Gassel and Miller
[2012] FMCAfam 436
•11 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GASSEL & MILLER | [2012] FMCAfam 436 |
| FAMILY LAW – Parenting – significant parental dispute over many years as to parental responsibility – consideration as to whether equal shared parental responsibility was in the best interests of the child – serious concerns expressed by family report writer as to effects upon the child of continued dispute – concerns expressed by consultant psychiatrist as to long-term anti-social behaviours by the father and the capacity of the father to change such behaviours – determination that presumption of equal parental responsibility should be rebutted – application of considerations in section 60CC to determine with whom child should live and time to be spent with the other parent. |
| Family Law Act 1975 (Cth), ss.60B(1) and (2), 60CA, 60CC(2) and (3), 61B, 61C(2), 61D(1) and (2), 61DA(2) and (4), 65DAA(1) and (2), 65DAC, 65DAE |
| Lansa & Clovelly [2010] FamCA 80 AIF v AMS (1999) 199 CLR 160 |
| Applicant: | MS GASSEL |
| Respondent: | MR MILLER |
| File Number: | BRC 12617 of 2007 |
| Judgment of: | Coker FM |
| Hearing dates: | 22 and 23 April 2012 |
| Date of Last Submission: | 23 April 2012 |
| Delivered at: | Townsville |
| Delivered on: | 11 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Taylor |
| Solicitors for the Applicant: | Power & Cartwright |
| Respondent: | Self-represented |
| Counsel for the Respondent: | Ms Farr |
| Independent Children’s Lawyer: | Schultz Toomey O’Brien Lawyers |
ORDERS
That the child, [X] born [in] 2002 live with the Mother.
That the Mother and Father be individually responsible for making any day to day decisions concerning the child during the time that the child is in their respective care in relation to issues that are not major or long term decisions.
That the Mother have sole parental responsibility for the child for making decisions concerning the long term issues about the care, welfare and development of the child.
That the father communicate with the child by telephone for a period not exceeding fifteen minutes between 5.30pm and 6.00pm on each Tuesday and Friday with the Father to initiate the telephone call to the child’s mobile telephone number and the Mother to ensure that the child is available to take the call.
That the child spend Easter Sunday morning with the Mother until 12.00pm and the child spend time with the Father on Easter Sunday from 12.00pm to 5.00pm.
That the child spend Mother’s Day with the Mother.
That the child spend Father’s Day with the Father.
That the Father be at liberty to attend the school attended by the child only for the purpose of organised meetings with the school principal or teachers and that on those occasions he not attempt to speak with the child or the Mother.
That each party is not to denigrate the other party in the presence or hearing of the child.
That each party keep the other advised in relation to all health issues of the child.
That these Orders authorise each parent to obtain from the child’s general medical practitioner and specialist or other health care provider such information as the parent may request regarding the child’s condition or treatment at the expense of the requesting party and the Mother to inform the Father of the name and address of any relevant health care provider.
That these Orders authorise each party to obtain from the child’s day-care centre, school or other educational facility such information as the parent may request regarding the child’s progress including but not limited to school reports, notice of parent/teacher interviews, sports days and information to order school photographs.
That the Father not attend any sporting events in which the child participates.
That neither party use illicit drugs.
That the Father be restrained from consuming alcohol whatsoever for 24 hours prior to spending time with the child and throughout the time he spends with the child.
That the Father be restrained from attending any establishment which serves alcohol whilst in the company of the child.
That unsupervised contact take place every second and fourth Sundays of the month between 9.00am and 5.00pm and every third Saturday of the month from 9.00am to closure of the Contact Centre.
Should the [G] Contact Centre open on the first Saturday of every month then unsupervised contact take place every first and third Saturdays from 9.00am to closure of the Contact Centre and every first and third Sundays of the month from 9.00am to 5.00pm with no overnight contact to occur. Until such time as this may occur then Paragraph 14 should remain in force.
That changeover continue to take place at the [G] Contact Centre and in the event the Contact Centre at [G] is unable to facilitate such changeover, then the changeover is to occur at ‘[H] Contact Centre at [M].
The Father to pay all costs associated with Contact Centre changeovers.
IT IS NOTED that publication of this judgment under the pseudonym Gassel & Miller is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
BRC 12617 of 2007
| MS GASSEL |
Applicant
And
| MR MILLER |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to orders sought with regard to the parenting of the child [X]. [X] was born [in] 2002, and is therefore 10 years of age. He is the child of Ms Gassel, whom I shall refer to as the mother, and Mr Miller, whom I shall refer to as the father.
Proceedings were commenced in the latter part of 2007, and it is therefore nearly four and half years that this matter has remained on foot. However, it is clear that there have been various attempts to provide some settled or stable arrangements in relation to parenting, prior to final orders being made, and it has only been in more recent times that, unfortunately, the position between the parties, and the arrangements in relation to [X] have been such that it has been necessary for the matter to proceed to a final hearing.
In that regard, it is clear that the father seeks to further facilitate opportunities for time to be spent by him with [X], whilst the mother continues to have concerns in respect of arrangements with regard to the father’s time with [X] and therefore seeks, in some significant ways, to limit the opportunity for time to be spent by the father with the child, including particularly overnight periods or more lengthy block or holiday-type periods.
As I indicated, the parties have made various arrangements in relation to the parenting of the child on an interim basis. The most recent of the orders made in that regard was the order of 13 May 2010 which provided, basically, for the child to live with the mother and for the mother to have sole parental responsibility for decisions to be made in relation long-term care, welfare and development of the child.
The orders went on to provide for each parent to have individual responsibility for day-to-day decisions to be made, and specifically noted that the father was to have the opportunity to communicate with the child by telephone on Monday, Wednesday and Friday of each week, and also provided the father with liberty to attend at the school attended by [X], for the purposes of organised meetings with the principal or teachers, but not to speak with the child or the mother.
There were also arrangements in place for the father to spend supervised time with the child each alternate weekend at the [G] Contact Centre, depending on the Contact Centre’s availability, for a period of two hours. The orders then went further, such that there were arrangements in place for additional time to be spent by the father with the child. Those arrangements included specifically, opportunities for time each week to be spent by the father with the child, though there was no provision in relation to overnight time, or more extended periods.
The proceedings were initiated in the first instance by the mother. She formally amended her application in relation to this matter to detail the orders that she sought in respect of the proceedings on 17 November 2011. The orders that she sought in relation to parenting of [X] were in these terms:
1.That the child, [X] born [in] 2002 live with the Mother.
2.That the Mother and Father be individually responsible for making any day to day decisions concerning the child during the time that the child is in their respective care in relation to issues that are not major or long term decisions.
3.That the Mother have sole parental responsibility for the child for making decisions concerning the long term issues about the care, welfare and development of the child.
4.That the father communicate with the child by telephone for a period not exceeding fifteen minutes between 5.30pm and 6.00pm on each Tuesday and Friday with the Father to initiate the telephone call to the child’s mobile telephone number and the Mother to ensure that the child is available to take the call.
5.That the child spend Easter Sunday morning with the Mother until 12.00pm and the child spend time with the Father on Easter Sunday from 12.00pm to 5.00pm.
6.That the child spend Mother’s Day with the Mother.
7.That the child spend Father’s Day with the Father.
8.That the Father be at liberty to attend the school attended by the child only for the purpose of organised meetings with the school principal or teachers and that on those occasions he not attempt to speak with the child or the Mother.
9.That each party is not to denigrate the other party in the presence or hearing of the child.
10.That each party keep the other advised in relation to all health issues of the child.
11.That these Orders authorise each parent to obtain from the child’s general medical practitioner and specialist or other health care provider such information as the parent may request regarding the child’s condition or treatment at the expense of the requesting party and the Mother to inform the Father of the name and address of any relevant health care provider.
12.That these Orders authorise each party to obtain from the child’s day-care centre, school or other educational facility such information as the parent may request regarding the child’s progress including but not limited to school reports, notice of parent/teacher interviews, sports days and information to order school photographs.
13.That the Father not attend any sporting events in which the child participates.
14.That neither party use illicit drugs.
15.That the Father be restrained from consuming alcohol whatsoever for 24 hours prior to spending time with the child and throughout the time he spends with the child.
16.That the Father be restrained from attending any establishment which serves alcohol whilst in the company of the child.
17.That unsupervised contact take place every second and fourth Sundays of the month between 9.00am and 5.00pm and every third Saturday of the month from 9.00am to closure of the Contact Centre.
18.Should the [G] Contact Centre open on the first Saturday of every month then unsupervised contact take place every first and third Saturdays from 9.00am to closure of the Contact Centre and every first and third Sundays of the month from 9.00am to 5.00pm with no overnight contact to occur. Until such time as this may occur then Paragraph 14 should remain in force.
19.That changeover continue to take place at the [G] Contact Centre and in the event the Contact Centre at [G] is unable to facilitate such changeover, then the changeover is to occur at ‘[H]’ Contact Centre at [M].
20.The Father to pay all costs associated with Contact Centre changeovers.
The father filed a response to the original proceedings back in April 2010 and has not amended those documents. Quite simply, the father seeks to move forward from the situation that currently exists, and the orders that he sought in April 2010 remain in the form of the order that he wishes to have operating, in relation to parenting. The orders that were sought were in these terms:
1.That the child of the relationship [X] born [in] 2002 live with the mother and spend time with the father at all times agreed to between the parties but failing agreement then as follows:
For a period of one (1) month
(a)From 9.00am to 4.00pm each alternate Saturday and Sunday, with changeovers to occur at McDonalds [G];
(b)Each Wednesday from after school until approximately 7.00pm;
Thereafter
(c)Each alternate weekend from 4.00pm Friday until 5.00pm Sunday, with changeovers to occur at McDonalds [G].
(d)Each Wednesday from after school until 7.00pm, with changeovers to occur at the place where the father takes the child for dinner, such destination the father will provide notice of to the mother by forwarding a text message to her;
(e)For one-half of each gazetted Queensland school holidays with the father spending time with the child for the first half in 2010 and each alternate year thereafter, and for the second half in 2011 and each alternate year thereafter, PROVIDED THAT whoever is spending time with the child during the first half of the Christmas school holiday periods will acknowledge that their time with the child will suspend from 1.00pm Christmas Day so as to allow the parent who does not have the child in their care for the first half of the Christmas school holiday periods to spend time with the child from 1.00pm Christmas Day to 5.00pm Boxing Day;
(f)That the father be at liberty to enjoy regular telephone communication with the child;
(g)For all special occasions as follows:-
(i)On the child’s birthday for a period of two (2) hours in the event that the child’s birthday falls on a school day and in the event that it falls on a non-school, non-contact day, then for up to four (4) hours on that day, PROVIDED THAT should the child be in the care of the father on the child’s birthday, then the mother shall be at liberty to spend up to two (2) hours with the child if the birthday falls on a school day and up to four (4) hours with the child if the birthday falls on a non-school day;
(ii)On the father’s birthday for a period of up to two (2) hours if the birthday falls on a school day and if the birthday falls on a non-school, non-contact day, for up to four (4) hours on the day, PROVIDED THAT in the event that the mother’s birthday falls during a time that the child is otherwise in the care of the father then the mother be at liberty to spend time with the child for up to two (2) hours if it falls on a school day and up to four (4) hours if it falls on a non-school day;
(iii)From 9.00am to 5.00pm on Father’s Day, PROVIDED THAT in the event that Mother’s Day falls on an occasion when the child is otherwise in the care of the father, then the mother shall be at liberty to spend time with the child from 9.00am to 5.00pm on that day.
2.That each party will notify the other by telephone within 24 hours of any major matter relating to the health and well being of the child whilst the child are in the care of that party.
3.That this Order acts as an authority for any doctor, hospital and/or other health professional to provide to the requesting party, at the requesting party’s expense, any information concerning the health of the child.
4.That this Order acts as an authority for the child’s day care/school to provide to the requesting party, at the requesting party’s expense, copies of all school reports, school photographs, and any other documents regarding the academic progress or achievements of the child, and notification of such important events such as parent/teacher events, sports days and concerts.
5.That each party will refrain from denigrating the other and/or their respective partners in front of the child or any other person and shall not expose the child to any other person doing so.
6.That each party will not consume alcohol to excess or be under the influence of illicit drugs whilst the child is in their respective care.
7.That each party will provide the other party with any change of address and telephone numbers within 7 days.
8.Such other orders as this Honourable Court deems fit.
In light of issues of concern, with regard to each of the parents, there being strong suggestions, and in fact, in many instances, admissions of criminal behaviour, domestic violence, drug use and abuse, and alcohol use and abuse, it was deemed appropriate that an independent children’s lawyer should be appointed to represent the interests of the child.
The independent children’s lawyer has taken a number of steps in relation to the proceedings, including obtaining, albeit some three and half years or so ago, a medical assessment of a psychiatric nature in relation to the father, and that report, prepared by Dr C, has been annexed to his affidavit of 20 August 2008.
Dr C was required, only for a short period of time, for cross-examination, and I shall comment in relation to that particular aspect of the matter a little later in these reasons. Dr C also prepared an assessment and report in relation to the mother, though Dr C did not appear, to any real extent, to be challenged in relation to issues with regard to the mother.
Additionally, the independent children’s lawyer facilitated the preparation of a number of family reports by Mr M. Mr M prepared reports dated 1 February 2008, 7 May 2010, 5 November 2010, and finally on 25 March 2011. That final report, however, was not filed as an annexure to an affidavit by Mr M until 12 December 2011. However, it is the most recent report available in relation to these proceedings. I shall, again, comment in relation to the evidence contained within those reports in due course, but intend first, of course, to address issues in relation to the evidence of the parties themselves, as is invariably the case.
The evidence of the mother and the father themselves is most significant in relation to the determination of proceedings, as each takes prime position in relation to the assessments of what arrangements might be most appropriate, in relation to the parenting of the child.
The mother is the applicant in the proceedings and was called first in relation to evidence to be given. I had the opportunity, of course, of reading her trial affidavit filed in relation to this matter and noted, particularly, and perhaps understandably, in light of a recent drug test, that was arranged by the independent children’s lawyer, that the mother corrected one error in her affidavit of 27 February 2012, in that she acknowledged that she did use drugs 11 years ago, but had not used them subsequently.
I note that concession, but also note that, as previously indicated, the independent children’s lawyer commissioned a number of drug tests and assessments, and at least one of those drug tests returned positive for methamphetamine. The mother categorically denied using methamphetamine, and in fact indicated that the only way she could explain the reading in relation to the matter was that she was on heavy cough medicine and that it contained pseudoephedrine.
Reference was made in that regard to correspondence from her doctor, however the indications contained within the correspondence, when subsequently produced, was clearly not to the effect that pseudoephedrine could produce a result of methamphetamine contained within the urine sample that was provided.
The mother, however, categorically denied use of any drugs in a period 10 years, though again, it is perhaps noteworthy that it was the father who raised with her, in his cross-examination, the fact that in, or about, 2004, when visiting the father whilst he was incarcerated, that she returned positive drug tests attempting to attend at the correctional centre and that as a result of that she was denied entry to the correctional centre.
I must say that I was troubled by the evidence that was given in relation to this matter. I note, for example, that the mother had the opportunity to call evidence in response to the specific concerns that arose as a result of a positive drug test being returned. The best that was provided was a rather ineffective comment from her doctor to the effect that she was taking cough medicine which contained pseudoephedrine, but of course, there was no evidence that could specifically be relied upon in that regard, to clarify whether or not a false positive could have been achieved, as a result of the use of the cough medicine.
The best evidence, though again it was of very limited assistance, was that which was provided by the consultant psychiatrist, Dr C. He was cross-examined by counsel for the independent children’s lawyer, and the first line of questioning related to the fact that the mother had returned a positive for methamphetamine in 2010, and he was asked whether he had the expertise to advise whether a false positive could be achieved, as a result of consumption of cough medicine containing pseudoephedrine.
His response was understandable in that he acknowledged, quite properly, that it did not fall within his area of expertise, but he did note that in the course of his work as a consultant psychiatrist that he was called upon, obviously, to consider issues in relation to the psychiatric effect of drug or other illicit substance abuse, and that the best indicator would be that the testing facility would provide an assay in relation to any possible reasons for a positive result, in respect of any drugs that were noted.
He was asked then whether, if the report that was provided did not make reference specifically to that, what could be determined from it, and he indicated, I think quite astutely, that the person returning the positive would “have a problem”. He noted that it could be clarified from the laboratory that had done the tests whether there was some other possible explanation, but without any explanation, the only possible and appropriate finding that I could make in relation to the matter is that the mother had, in fact, used methamphetamine at a time that meant that there was a residue in her system when testing was done.
It is noteworthy, of course, that subsequent to that, further tests were administered, and they returned negative. And I note, of course, that the independent children’s lawyer, in addresses to me, specifically noted that even if it were the case that the mother had used methamphetamine, there needed to be consideration of this family situation in its entirety, and it was submitted that the mother had done a good job in relation to the rearing of [X], and any reading that was of a positive nature should be taken in isolation.
The submission on the part of the independent children’s lawyer was to the effect, that even if the mother had slipped it did not change the recommendations that were made by the independent children’s lawyer, in relation to these proceedings.
I should note, in that regard, that the results showing a positive in relation to methamphetamine troubled me, not so much because there was one positive result in a series of tests that were performed, but more particularly that there was a categoric denial by the mother as to how that might have come about. I must say that with smoke, there is generally fire, and the fact that there was more than one instance of a positive result, noting the acknowledgment by the mother in 2004 that there had also been positive results, and suggestions that it might have come from a telephone that had been touched by another person who used borders on the realms of absolute fantasy. In that particular respect, therefore, I would find that the mother has been untruthful in respect of past use or involvement, since the birth of [X] in drugs, and that the dishonest answer given in that regard, rather than perhaps the actual use is a matter that troubles me, in relation to the final determination of these proceedings.
I note, however, that there are far more significant issues that need to be addressed in relation to this matter, and its determination. The mother spoke, in her affidavit material, and also in her evidence of the concerns that she had with regard to her relationship with the father, it being a relationship that included episodes of domestic violence, as well as alcohol and drug abuse, she acknowledging that there was drug use by her, certainly prior to her pregnancy with [X], but also, perhaps in more recent terms, the parties having separated a significant time ago and a total lack of communication which has meant that arrangements in relation to the parenting of the child have been difficult in the extreme.
In that regard, the mother noted, in cross examination by counsel for the independent children’s lawyer, that there was basically no communication between she and the father, and in fact, the mother, when asked if she could communicate with the father indicated that she could not, as any communication almost invariably results in there being an argument between the mother and the father.
During that cross examination, counsel for the independent children’s lawyer inquired of the mother how the relationship between she and the father could be improved for the benefit of the child. The mother, I think, at least showing some insight into what might be in the best interests of [X], acknowledged that better communication would be the appropriate course to follow, but noted that she did not know how that could be done. She did not, however, consider any steps with regard to the conduct of post-separation parenting courses, or other therapies that might be of assistance in relation to the resolution of the proceedings.
The mother, generally, impressed me, except for the issue of concern that I have already noted with regard to the positive reading in respect of methamphetamine. The mother has taken on primarily, if not exclusively, responsibility for issues in relation to [X], and it appears clear that whilst there have been some difficulties, particularly behaviourally, with the child, including difficulties at school, he has progressed well academically, and is achieving very strong results in relation to school attendances.
The mother was cross examined by the father. In light of her expressed concerns in relation to the father, it must have been a somewhat daunting experience for her. Whilst the father suggested that he had been, as he put it, in his own evidence, “an angry little man” in the past, he did not see any basis upon which the mother could still have concerns about him and interacting with him. That, of course, failed to recognise that the indicators were that there was still a significant degree of concern held by the mother in relation to any interaction with the father, and that that obviously was reflected in the difficulties in communication and exchange between them.
The father, in fact, addressed issues in cross examining the mother directly about her fears, and whilst the mother had previously acknowledged that she was frightened of the father, and went on to describe that feeling as one of uneasiness, she was able to expand, in cross examination from the father, upon those fears to note that she had specific fears for [X] whilst in the care of the father, because there was a concern that the father would take him, I expect, away from the mother, and therefore from her care, as well as not protecting the child when spending time with him. In that regard, reference was made to concerns about an injury the child had when riding a motorcycle at the father’s property.
The mother was asked about those fears, in particular, and noted that they stemmed from threats that the father had made to take the child away from the mother, when the child was one year of age. Of course it needs to be noted that nine years have passed since that time, and the child remains in the care of the mother, generally, with the acquiescence of the father, and if anything, that of itself would be an indicator of the fact that the father does not seek to remove the child from the mother’s care.
In any event, the relations between the mother and the father are strained in the extreme. Communication between them has been difficult, and whilst the mother suggests that the use of a communication book might be a first step in relation to any arrangements with regard to further consultation between the parents, and joint decision making in relation to the child, it would seem that if the past is an indicator of the future, then having been separated for eight years, and there still being serious concerns held about interaction between the parties, certainly from the mother’s perspective, then there are real concerns as to whether the parties are able to communicate to any extent, certainly to an extent that would be required to make joint decisions in relation to the parenting of the child.
As I indicated, the mother was generally an impressive witness. She clearly has provided well for the child, and has sought to ensure that in all respects, [X]’s best interests are met. There is, of course, that overarching concern to which I have referred in relation to drug use, and perhaps untruthfulness on the part of the mother, but generally I was impressed with the mother’s desire to ensure that there was a relationship fostered between [X] and his father, though in circumstances which would be appropriate and protective of the child.
No other witnesses were called on the part of the mother, other than, of course, the expert witnesses to whom I will turn in due course.
Insofar as the father was concerned, I must say that on first reading of the material, I had some serious concerns as to the father and his capacity in relation to this matter. I was therefore pleasantly surprised, and impressed with the father. He is a man who has clearly had his demons in the past. Such issues were noted by both Dr C, in respect of psychiatric examination of the father, and also by Mr M in relation to the four assessments that were provided to the court in relation to the family reports.
Notwithstanding that, however, the father impressed me as someone who had had serious difficulties in the past, but was attempting, albeit perhaps somewhat late in life, to deal with those difficulties. The father, I thought, showed a significant amount of insight in relation to many of the answers that he gave with regard to his own behaviours, and how that would have affected [X]. He was asked, in cross examination by counsel for the independent children’s lawyer, whether he accepted that his alcohol abuse would have affected [X]. Quite immediately, he responded that he did. And also, I thought, with considerable insight into himself, acknowledged that his mental health would have been a factor, but as he noted, and it appears, I thought, significant, those mental health issues were exacerbated in circumstances where it was coupled with alcohol abuse.
Of course, there is no definition available as to how alcohol use might affect issues with regard to the father’s mental health, and the fact that the father continues to drink, he indicating that he enjoyed a drink, and saw no reason not to drink, though not drinking of the presence of the child, were matters that did trouble me.
The father was cross examined in relation to suicide attempts in 2007, and in early 2008, and he again indicated that they had occurred, and that he had sought treatment in relation to them. He noted that he had been referred, by his general practitioner, to a psychologist, Mr U, who had been of very considerable assistance, and rather tragically had died, and therefore the help that was being provided to the father could not continue. The father, however, was adamant that his recent behaviours were indicative of the man that he now was, rather than the man who had previously been involved in a significant amount of criminal and anti-social behaviour, as well as having a serious drug and traffic history, which needed to be addressed.
The father sought to emphasise repeatedly that he was a different man now to the person he was some years ago, though, of course, it was noteworthy and was emphasised on the part of the mother that the father had, in 2008, tried to assert to the report writer and to Dr C that he had changed and had dealt with the many demons that were affecting him, and had moved forward. That was, however, countered by the fact that it was clear that subsequent to those interviews he had had further altercations with police and been the subject of charges arising from an altercation with the police.
The father, in his material, referred to it as a “dust-up”, but it was obviously more significant than that, and it did give rise to some of the concerns that were expressed on the part of the mother and, I think, also were noted by both Dr C and Mr M.
The father has certainly had a wealth of problems in his life. He was, as I noted, describing himself as “an angry little man”, and one who, he said, dealt with frustration in the wrong way. He drank too much. He was involved in criminal activities and drug use and abuse. He, however, impressed me, at least in the court, as being a person who had some real insight into the flaws that existed within his personality, and the attempts to deal with those flaws. He was asked, for example, by counsel for the independent children’s lawyer, what the proceedings were about today. The question arose from the fact that in August of 2008 Mr M had noted in his report that the father had felt victimised by the proceedings, or perhaps even more generally, by life itself.
The father said that he didn’t feel that way, and when asked the question about the proceedings noted that it related to [X] and his wellbeing, rather than issues in relation to the father. He was asked then whether the proceedings were about his, the father’s, right to see and spend more time with [X] and, again, I think with some insight into himself, the father acknowledged that it was about his wish to see and spend more time with [X], but it was also to provide him with further insight into whether that would be right for [X] and in the best interests of the child.
In that regard I must say that I was impressed with the father’s ability to recognise that it was a far greater consideration than just what he might want, but rather an assessment of what might be in the best interests of the child.
The father was cross-examined by both counsel for the mother, and by the independent children’s lawyer, about the many unstable actions and behaviours that have arisen in relation to his life, back to 1984 when the first of his criminal and traffic matters were noted. At that time, having been born in 1964, the father was only 19 years of age, and continued over a lengthy period, some 25 years or more, to behave in a manner which was antisocial and, no doubt, caused fear and trepidation to the mother and, as he grew older, to [X].
Notwithstanding those matters, however, the father was determined to stress that his circumstances have changed. When questioned about whether he thought that he had properly addressed the series of issues that had to be addressed by him, such as alcohol use and abuse, drug use and abuse, and criminality in his behaviour, his response was simply to say, “Look at me now.” In fact, he used that term on a number of occasions, and also referred to him on occasions having “fallen off his perch”, but having gotten back up on the perch.
I accept that the father is not the man that he was 25 or more years ago, but what I am concerned about in that regard is that the father seems to suggest that, having remained out of trouble with the police for the last 12 months or so, puts to bed any concerns that arise from the behaviours of the past two or even three decades. Unfortunately, from the father’s perspective in relation to this matter, he seemed to think that a year of stable or settled arrangements negated 25 years of unsettled and antisocial behaviours, including domestic violence, as well as, of course, drug, alcohol and criminal behaviours.
Both Dr C and Mr M had far greater concerns that such a short period of time was not sufficient to indicate the stable arrangements that the father sought to suggest were in place.
Counsel for the mother cross-examined the father at some length in relation to his criminal and traffic history and, in particular, noted the significant alcohol readings that the father had in 1985, 1989, 1995, 1998 and, finally, in 2008. It was noteworthy that in relation to those readings each of them seemed to, in fact, have grown, and in a period of 23 years the father’s earliest alcohol reading was one of .19 per cent, whilst in 2008 it was a driving under the influence alco-reading of .33 per cent.
The father had learnt little, it would seem, in 23 years, but was very quick to emphasise that he had now learnt from the mistakes of the past and was not a concern to the child, as a result of his behaviours. Unfortunately, I am not so satisfied that that is the case and note, of course, that the experts called in relation to the matter also had similar concerns with regard to the father’s capacity to deal with difficulties, particularly in circumstances of stress or upheaval in his life.
The father was asked particularly by counsel for the mother whether he accepted that others may perceive that he had a drinking problem, and I would have thought that counsel was obviously alluding to the indications that were contained within the reports of both Dr C and
Mr M. The father’s response was similar to so many that had been given by him in relation to many of the issues that were addressed, in that his response was to say that if others thought that that was the case, it was in the past, and that he could see better than anyone else the man that he was now, and how he had dealt with such issues.
He was asked whether he could give up consumption of alcohol totally in order to spend time with [X], and his immediate response was to say yes. In that regard, however, I must say that there remains an element of doubt held by me, because, of course, it would have been so much more emphatic if the father was able to indicate that he had not consumed liquor for a period of 12 months or more in any circumstances, rather than, as he said, just in the presence of the child. It gave rise to a concern that alcohol still took a far more significant role in his life than he was prepared to acknowledge, and it was a matter that did trouble me in relation to these proceedings.
The father has, in my assessment, grown considerably from the young man of 25 or more years ago, and even, I think, progressed significantly from the man who separated from the mother some eight or nine years ago, but he is not, at least at the present time, the man that he thinks he is. In that respect, whilst I do not mean to in any way disparage the efforts that have been made by the father, I note the indications that were given by Dr C about the behaviours of the father, and of the fact that little at the present could be drawn from the fact that the police had not had involvement with the father for the last year or so, other than to say that it was “a hopeful sign”, but that there needed to be a far more lengthy history of appropriate socialised behaviour before there could be more positive findings in relation to the father and his capacities with regard to the parenting of the child.
The father also acknowledged the difficulties in communication that he had with the mother, and noted that it was a two-way street, in that she had not provided him with specific information in respect of various issues relating to the parenting of [X], but that he also had not communicated with the mother, for example, in relation to the purchase of a motor cycle for use by the child at the father’s property and, of course, the subsequent fall that had occurred when the child was using the motor cycle.
The father was not even, in a situation where the child was hospitalised and required treatment, able to call the mother, and whilst there may have been some concerns held by the father that to notify the mother of an accident of that nature would be a breach of the terms of an existing domestic violence order, it really was more indicative of the lack of capacity by either party to communicate with each other, even when it related specifically to issues in respect of the wellbeing and health of the child.
I was troubled by that particular issue, and also by what I must say was a silly but poignant situation which related to the father making arrangements in relation to [omitted] lessons for the child, paying an amount for those lessons, and then not taking any further steps, except to be critical of the mother when she didn’t continue the [omitted] lessons. Of course, the father didn’t communicate with the mother about those arrangements. He did not communicate again with the teacher to whom he had paid, apparently, $50, and did not hear further from him, but did not follow up in relation to the matter himself.
More particularly, the father indicated that he had heard nothing from [X], and seemed almost to put the responsibility for communication in respect of such fundamental issues as the financial responsibilities for payment for courses or extracurricular activities upon the child, rather than recognising that it was an obligation that fell upon him.
The father has, therefore, made progress, no doubt, in relation to this matter, but I unfortunately still have grave concerns that whilst the father’s hopes in relation to the matter are for recognition by all, including particularly the mother and [X], that he is a changed man, the only way that that can be shown is for considerable further time to pass without issues of domestic violence, alcohol use and abuse, and criminal behaviours.
In relation to those issues, I note that both Dr C, the consultant psychiatrist who examined both parties, and Mr M noted concerns in relation to each parent, but particularly the father.
Dr C, in 2008, noted in his assessment of the mother that:
This lady, in my view, does not have any enduring psychiatric illness and I have no immediate concerns about her.
That was, of course, written prior to the return of the positive drug test, but it was not pursued further than the inquiry generally related to what could be taken from that drug test. Otherwise it was clear that Dr C was confident that the mother was able to deal with issues in relation to her parenting of the child, and other issues that arose in her life.
However, in respect of the father, Dr C noted in his report, under the heading Summary and Assessment, the following:
This 43 year old man has in my view a long standing personality disorder in the antisocial and narcissistic spectrum. There is certainly evidence of profound difficulties during his upbringing and he appears to have had problems with self esteem over a long period of time.
He then goes on to say:
He has recently had a significant back injury, is now on a Disability Support Pension, and there is certainly evidence that he has had substantial alcohol difficulties since that time.
He has developed secondary depressive symptoms and is now likely to be involved in extended Common Law Litigation.
Dr C notes, at line 185, the following:
There is little doubt that this man is significantly attached to his son though has had ongoing difficulties in adult interpersonal relationships.
In view of the difficulties, I am of the view that any changes need to be slow, progressive and monitored.
Dr C was asked about those issues that were diagnosed by him, and in particular the suggestion by the father that he was a changed man. He was asked in particular about comments by the father’s general practitioner, Dr T, about whether the past history of mental health problems should be used or not used as the sole leverage against someone. When asked in his professional and, of course, far more specialised experience whether the use of the past to inform of the current situation was an appropriate course to follow, he very determinedly noted that of course that had to be done. He said that the use of the history to form a profile was essential, because without an understanding of any patient’s past history, there could be no context upon which an assessment could be done. He noted, when asked whether history was significant, that in fact it wasn’t just significant, “it was vital”.
In that regard, he was then asked about the statements contained within the father’s material that he had “woken up and changed his life”. Dr C said that if that was the case he would have expected a more stable and considered outlook on life. He would have expected that would have been evidenced both in relation to his dealing with all others, including members of society, and in particular the police, as well as his dealings with the mother and the son. The incident in 2010 involving the charge of assault police was, Dr C thought, simply consistent with the father’s “longitudinal function”. In other words, it was a reflection of the father’s history and showed that there was still some road to be progressed before the father would be able to say, as he purported to suggest, that he was a changed man.
Dr C was asked what would show change, and the doctor’s response was curt and to the point. It was simply this:
An absence of his past behaviours. And if change was to occur, there would have to be external markers such as no use of drugs, no use of alcohol, and that until that could be shown independently, self-reporting was not going to resolve the issues.
Dr C finally was asked by counsel for the mother about his comment at page 10 of his report, that the father showed longstanding personality disorder in the anti-social and narcissistic spectrum. He was asked what that meant, and again, quite briefly, noted that the father had:
A long history of anti-social behaviour and of putting his needs before others.
I was assisted by the assessment of Dr C in relation to this matter.
I turn now to the evidence of Mr M. As I noted earlier in these reasons, Mr M, a consultant social worker, had prepared four reports over a period of three years in relation to this family.
He indicated at the commencement of his evidence before the court, when cross-examined by counsel for the independent children's lawyer, that his recommendations contained within his file report filed on 12 December 2011 noted that in his view there should be a continuation of time between [X] and his father, albeit in an unsupervised fashion, but it should not occur overnight.
Mr M noted in the final paragraph:
I have no confidence in Mr Miller’s capacity to care for [X] for a longer period of time and I think that the chances of more difficulties would occur if it was over a longer period of time. A two day period each alternate weekend would be a more sustainable arrangement.
He confirmed that his view in relation to what was in the best interests of the child had not changed, notwithstanding that a period of perhaps a year had passed since that recommendation was made, because he had had additional opportunities to consider the material provided in relation to this matter.
Mr M was asked about his view in relation to whether the parents could have an arrangement which provided for equal shared parental responsibility. He was short and to the point when he said that the parties don’t have the capacity to work together to make decisions in relation to [X], and in fact, in his assessment, communication would lead to conflict, and that would be harmful to [X]. In his assessment, the only proper course, therefore, was to make an order which provided for the mother to have sole parental responsibility.
He was asked whether, in fact, if there were post-separation counselling effected, that that might assist in working towards better communication and therefore a more functioning arrangement in relation to equal shared parental responsibility. Again, his answer was short and to the point. He suggested the parties have had every opportunity to do that. They have been separated for eight years, and that nothing has been done. If anything, his assessment was that the issues between the parties were more deep-seated than they were four or so years ago, when the first report was prepared, and they have become entrenched.
He was adamant that overnight contact would not be beneficial, and when asked about the father’s attendance at sporting events, it being contended by the father that that would be appropriate, and that in fact [X] wanted that to occur, he again indicated that he did not see that as conducive to the best interests of the child, because the parents coming together at all would be, as he put it, a “recipe for disaster”, and further trauma for [X].
Mr M indicated on a number of occasions that he had little confidence in the father being able to effect the changes that the father was adamant had occurred in more recent times in relation to his life, and in fact, went so far as to indicate that he had little confidence in what the father told him would be the case. There was a general concern on the part of Mr M that the father was not being full and frank in relation to his self-assessment.
Mr M was asked to perhaps attempt as best he could to predict what the current situation would mean for [X] as he got older, and whether any other orders might assist in [X]’s adaptation to circumstances in the future. Mr M said that he had little confidence that any orders would be sustainable, other than those of a limited compass, as suggested by him in his material. He said that he had already formed the view that because of the trauma already experienced by the child as a result of the dispute between his parents, and in particular the behaviours of his father, that [X] would have, in his assessment, a troubled adolescence as a result of the past. He indicated, however, that [X] needs contact with his father, but it needed to be contact in a contained fashion, otherwise the father may be idealised in [X]’s own mind, and that that would not be a good thing for [X].
He was asked then if, recommending sole parental responsibility, that there could be anything that might assist in communication between the parties, even if it were only on a level of the mother keeping the father advised of decisions made in relation to the future arrangements with regard to [X]’s long-term care, welfare and development. Mr M indicated that the mother should inform the father of such matters, but it should be corresponded in a way that meant there was no interaction between them.
He said that he would not recommend more than limited communications between the parents, as he saw that, in fact, as a good thing in benefitting the life of the child. He further noted that contact time by the father, though not being supervised, should still occur via a contact centre so as to again preclude any opportunities for interaction and possible harm to the child.
Mr M was asked in cross-examination by counsel for the mother whether the recent “good behaviour” between the parties, and in particular on the part of the father, could be something that could be relied upon, or rather, whether it was a reflection of the fact that the parties were being scrutinised as the matter approached court. He indicated that in his view it was moderated behaviour, and that there was very little that could be relied upon in that regard until such time as the proceedings were over and there continued to be appropriate behaviours by both parties, in relation to the parenting of this child.
At the conclusion of cross-examination by the father, where he specifically wanted Mr M to acknowledge, and he did, that there could have been changes in the last year or so, though Mr M couched it in terms of “not being totally outside the realms of possibility”, I inquired of Mr M whether an exchange that occurred at one of the interview times between the mother and the father could be interpreted as negative intimacy being forced upon the parties by the mother being late for at least two of the interviews, and therefore requiring the father to wait for longer periods of time, and possibly leading to interaction between them.
Mr M was adamant that late arrivals were not uncommon at the time of interviews, and that, certainly from his assessment, it set off no alarm bells as to the mother seeking negative intimacy. When, flowing from that, a question was directed to Mr M about issues of negative intimacy, he was much more inclined to the view that, if anything, the father’s behaviours in insisting, at least on one occasion, on leaving
Mr M’s interview rooms prior to the mother’s arrival was more an indicator of the father seeking interaction with the mother than any indicator of the mother seeking to act in such a manner.
Again, I was assisted by the evidence of Mr M in relation to this matter, and note in particular the uniformity of concerns expressed by the two experts, Dr C and Mr M, in relation to more extensive arrangements being put in place with regard to the father’s time with [X], at least, one would think, for some years, so that there could be clear indications of the father having changed the behaviours of the past.
It would also seem, of course, relevant that, at 10 years of age, [X] is perhaps not fully able to express his wishes and wants in relation to time with each of his parents, but that over time, the position would perhaps change, specifically with [X] being able to articulate more specifically his wishes in relation to time being extended with his father. If nothing else, in the next few years, one would think that if [X] wished to spend more time with his father, it would simply occur, notwithstanding whatever orders might be put in place.
I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, that the paramount consideration is the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the child. In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA of 80, a decision handed down on 11 February 2010. His Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented through from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136] The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137] Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138] But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139] The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140] No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141] The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142] Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143] “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144] Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145] Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146] Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147] A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148] The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149] If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150] The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151] An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152] Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
Obviously the issue of parental responsibility is one of great significance. Here it is a matter which looms large because of the very divergent position of the parties. The mother’s proposal is that she should have sole parental responsibility for long-term decisions to be made in relation to [X]. The father’s proposed orders are silent on the issue but one can infer from that silence and from the father’s evidence that he clearly seeks far more significant involvement in the decision-making process, such that at least in his view, equal shared parental responsibility is appropriate.
I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.” Exactly that situation arises here. The difference between Lansa & Clovelly and this case, however, is that there was some indication that the report writer in that case was hopeful that a decision about parenting would see an abatement of the conflict between the parties. There was also evidence in Lansa & Clovelly of the fact that the parties had been able, at least in part, to make decisions and to work together with regard to the decision-making process with regard to the long-term interests of the child.
There is no such indication in relation to this matter.
Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, the court must 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.
(2)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.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
As is obvious from the wording of the section itself, the presumption is rebuttable in circumstances where there is domestic violence or other issues that would satisfy the court that it would not be in the best interest of the child. The Independent Children’s Lawyer was adamant that in light of the evidence of the report writer, and the evidence of
Dr C, that domestic violence had been a real factor in the relationship between the mother and the father in the past and, that at least from the mother’s perspective, it still loomed large in her dealings with the father. More particularly, that issue clearly affected the mother’s capacity at least to communicate in any real way with the father, such that the Independent Children’s Lawyer was not of the view that it was in [X]’s best interests for there to be equal shared parental responsibility.
Notwithstanding the father’s submissions that he had changed from the “angry man” that he had been in the past, and that it was, as he put it, “important for [X] that communication occur”, there was little that would satisfy me that there could be a radical change and that certainly would be necessary so as to be satisfied that equal shared parental responsibility would be workable. The mother was not minded to think that that could occur, but more particularly, the strong expert opinion of Mr M was that equal shared parental responsibility would be nigh on impossible.
I am not at all convinced that communication will improve, even on the most basic of levels and in the circumstances, could only consider that suggesting that there should be equal shared parental responsibility would lead to further dispute between the parents and, far more significantly, harm to [X]. I intend to make orders as recommended by the Independent Children’s Lawyer with regard to sole parental responsibility vesting in the mother.
It is not necessary, therefore, to consider specifically the matters contained with section 65DAA, though of course making orders which provide for sole parental responsibility vesting in one parent or the other does not preclude the court from making orders which might be akin to equal time or substantial and significant time. It is however determined in line with those matters that are required to be considered pursuant to the provisions of section 60CC, headed “How a Court Determines What is in a Child’s Best Interests”.
The father, in his proposed orders, does not seek equal time but certainly proposes that there should be substantial and significant time when it is noted that after one month, the father proposes that he should have [X] in his care for four nights each fortnight during the gazetted school term and for one half of the gazetted school holiday periods.
Section 60B sets out the objects and principles which underlie those objects and they are to all intents and purposes reflected in the considerations detailed in section 60CC and particularly in subsections (2) and (3). Section 60B(1) and (2) are as follows:
60B(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) 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
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CC(2) and (3) are as follows:
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
60CC(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) 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;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) 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;
(f) the capacity of:
(i) each of the child's parents; and
(ii) 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;
(g) 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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) 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;
(m) any other fact or circumstance that the court thinks is relevant.
It is necessary to apply these various considerations, at least when applicable, to the evidence in relation to this matter. As to the benefits to the child of him having a meaningful relationship with both parents, it is clear, and was emphasised by the Independent Children’s Lawyer, that [X] has a close and loving relationship with each of his parents and that the parents clearly love the child and want the best for him. No doubt, they are honest and frank in those hopes and expectations, but there is also a wide gulf between what the mother considered to be in [X]’s best interests, and what was considered appropriate by the father.
I have no doubt that [X]’s wishes would be for as much opportunity as appropriate for there to be a relationship with both parents and, of course, particularly with his father but, as noted by Mr M, [X] seems somewhat conflicted, though positive about interacting with his father. Mr M noted “light-hearted banter” between [X] and his father, but also was concerned that [X] may not yet be mature enough to fully appreciate the consequences of more time with his father than what currently occurs, particularly noting that he was already of the view that “[X] will have a troubled adolescence as a result of his past”.
Mr M was adamant that, whilst [X] needed a relationship with his father, because he might otherwise idealise his father, which would not be a good thing, that his time with his father should be arranged in a “contained fashion”. Mr M suggested this as appropriate because, as he emphasised on a number of occasions, he was not confident that any other arrangements would be “sustainable”. Quite simply, the experts and, I think, the mother were of the view that the father had limited appreciation of the obligations and responsibilities that would fall upon him with regard to more time with [X] and particularly, the difficulties in ensuring that on a regular weekly, monthly and yearly basis, he must be available and put the child to the fore.
Unfortunately, whilst I have no doubt that the father is trying his level best, he does not fully appreciate the long-term obligations that would fall upon him, and the need, as was particularly emphasised by Dr C, to show years of stable and considered lifestyle choices. A year’s improvement is good, four or five years stability shows a far greater appreciation of the need for change and in this instance, will also take into consideration the developing maturity of [X] and, as I noted in these reasons, it may in all likelihood be expected that any wishes expressed by [X] at 13 or 14 years of age, will have a far more mature and considered history to be based upon.
When one considers then those matters set out in section 60CC(2)(b), the need to protect the child from physical or psychological harm, the current concerns of the experts and the mother are more fully able to be appreciated and to be seen as factors which must be incorporated in any orders to be made.
I turn then to the additional considerations set out in section 60CC(3). The child’s views in relation to the matter are not clearly able to be assessed in relation to this matter, though I would accept that he enjoys his relationship with both parents and would hope to see that relationship fostered and further developed. The nature of the relationship between [X] and each of his parents is also obviously significant here, but clearly is far more developed as between he and his mother because of the issues of the past relationship between the mother and the father, and the consequential limited interaction between he and his father. I am concerned that the father sees or perhaps hopes that there is a far closer bond between he and [X] than that which actually exists at this time. The closeness of that relationship between the mother and the child is significant and flows into the considerations arising pursuant to the provisions of section 60CC(3)(d).
There, consideration is required to be given to the effects upon [X] of changes that might occur as a result of orders being made, particularly if they were reflective of what the father proposed. I am concerned that the change would be a radical one and that it would significantly affect [X] in a negative manner, such that any changes to the current arrangements would be detrimental to the child.
The distinction to be drawn between the mother and the father when one considers their willingness and ability to facilitate and encourage a close and continuing relationship with the other parent is an obvious one. The mother has shown such a willingness, even in the face of her own difficulties in interacting with the father. The father’s opportunities to foster and facilitate a relationship have been limited, but it should be noted that at the time of the motor-cycle accident, the father was unable or unwilling to even notify the mother himself of the injury to the child, and that does not auger well for future communication between the parties or even the fostering of the relationship with the other parent. It is a factor which weighs heavily in favour of the mother’s proposals.
Matters relating to the difficulty and expense of the child spending time with the parent that he does not live with, is not of great significance here and issues with regard to Aboriginal and Torres Strait Islander cultural considerations do not arise.
The capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs are significant and should be considered in conjunction with those matters that arise relating to the attitude to the child and to the responsibilities of parenthood demonstrated by each parent. There is again an enormous gulf between what the mother has demonstrated in that respect, as opposed to the father.
With the exception of concerns that I have already elaborated upon in relation to drug use, the mother has demonstrated an admirable capacity to provide for the child, physically and emotionally, and as was emphasised by the Independent Children’s Lawyer, has done a good job in allowing [X] to achieve appropriately and to foster his relationship with his father. Balanced against that, are the obvious concerns relating to the father’s continued anti-social behaviours, including not the least, putting his needs before others, as was emphasised by Dr C.
His appalling drink-driving history over 20 or more years, all of which showed increased blood-alcohol readings, are matters also which give rise to concerns as to the father’s stability and his capacity to provide for the child. The fact that he saw no difficulty in continuing to drink, just not in the presence of [X], failed to in any way appreciate the emotional strain that that placed upon the child when alcohol use and abuse and its consequential effect upon the father’s behaviours were so well known to the child.
The father may have turned his life around and established a more settled and stable routine in the last year or so, but there is a far greater need to consider the more long-term behaviours of the father when assessing his attitude to the responsibilities of parenthood. Much more than just a year or so of appropriate socially acceptable behaviour is required before the court, the experts and, most particularly, the mother could be satisfied that there is a change in direction from the “angry man” of so many years past.
Family violence in all its forms has been a factor of this relationship and whilst, again in the short term, family violence has not been apparent, time will be the only proof that the issues which have affected the mother so significantly in her relationship with the father, have been appropriately dealt with.
There is no preferable order which would be least likely to lead to the institution of further proceedings, though the mother’s current proposals provide for a consistent opportunity for interaction between [X] and his father, and whilst there is no certainly into the future, it establishes a routine which, until [X] is of an age where his wishes can be more appropriately considered, ensures that a relationship with the father continues to develop.
In the circumstances, therefore, I am satisfied that the orders proposed by the mother and, I note, supported by the Independent Children’s Lawyer, are those which most appropriately reflect the best interests of the child. The orders of the court will be as indicated at the beginning of these reasons.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Coker FM
Date: 11 May 2012
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