], [X] told Ms W that he would prefer to remain with the Father in [C]. Ms O says[10]:
…[X] indicated that he would prefer to remaining living with [the Father] in the [C] area. This claim is supported by the documentation, although it is also noteworthy that [X] stated that he loved both his parents and the decision appears to have been associated with his not wanting to leave the area, rather than a desire to not live with the Mother.
[10] At paragraph 30 of Exhibit 1
Ms O is in no doubt that [X] genuinely wants to live with the Mother. She found [X] “rational and clear” as to why he was more comfortable in the Mother’s home[11]. They discussed a range of issues and his responses were consistent with this expressed view that he wanted to live with the Mother and spend time with the Father. Ms O assessed [X] to be fearful of the Father’s reaction to what he had told her, and far more concerned about what the Father would say than the Mother, but was hopeful the Father would agree to what he asked for, as the Father had told him he would.
[11] At paragraph 38 of Exhibit 1
The Father does not accept that [X]’s views, as expressed to Ms O, reflect his genuine position. The Father believes that [X] is under the influence of the Mother and has been “manipulated to take sides”. He denies that [X] feels anxious in his care. He perceives [X] to be “very happy” in his household and only became anxious because the Mother forced him to lie about his recent skateboard accident.
After the release of the Family Report, the Father arranged for [X] to see another psychologist, Ms D, without the consent of the Mother. The Father says that in doing so, he was following the Family Consultant’s recommendation. Ms D observed that [X] did not want to upset his parents. He wishes his parents could be friends and “have a barbecue together”. Ms D found “significant issues resulting in stress and anxiety for him at this time” and recommended that [X] receive psychological support[12]. In cross- examination, Ms D says although she did not directly ask [X] what he wanted, it was clear that [X] was worried about a block of time being too long; he did not want his recreational activities interrupted; he worried about telling his Father that he really likes Facebook, knowing his Father’s opposition to it; he did not want to tell the Father details of his recent accident in case it had an impact on the outcome of the proceedings; he was very worried about losing the Mother and sensitive to his Mother’s concerns about him being taken away from her.
[12] Exhibit 3
I accept Ms O’s opinion that [X] is more settled and comfortable in the Mother’s household and genuinely wants to spend the majority of his time there. I accept that [X] is, at times, anxious in the Father’s household for the reasons he gives to Ms O. I am satisfied that [X] finds the Mother’s home more predictable and emotionally safe and enjoys the greater independence the Mother allows him.
I give these findings moderate weight.
The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
I have earlier referred to the nature of [X]’s relationship with each parent. I find that the Mother provided the majority of [X]’s care in his early years because, consistent with the Mother’s evidence, the Father tells Ms O[13] that he was working “like a dog” when [X] was very young. I am satisfied that [X] has developed a close, stable and loving relationship with the Mother. Despite the Father working long hours in [X]’s early years, I find [X] loves the Father and has established a good relationship with him, despite being troubled at times by some aspects of the Father’s behaviour.
[13] At paragraph 29 of Exhibit 1
It is common ground that [X] gains a lot of emotional support from his brother [W], with whom he has lived all his life, and with whom he has a special bond. I find [W] loves [X] dearly and is a caring and protective presence in his life.
While there is no independent evidence of [X]’s relationship with
Ms S, I am satisfied, on the evidence of the parties, and of Ms S, that [X] generally gets on well with her, despite his stated concerns about her “shouting”. I find it noteworthy that [X] refers to her as most like “an otter” to Ms W as she “was calm”.[14]
The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
[14] Exhibit 2
[X] has spent almost equal time with each party since their separation approximately 12 months ago. I am satisfied that neither party has obstructed [X]’s time with the other. I find their email correspondence generally respectful[15] although I accept that the Mother is troubled by the level of Ms S’s involvement in decision-making about [X]. I find it regrettable that the parties are not yet co-parenting in a sufficiently cooperative manner to ensure the strain on [X] is minimised, as he moves between two households and deals with the different routines and rules in each place.
[15] Exhibit 4
In his affidavit material, and in oral evidence, the Father is highly critical of the Mother’s parenting. He asks the Court to find that the Mother is irresponsible, allowing [X] too much freedom at too young an age. He has highlighted examples of what he sees as the Mother’s poor parenting, using [X] as a key source of information for these examples, as outlined later in these Reasons. I accept the Mother’s evidence that she has been anxious in recent months as to what the Father might find to criticise about her parenting, leading up to this hearing. I find that the Father’s anxiety about the outcome of this litigation, as observed by Ms O and evident when the Father was cross-examined, has inflamed the tension between the parties, causing [X] unnecessary increased stress. I am critical of the Father in this regard. The Father needs to learn to support [X]’s relationship with the Mother so that [X] is never in any doubt about the Father’s acceptance of the importance of that relationship to [X] and the strengths of his Mother as a parent. Instead, I find the Father has used [X] to undermine the Mother in [X]’s eyes.
I am satisfied that the Mother has, for the most part, supported [X]’s relationship with the Father and Ms S.
I give some weight to these findings.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
[X] has always lived primarily with the Mother and his brother [W]. He is used to both being available to him for his emotional support. The Mother has been available to him on the majority of his school days to organise him day to day, supervise and assist with his homework and assignments. [X] enjoys local friendships there. I find [X] depends more on his Mother than his Father for security in his day to day life. The Mother says [X] would be extremely distressed if removed from her primary care and away from [W]. I find it likely that [X] would face a significant adjustment if he were to live in the Father’s primary care.
If [X] were to spend more time with the Mother, he would spend less time with the Father, [Y], Ms S and [Z]. I am not persuaded such a change would impact adversely on [X]’s relationships in that household.
I give considerable weight to this finding.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
This factor does not apply.
The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
Each party raises concerns about the other’s capacity to parent and to the other’s attitude to the responsibilities of parenting. I find it convenient to address most of these issues together.
The parties have very different parenting styles and it is common ground that each household has different rules and routines. There is no dispute that [X] is permitted more independence in the Mother’s care than in the Father’s care. The Father believes the Mother is making [X] grow up too fast and expecting too much of him, given he is just 10 years of age. As a consequence, the Father believes that [X] is at physical and emotional risk of harm in the care of the Mother. His concerns have resulted in substantial correspondence between the parties’ solicitors. For her part, the Mother believes she sets appropriate boundaries and that [X] respects and responds to the limits she sets. The Mother believes that the Father’s anxiety has made him over-protective of [X].
In substance, the Father’s concerns fall into 3 categories: firstly, the Mother fails to set appropriate boundaries for [X]; secondly she fails to observe proper safety standards and thirdly, her judgment is impaired by her excessive consumption of alcohol.
In relation to her failure to set appropriate boundaries, the Father says:
a)The Mother allows [X] to come home on his bike after dark.
b)The Mother leaves [X] unsupervised at the skate park, frequented by older boys with whom he associates.
c)The Mother allows [X] to associate with boys several years older than he is, with very different interests.
d)The Mother allows [X] to ride a long way from home without supervision and she does not always know where he is.
e)The Mother established an account for [X] on Facebook[16] and [X] now has teenage friends who post information and make requests which are inappropriate for a child of [X]’s age.
[16] Exhibit 5
In relation to his use of Facebook, the Mother says she originally established the account to enable [X] to stay in touch with his overseas cousins. Until a few weeks ago, she says she believed she could control his use of the account and that the Father was also allowing him access to the account when [X] was in his care. When she realised that [X] was using the account outside the guidelines she had set for him, she closed it. The Mother says she accepts that although most of his class mates have Facebook accounts, “it is not necessary” for [X] to have one.
I find justification for the Father’s concerns about [X] having a Facebook account, given the language and content he has seen, but I accept that the Mother has now closed the account. I find the question of when [X] should be permitted his own account is one for the parents to decide in consultation with each other. As I said to the parties during the hearing, I am not satisfied it is the Court’s role to set parental standards, unless children are at significant risk of physical or emotional harm. This issue puts the spotlight on the importance of the parties communicating with each other in a positive and constructive way, so they can together work through these challenges as they arise.
Ms Bateman cross examined the Father at length about what rules would satisfy him that [X] was safe when in the care of the Mother. I find the Father responded thoughtfully and reasonably. However, I am not persuaded orders should include limits on [X]’s activities in this case, given the myriad of different contexts in which day to day parenting decisions will be made.
In relation to the Mother’s failure to observe safety standards, the Father says:
a)The Mother allows [X] to ride his skate board without a helmet and unsupervised. The Father was particularly alarmed by [X]’s skate board accident on 12 May 2012 when he was skating without a helmet, unsupervised, fell on his head and needed several stitches.
b)The Mother allows [X] to cross busy roads unsupervised.
c)The Mother allows [X] to ride his bike after dark.
d)The Mother has allowed [X] to go to the swimming pool with a friend unsupervised.
The Father says [X] should (at a minimum) always wear a helmet when on his scooter or skateboard, and when unsupervised should always carry a mobile phone, always be home before dark, and never be more than 1.5km from home when unsupervised.
The Mother believes the Father’s concerns are unjustified. She says that while [X] is pushing her for more freedom, she has appropriate rules and [X] understands them and abides by them. She says that [X] plays in a park with the local children 50 metres from her home, must be home by 5.30-6.00p.m. on a school night and is not allowed out late unless on a summer weekend when it is light until late. She disputes the Father’s claim that [X] goes beyond the local area because [X] is home no more than 5 minutes after she texts him to come home for dinner. The Mother denies permitting [X] to go alone to the skate park outside the local area unless she takes him there and picks him up. She acknowledges that [X] was riding his skateboard with his 13 year old friend [name omitted], without a helmet, when he fell on his head.
Ms O did not express any particular concerns about the Mother’s parental judgment, though acknowledges that [X] may need tighter boundaries in relation to a curfew.
I find the Father’s concern about [X] riding on his skateboard without a helmet, being left in a skateboard park unsupervised with older boys and riding home after dark, understandable, and I agree with the Father that the Mother should not permit [X] to ride his skateboard without a helmet, and should impose tighter restrictions on [X]’s outside activities. The difficulty posed by the parties’ different positions is obvious. Parents of a pre-teenager, need to work from the same page and be consistent in their approach. The parties need to talk to each other about routines and rules and together work out appropriate safety measures and boundaries for [X] from year to year. This is bound to involve a level of compromise from each party, but it is imperative they do so, to ensure [X] does not play one parent off against the other as he gets older.
The Father has concerns about the extent of the Mother’s current alcohol consumption because the Mother’s drinking “was a grave concern to me throughout the relationship” and she continues to drink. He deposes to the Mother drinking at least every second night at the beginning of their relationship, the amount varying from a bottle of wine to a bottle of vodka, and to the problem becoming worse in 2008. The Father believes the Mother continues to drink to excess at times when [X] is in her care. In particular, the Father alleges:
a)The Mother used to hide alcohol and has admitted to alcoholism.
b)In 2008 the Mother attended a health retreat for a week to give up alcohol, but relapsed a few weeks after her return home.
c)On an evening in 2010, the Mother left the home, purchased alcohol and “got drunk” in a room at the Father’s [building omitted]. The Father found her there asleep.
d)The Mother attended AA in 2008 and again in 2011 to address her alcoholism.
e)Ms S believes the Mother was under the influence of alcohol when the Mother came to her home in September 2011, saying “her eyes were glazed over, flushed in the face and she was being aggressive”.[17]
f)[X] told the Father that the Mother was drinking wine at a party held at her home for Halloween last year, when people slept on the floor, and [X] missed a day of school.
g)The Father found a text message from [X] to [W], sent on 3 March 2012 saying “Mums past [sic] out on her bed I don’t know what to do”.[18]
[17] At paragraph 28 of the affidavit of Ms S sworn 21 May 2012
[18] Annexure Q to Father’s affidavit sworn 24 May 2012
The Mother acknowledges an “alcohol problem” after the breakdown of her relationship with [W]’s father in her late twenties, and again when [X] was a baby. She says her problem escalated from 2006-2008 when she says she felt isolated and unhappy in her marriage and would drink more than a bottle of wine by herself 3 times a week[19]. She acknowledges attending AA in 2008 because of excessive alcohol use and in 2011 for friendship and support. Since 2009, the Mother says she has consumed alcohol to excess only occasionally (perhaps twice a year). She was unaware of [X]’s message to [W] in March, and denies a current problem with alcohol. To manage stress now, the Mother says she attends the gym three times a week and has engaged a personal trainer. She blames her previous binge drinking on the Father’s unreasonable behaviour in constantly accusing her of being an “alcoholic” and belittling her in front of the children.
[19] Paragraph 19 of Exhibit 1
I am satisfied that the Mother had an addiction to alcohol by 2008 having consumed alcohol to excess over a number of years, albeit with periods of abstinence. She has acknowledged the problem. In an email to the Father dated March 2008 the Mother refers to her “addiction to alcohol.”[20] In an email to the Father dated immediately after separation[21], the Mother admits she has caused the Father anxiety “over my drinking”. Given she started drinking to excess well before she met the Father, I am not satisfied that the Mother can reasonably lay the whole blame for her addiction on the Father. The question here is whether the Mother is abusing alcohol presently, and the likely risks to [X] of her doing so in the future.
[20] Annexure O to Father’s affidavit sworn 24 May 2012
[21] Annexure P to Father’s affidavit sworn 24 May 2012
Ms O says that the Mother “has experienced multiple psychological symptoms. Her alcohol abuse appears to have been a maladaptive coping strategy that led to dependence.”[22] Ms O says that the Mother has suffered mild depressive and anxiety symptoms in the past but reports a current stable and happy mood and no current mental health issues.
[22] Paragraph 22 of Exhibit 1
I accept Mr Reeve’s submission that it is likely that [X] did send a message to [W] in early March this year and was worried about what to do. [W] did not deny receiving the message and may have deleted it. [X] no longer has his phone. I accept the Father’s evidence that he saw that text message. However, it was midnight and the Mother was in bed, so I am unable on the limited evidence available, to conclude that [X]’s concern resulted from the Mother drinking to excess. The Mother denies drinking at any time [X] has been in her care since interim orders were made early in the year, prohibiting her from doing so. The Mother says she currently drinks wine 3 to 4 times a week, having 2 to 3 glasses at a time. She does not drink when [X] is with her, and says she would agree to an order restricting her alcohol intake.
I am satisfied, on the Mother’s past history, that the Mother has a vulnerability to excessive alcohol consumption. I have decided to order a restriction on her alcohol intake on days [X] is with her. If the Mother were to drink alcohol to excess while [X] is under her care, I agree with Ms O that her parental judgment may be impaired. I find it is in [X]’s best interests for the court to take a cautious view on this issue.
In relation to the Father’s parental capacity, the Mother and Ms O raise a number of concerns about the level of the Father’s insight into [X]’s needs and the extent of his capacity to see the situation from [X]’s perspective. I share these concerns for the following Reasons:
a)I find that the Father showed poor judgment in extracting information from [X] in an attempt to prove that the Mother is a poor Mother for the purpose of these proceedings.
b)I find the Father showed poor judgment when asking [X] about what he was or was not allowed to do in the Mother’s care. These are matters he should have discussed with the Mother, not with [X].
c)
I find the Father lacked judgment when he and Ms S asked [X] directly with whom he wants to live. The Father seemed unable to understand that [X] might not always be honest with him for fear of hurting his feelings, or for fear of his reaction, and that such direct questions might exacerbate [X]’s anxiety noted by both
Ms O and by Ms D.
d)I find the Father showed poor judgment in having a friend discuss issues before the Court with [X].
e)I find the Father lacked empathy for [X]’s feelings when he said that when he and Ms S “raise our voices” they would not affect [X].
f)I find the Father committed a serious error of judgment when he arranged for the police to attend the Mother’s home to conduct a welfare check on [X], when he was aware that [X] was safely in the Mother’s care.
g)I find the Father demonstrated a serious lack of insight when he resisted the suggestion from Ms Bateman that the police arriving at the Mother’s home wanting to speak to [X] might have caused [X] to feel confused and stressed, even though the Father had read in the Mother’s affidavit that [X] said to the Mother after this incident “can the police just come to take me away?” or “get me”? “What if you don’t win at the Court Mum?” “do I have to go with the police if they tell me?” [W] too, deposes to [X] being very scared by the police arriving to talk to him.
My findings are consistent with Ms O’s observations that [X] felt a bit “menaced” by the Father at interview and appeared nervous in the Father’s company.
The Mother raises concerns about the Father’s capacity to assist [X] with his homework and school assignments. She says that [X] rarely completes homework or assignments when with the Father and that the Father otherwise delegates responsibility to Ms S to supervise [X]’s homework. The Mother believes she has the better skills to help [X] and that it would work better for [X] if he spent the majority of school nights with her. The Father, to some extent, corroborates the Mother’s evidence on this issue. He says that [X] sometimes claims to have completed his homework at school, or claims not to have any homework, or claims to have left his homework book at the Mother’s home. The Father concedes that [X] has had homework problems in Semester 1. His evidence about the time [X] spends on homework in his home was at odds with the evidence of Ms S, with the Father estimating 1hr to 1hr 30minutes, and Ms S estimating 30 minutes. I find it more likely that [X]’s homework will be completed when he is with the Mother, rather than the Father.
I give substantial weight to my findings under this factor
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
A question arises as to whether [X] needs counselling. Ms O says that [X] is currently experiencing symptoms of stress and anxiety. He appears to have found the separation difficult emotionally and practically as he expressed feeling torn by loyalties and told her things were hard to organise with school. Ms O recommends that [X] have counselling to help him learn strategies to cope with his anxiety.
The Father does not press his application for an order for [X] to attend counselling and the Mother believes [X] should be given the chance to settle when these proceedings are finalised. The parties agree that they will consult each other before arranging further counselling for [X].
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The evidence discloses that the Mother did not give the Father a detailed and honest account of where and how [X] suffered his head injury in May 2012. I am satisfied that this put [X] in an extremely difficult position and caused him considerable distress. He was uncomfortable not telling his Father the whole truth, yet felt the need to protect the Mother from criticism given the potential ramifications for these proceedings. I find the Mother’s judgment poor on this issue. She should have given the Father the full details of the incident.
I have regard to this finding.
Any family violence involving the child or a member of the child's family
I have nothing to add under this factor.
Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or, the making of the order was contested by a person
This factor does not apply.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I have nothing to add under this factor.
Any other fact or circumstance that the court thinks is relevant
The Mother’s son [W] is 21 years of age, and although he has no plans to move from the Mother’s home, I find it likely [W] will not live with the Mother long term. I do, however, find it likely that [X] will continue to enjoy a very close relationship with [W], whether [W] is living with the Mother or not.
The Father has a baby son [Y], and I find it is in [X]’s best interests to have the opportunity to spend time with [Y] to ensure he can enjoy a close bond with him.
Ms S has a son [Z], and I find it is important for [X] to have the chance to enjoy a good relationship with [Z].
I take these matters into account.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with the child, and to communicate with the child; and has facilitated, or failed to facilitate, the other parent participating in making decisions about major long-term issues in relation to the child and spending time with the child and communicating with the child; and has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
I have nothing to add under this factor.
Parental Responsibility
Parental responsibility relates to decision making and not to the amount of time a child will spend with each parent. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Section 65DAC applies whenever a parenting order provides for shared parental responsibility and requires the parties to consult the other person and to make a genuine effort to come to a joint decision about any major long term decisions concerning the children.. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
I find the presumption applies in this case and that it is in [X]’s best interests for an order to be made providing for equal shared parental responsibility. Despite their different parenting approaches, the parties have, in the past, been able to communicate in a reasonably civilised way about [X]. These proceedings have exacerbated the tensions between the parties, but I am optimistic that the situation will improve when these proceedings have been finalised. The parties have agreed to an order for equal shared parental responsibility and both acknowledge the need to improve their communication for [X]’s sake. The parties agree that if there has not been a marked improvement within 3 months, they will seek professional help.
When an order is made for equal shared parental responsibility, section 65DAA(1) requires the Court to consider whether making orders that the child should spend equal time, or if not equal time, substantial and significant time with each party would be in the best interests of the child and whether such an arrangement is reasonably practicable[23], having regard to the factors set out in section 65DAA(5). These factors include the distance between the parties’ homes, the parties’ capacity to implement such an arrangement, the parties’ capacity to communicate and resolve any differences between them, the impact such an arrangement would have on the child, and any other matter the Court considers relevant.
[23] Section 65DAA Family Law Act 1975. See also MRR v GR [2010] HCA 4
The requirement of reasonable practicality “requires a practical assessment of whether equal time parenting [or substantial and significant time parenting] is feasible”.[24]
[24] MRR v GR [2010] HCA 4
I have decided that an equal time arrangement is not in [X]’s best interests or reasonably practicable for a number of reasons. The parties have different parenting styles and each is critical of the other’s approach; there is considerable tension between the parties and the Mother, in particular, finds communication with the Father difficult; each party has lost trust in the other; while I accept that the Father does have concerns for [X]’s safety when in the Mother’s care, I find his conduct has caused [X] anxiety and has served to exacerbate the parties’ poor trust in each other; [X] has been in an almost equal time arrangement since October 2011, and is not settled in this arrangement; each party seeks to change the existing orders; the Family Consultant does not recommend an equal time arrangement.
In relation to whether the Court should make an order for significant and substantial time, each party seeks orders providing for [X] to live primarily in his/her care and to spend 4 nights a fortnight with the other party. On either party’s proposal, [X] would spend significant and substantial time with the non-resident party[25].
[25] Section 65DAA(3)
Conclusion
[X] has been primarily cared for by the Mother since he was born and has developed a close emotional bond with [W] who also lives with the Mother. Ms O says that [X] is anxious when in the Father’s care and finds the current 5 consecutive nights away from the Mother too long. If living with the Father, Ms O says it is likely [X]’s symptoms of anxiety would increase. I accept Ms O’s opinion that [X] feels emotionally safer with the Mother. [X] has made his wishes clear that he wants to live primarily with the Mother and spend regular time with the Father. I find [X]’s expressed wishes to be genuine and reasoned.
I agree with Mr Reeve’s submission that the Court must weigh any risks of harm to [X] in each household. I am satisfied the Mother has had, and is likely to continue to have, a vulnerability to excessive alcohol use and that she showed a level of naïveté in permitting [X], then aged 9 years, to open a face book account. I find the Mother has been too permissive in relation to safety issues. On the Father’s side, I find he has shown poor insight into the emotional dilemma faced by [X], knowing the Father is so critical of the Mother. I find his past behaviour towards the Mother in front of [X] unacceptable, and am concerned that he continues to “yell” with Ms S at times. I agree with Ms O that the Father would benefit from attending “reflective parenting programmes” to help him gain insight.
[X] is still a young boy. I have decided that at present, the Mother provides [X] with a stronger emotional base than the Father. I agree with Ms O’s assessment[26] that it is in [X]’s best interests “that he have some stability in accommodation, consistent rules and emotional nurturance”. I agree that he is likely to develop greater emotional resilience if in the Mother’s care and will be more settled if he spends the majority of his time with the Mother, and regular time with the Father. Given his young age, the importance of his relationship with the Father, and his need to establish a good relationship with Ms S, Ms S’s son [Z], and his baby brother, [Y], I have decided [X] needs time in the Father’s household every week for the next few years. However, during that period, given his need and wish for a stable home with the Mother, he will not spend overnight time with the Father in the alternate week. [X] will spend 4 nights a fortnight in one block period with the Father and one afternoon until after dinner with the Father in the other week. Each party prefers Thursday to Monday morning rather than Friday to Tuesday morning if a 4 night block is to be ordered. In 2015, when he is due to start high school and his academic life is likely to become more demanding, [X] will spend one block period a fortnight with the Father, (unless the parties agree otherwise) and that block time will be extended to 5 consecutive nights. The afternoon in the alternate week will cease.
[26] Paragraph 48 of Exhibit 1
I have decided that the Mother will be required to restrict her alcohol consumption to two standard drinks each day [X] is in her care. Although Ms Bateman highlights the Mother’s unchallenged evidence that in December 2010 the Father fell and cut his head badly as a result of excessive alcohol use, I am not persuaded that there is a basis for a similar restriction on the Father.
The parties agree that [X] should have the opportunity to travel overseas with either party. I have set out each party’s obligations in the event either wishes to take [X] overseas. The Mother refers in her affidavit to a proposal to travel to the USA in September, but this was not raised by her counsel in submissions, so I have not addressed that proposal further.
Although Ms O says [X] may benefit from psychological intervention “to improve his resilience and prevent the onset of more severe anxiety and distress”[27] I have decided not to make an order for counselling for [X]. It may be that when these proceedings have been finalised, and [X]’s arrangements settled, that he will improve. If not, the parties will need to consider whether counselling might help him.
[27] Paragraph 46 of Exhibit 1
The Mother is presently consulting a psychologist for support for herself and for strategies to support [X]. I urge the Father to consult a child and family therapist to address issues raised in Ms O’s report and in these Reasons for Judgment.
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of [X].
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Sexton FM
Date: 20 July 2012
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