HADDIX & MARRETT
[2013] FCCA 1752
•1 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HADDIX & MARRETT | [2013] FCCA 1752 |
| Catchwords: FAMILY LAW – Proceedings precipitated by the death of the child’s mother – parties to the proceedings are the biological father and ‘step father’ – children’s wishes – Part 15 Court Expert evidence. |
| Legislation: Family Law Act 1975, ss.4, 10B, 10C, 10E, 13C, 60B, 60CA, 60CC, 61DA, 64C, 65C, 65DAA, 65K, 68LA, 69ZT, 69ZV Children & Young Persons (Care and Protection) Act 1998 |
| Knightley & Brandon [2013] FMCAfam 148 Harrison & Woollard (1995) 18 Fam LR 788 |
| Applicant: | MR HADDIX |
| Respondent: | MR MARRETT |
| File Number: | PAC 1977 of 2012 |
| Judgment of: | Judge Harman |
| Hearing dates: | 8, 9, 10 October 2013 |
| Date of Last Submission: | 10 October 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 1 November 2013 |
REPRESENTATION
| Counsel for the Respondent: | Ms Reynolds |
| Solicitors for the Respondent: | Kalmath Lawyers |
ORDERS
That all prior parenting orders with respect to the child [X] born [in] 2000 shall be and are hereby discharged.
That Mr Haddix and Mr Marrett shall have equal shared parental responsibility for [X] provided however that:
(a)Messrs Haddix and Marrett shall be required to consult with each other with respect to major issues decisions (namely the school attended by [X] and any change thereto, specialist and elective medical treatment and/or change of name (sur and fore)) prior to any decision being made with respect to that issue;
(b)
If following consultation no agreement is apparent then
Mr Marrett shall be entitled to determine the issue the subject of the dispute and give effect to that decision and determination;
(c)Each of Messrs Haddix and Marrett shall do all things, sign all documents and give all consents and authorities necessary to cause the details of each to be recorded with any school attended by [X] and as a parent/guardian and emergency contact person and sufficient to allow and authorise each to obtain direct from the school all reports and information (whether written or oral) as they may desire;
(d)Each of Messrs Haddix and Marrett shall do all things, sign all documents and give all consents and authorities necessary to cause the details of each to be recorded with any specialist medical practitioner and the usual GP attended by [X] when with each of Messrs Haddix and Marrett as a parent/guardian and emergency contact person and sufficient to allow and authorise each to obtain direct from such doctor/s all reports and information (whether written or oral) as they may desire; and
(e)Each of Messrs Haddix and Marrett shall, at all times, keep the other advised of their residential address and contact details.
Until 31 December 2016 [X] shall live with Mr Marrett.
Until 31 December 2016 [X] shall spend time with Mr Haddix whilst soever Mr Haddix is resident outside of the greater Sydney Metropolitan Area:
(a)For a period in each of the school holiday periods following completion of Terms 1 and 3 as agreed between Messrs Haddix and Marrett and failing agreement from no earlier than 12 noon (Sydney time) on the first Saturday until no later than 4pm (Queensland time) on the last Friday;
(b)For a period in the school holiday period following completion of Term 2 as agreed between Messrs Haddix and Marrett and failing agreement from no earlier than 12 noon (Sydney time) on the first Saturday until no later than 4pm (Queensland time) on the middle Sunday; and
(c)For a period in the school holiday period following completion of Term 4 as agreed between Messrs Haddix and Marrett and failing agreement:
(i)from no earlier than 12 noon (Sydney time) on the first Saturday after the preceding school term ends until no later than 4pm (Queensland time) 9 January in 2013/14 and each alternate year thereafter; and
(ii)from no earlier than 12 noon (Sydney time) on 9 January until no later than 4pm (Queensland time) on the last Sunday before the resumption of the new school term in 2014/15 and each alternate year thereafter.
For the purpose of [X] travelling between Queensland and New South Wales:
(a)[X] shall travel unaccompanied by air;
(b)Mr Haddix shall book and pay for a return flight/s for [X] and shall provide a copy of the flight itinerary and proof of payment not less than 28 days before the first scheduled flight;
(c)Mr Marrett shall reimburse Mr Haddix one half of the total fare (subject to order 10 hereof) not later than 7 days before the commencement of each period; and
(d)Each of Messrs Haddix and Marrett shall ensure [X] is delivered to the relevant airport to board and be collected from her flights on each occasion
Until 31 December 2016 [X] shall spend time with Mr Haddix whilst soever Mr Haddix is resident within the greater Sydney Metropolitan Area:
(a)Each alternate weekend during school terms from the conclusion of school Thursday until the commencement of school the following Monday (extending to Tuesday if a long weekend or pupil free day) to resume on the first weekend of each school term;
(b)Each intervening Thursday from the conclusion of school until the commencement of school the following day (Friday) to resume on the second Thursday of each term;
(c)For a period in each short school holiday period as agreed between Messrs Haddix and Marrett and failing agreement from the conclusion of school on the last day of term until 6pm on the middle Saturday;
(d)For a period in the school holiday period following completion of Term 4 as agreed between Messrs Haddix and Marrett and failing agreement:
(i)from no earlier than 12 noon (Sydney time) on the first Saturday after the preceding school term ends until no later than 4pm (Queensland time) 9 January in 2013/14 and each alternate year thereafter; and
(ii)from no earlier than 12 noon (Sydney time) on 9 January until no later than 4pm (Queensland time) on the last Sunday before the resumption of the new school term in 2014/15 and each alternate year thereafter.
(e)For a period in the Christmas school holiday period in each year as agreed between Messrs Haddix and Marrett and failing agreement:
(i)from 10am on the first Saturday after the preceding school term ends until 6pm 9 January in 2013/14 and each alternate year thereafter; and
(ii)from 10am on 9 January until 6pm on the last Sunday before the resumption of the new school term in 2014/15 and each alternate year thereafter.
(f)For such further and/or other periods as are agreed between Messrs Haddix and Marrett from time to time.
For the purpose of [X] spending time with Mr Haddix, Mr Haddix shall collect from and return [X] to her school or, if not a school attendance day, Mr Marrett’s home.
Each of Messrs Haddix and Marrett shall be entitled to communicate with [X] at all times when she is not in their care by telephone, Skype, Facebook and other electronic means and each shall, whilst [X] is in their care, allow [X] to communicate with the other by those means.
That each of Messrs Haddix and Marrett shall, within 28 days of these orders, pay to the Legal Aid Commission of New South Wales a sum of $950 each representing one half of the costs of Dr K with respect to preparation for and attendance for cross examination.
Mr Haddix shall pay to Mr Marrett, within 6 months of the date of these orders, a sum of $4,950 representing one half of the amount paid by Mr Marrett to obtain Dr K’s report and with respect to same:
(a)Provided the total sum is paid within 6 months of today’s date interest shall not accrue;
(b)
Mr Marrett shall not, for so long as that sum or any portion thereof remains outstanding, be required to reimburse funds to
Mr Haddix as required by order 5 hereof and the amount that would be payable pursuant to order 5 shall, instead, be credited towards the liability created by this order).
Pursuant to s.65Y of the Family Law Act 1975 the parties and each of them shall be entitled to remove [X] from the Commonwealth of Australia for periods whilst she is in their care provided that an itinerary of intended travel is provided by that party to the other not less than 28 days prior to the intended date of departure and advising the date of departure and return, the travel destination and a contact telephone number and/or email which can be used to contact [X] during [X]’s absence from the Commonwealth.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
NOTED:
In the event that either party files an Application seeking to vary these orders on the basis of [X]’s suggested or alleged expressed wishes and prior to her 16th Birthday it is likely that the Court will not consider that factor alone as constituting a significant change of circumstances, subject to further submissions at that time, sufficient to warrant the reopening of the proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Haddix & Marrett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1977 of 2012
| MR HADDIX |
Applicant
And
| MR MARRETT |
Respondent
REASONS FOR JUDGMENT
These proceedings involve competing applications with respect to future care arrangements for a young person, [X] born [in] 2000.
At the date of Final Hearing [X] is 12 years of age and will, shortly after the delivery of this Judgement, turn 13 years of age.
Parties to the proceedings
For the purpose of the describing the parties to the proceedings I will, for the first and only time, refer to the parties in generic terms.
The parties to the proceedings are:
a)[X]’s biological Father Mr Haddix. Mr Haddix is the Applicant in the proceedings.
b)
The Respondent to the proceedings is [X]’s “step-father”,
Mr Marrett.
Regrettably, [X]’s Mother, [Ms M], is deceased having been involved, and dying as a consequence of her injuries received in, a motor vehicle accident on [date omitted] 2012.
To add further to the tragedy of the proceedings:
a)[X]’s mother, [Ms M], was run over and killed by a school bus upon which bus [X] was travelling; and
b)The Part 15 Expert in these proceedings (Dr K) has made clear, in his evidence during cross examination, that these proceedings have impacted negatively upon [X] in a number of ways including impeding her capacity to properly and appropriately grieve her mother.
I do not propose to refer the parties henceforth other than by their surnames. Thus the Applicant will be referred to throughout as Mr Haddix and the Respondent will be referred to as Mr Marrett. This is to accord each of these gentlemen due respect both through avoiding unnecessary generic titles and, further, to acknowledge that each is a “Father” to [X].
I have, in previous judgements, commented upon the absence of definition within the legislation of the term “parent” (or for that matter the term “family”). Specifically, I have touched upon those matters in paragraphs 39 and 75 of a decision of Knightley & Brandon [2013] FMCAfam 148.
At the conclusion of that portion of the Judgment I had posed the question “Is biology relevant at all?” In the context of this case I am satisfied that:
a)Biology has been a great motivating force (if not justifying circumstance) for Mr Haddix; and
b)Biological connection to [X] of either party (or for that matter the myriad of other adults involved in and interested in [X]’s care) has been largely irrelevant to [X].
I make clear (and will canvas shortly with respect to the jurisdictional basis and standing of Mr Haddix and Mr Marrett respectively) that no disrespect or disservice is intended to either gentlemen by acknowledging that each is or plays a role for [X] as “father”.
Both Mr Haddix and Mr Marrett are clearly, from all of the evidence, considered by [X] as people of great significant (to [X]) and whom [X] loves.
Ultimately and consistent with Full Court authorities[1], a consideration of the relevant legislative provisions necessary to determine future parenting arrangements for [X] will apply and will be considered with respect to each of Mr Haddix and Mr Marrett.
[1] See for example Aldridge & Keaton (2009) FLC 93-421
As is clear from sections 64C[2] and 65C[3], both Mr Haddix and
Mr Marrett have abundant standing to bring application to the Court and participate in these proceedings. Further, it is to be noted by reference to section 65K[4], that each of Mr Haddix and Mr Marrett are entitled to be parties to the proceedings.
[2] A parenting order in relation to a child may be made in favour of a parent of the child or some other person
[3] A parenting order in relation to a child may be applied for by (a) either or both of the child's parents; or (b) the child; or (ba) a grandparent of the child; or (c) any other person concerned with the care, welfare or development of the child.
[4] (1) This section applies if: (a) a parenting order is in force that provides that a child is to live with one of the child's parents; and (b) that parent dies; and (c) the parenting order does not provide for what is to happen on that parent's death. (2) The surviving parent cannot require the child to live with him or her. (3) The surviving parent, or another person (subject to section 65C), may apply for a parenting order that deals with the person or persons with whom the child is to live. (4) In an application under subsection (3) by a person who does not, at the time of the application, have any parental responsibility for the child, any person who, at that time, has any parental responsibility for the child is entitled to be a party to the proceedings
Proposed orders
At the outset of the case an Amended Response was filed in Court by Mr Marrett which, for the sake of clarity, has been marked as an Exhibit [R1]. The Amended Response does not vary, in substance; the relief sought but responds to and addressed Mr Haddix’s relocation to Queensland.
The orders sought by Mr Marrett are as follows:
1. The respondent stepfather shall have sole parental responsibility for the child [X] (“the child”) born [in] 2000.
2. The child shall live with the respondent stepfather.
3. The applicant father is to do all things necessary to enable the child to obtain a passport and any renewal of her passport.
4. The respondent stepfather is authorised to sign all necessary documents and give all necessary permission for the child to obtain a passport.
5. The respondent stepfather shall hold the child’s passport at all times, other than when the child travels overseas with the father as agreed with the respondent stepfather.
6. The applicant father is restrained from arranging or facilitating any counselling for the child without the agreement of the respondent stepfather.
7. If the applicant father lives more than 40 kilometres from the stepfather’s home then the child is to spend time with the applicant father as follows:
a. For each of Term 1, 2 and 3 school holidays – from 9am on the Saturday after the commencement of school holidays to 6pm the subsequent Saturday, the period of 8 days representing half of the 16 day school holidays.
b. For the Term 4 Holidays of December-January – in odd numbered years, from 9am on the Saturday immediately after the commencement of school holiday till 6pm on the 3rd Friday subsequent to the commencement of the visit, and in even numbered years, from 9am on the 4th Saturday after the commencement of the school holidays til 6pm, 2 days before the commencement of school, these periods representing half of the typical term 4 holiday of 40 days.
c. In the event the applicant father is in Sydney, on the giving of 10 days’ notice, subject to the child’s already scheduled activities being accommodated during the visit, and the applicant father providing his Sydney address and contact number,
i. Up to 2 day visit per week, from after school to no later than 8pm;
ii. From after school on a Friday to 6pm Sunday or part thereof.
8. To facilitate the child spending time with the applicant father in order 7 above:
a. The applicant father is to arrange, book and pay for all costs for the child to travel to spend time with the applicant father no later than 14 days before the date of travel.
b. Immediately upon booking the fares the applicant father is to provide the respondent stepfather by email with a copy of the itinerary.
c. Each of the parties shall do things necessary to ensure that the child arrives at the relevant airport with sufficient time to complete check-in, security clearance and to board the flight.
d. In the event the child does not travel by plane to spend time with the applicant father, the applicant father is to collect the child from the respondent stepfathers residence at the commencement of time and return her to the respondent step fathers residence at the conclusion of time.
9. If the applicant father’s residence changes to less than 40Kms from the respondent stepfather’s residence and requires less than 1 hour travel, then the child will spend time with the applicant father as follows:
a. During school terms, every alternate weekend from 9am Saturday to 6pm Sunday;
b. For each of Term 1, 2 and 3 school holidays – from 9am on the Saturday after the commencement of school holiday to 6pm the subsequent Saturday, the period of 8 days representing half of the 16 day school holiday.
c. For the Term 4 Holiday of December –January In odd numbered years, from 9am on the Saturday immediately after the commencement of the visit, and in even numbered years, from 9am on the 4th Saturday after the commencement of the school holidays till 6pm 2 days before the commencement of school, these periods representing half of the typical term 4 holiday of 40 days.
d. Should the child have spent time with the applicant father on the weekend before the commencement of school holidays then, the next weekend visit will be a fortnight after the commencement of the new school term. Otherwise it will be the weekend after the commencement of the school term.
10. For the purpose of the child spending time in accordance with paragraph 8, the applicant father is to collect the child from the respondent stepfather’s residence at the commencement of time and return her there at the conclusion of time.
11. The applicant father is to have telephone time with the child by calling her between the hours of 7pm and 9pm on weekdays and 9am and 9pm on Saturdays, Sundays and Public Holidays.
12. Both parties to advise and keep advised the other within 24 hours of any change of their address, landline number, mobile number, and names and details of all persons cohabiting with them at their place of residence.
13. If the applicant father undertakes holiday travel with the child then the child must be accompanied by the applicant father on any such holidays.
14. If the applicant father intends to travel overseas with the child then:
a. The applicant father is to notify the respondent stepfather of his intention to do so 120 days beforehand and is not to discuss the proposed holiday with the child until the respondent stepfather consents to such travel.
b. The applicant father is to provide a full itinerary including details of travel times and airlines, and dates and addresses and contract phone numbers of proposed accommodation no later than 90 days prior to the proposed travel date.
c. The applicant father is not to travel overseas with the child unless the respondent stepfather consents to such travel.
15. The child’s name is to be removed from the PACE alert system.
16. The applicant father is to pay the respondent stepfather’s costs of and incidental to these proceedings.
Mr Haddix seeks orders in accordance with his filed Application. This would see Mr Haddix having the primary care of [X]. On the basis that Mr Haddix (and [X]) are resident in Queensland, Mr Haddix seeks orders which are, by and large, a mirror image of those sought by
Mr Marrett and which would see [X] living with Mr Haddix and spending time with Mr Marrett for one half [or other period] of each school holidays and for weekends during school terms in the event that Mr Marrett were to travel to the same geographic location as [X].
By the conclusion of the case a position was advanced in submissions by Mr Haddix which I propose to treat as a plea for alternate relief and being that a continuation of the present arrangement [whereby [X] lives principally with Mr Marrett and spends time with Mr Haddix during the school holidays] continue until mid-2014 and that thereafter [X] be interviewed by the Independent Children’s Lawyer or some other person to ascertain her views and that she then live with the parent with whom she expresses a view in favour of.
At the conclusion of the evidence a minute of order was tendered by the Independent children’s lawyer which sought orders in the following terms:
1. That all previous parenting orders be discharged.
2. That the Respondent Step-Father (hereinafter referred to as "Mr Marrett") have sole parental responsibility for the child [X], born [in] 2000 (hereinafter referred to as "[X]").
3. That Mr Marrett shall consult with the Applicant Father (hereinafter referred to as "Mr Haddix") prior to making decisions relating to the exercise of parental responsibility and shall promptly advise Mr Haddix in relation to all decisions which are not made jointly.
4. That [X] shall live with Mr Marrett until the conclusion of the 2016 school year.
5. That whilst Mr Haddix resides outside the Sydney metropolitan area, that [X] spend time with him as follows:
5.1. For one half of each Christmas school holiday period and each school holiday period at the conclusion of Term 2. In the absence of an agreement between the parties, for the first half of each relevant school holiday period in 2013 and 2015 and the second half of each relevant school holiday period in 2014;
5.2. For the whole of each school holiday period occurring at the conclusion of Terms 1 and 3; and
5.3. During school terms and unless otherwise agreed, for up to 2 block periods each term, each block period being not more than 4 days (including the day upon which he collects and returns [X]). Mr Haddix is to provide Mr Marrett with not less than 7 days notice of his intention to spend time in accordance with this order. Mr Haddix is to ensure that [X] continue to attend school as required during any such block period.
5.4. Other times as agreed between the parties
6. To facilitate [X] spending time with Mr Haddix pursuant to orders 5.1 and 5.2, Mr Haddix shall purchase an airfare for [X] to travel from Sydney to the airport closest to where Mr Haddix may reside at the commencement of the relevant period and Mr Marrett shall purchase an airfare for [X] to travel from the airport closest to where Mr Haddix resides to Sydney at the conclusion of the relevant period.
7. For the purposes of Order 5, the NSW School calendar shall be the relevant calendar.
8. That in the event Mr Haddix is permanently residing in the Sydney metropolitan area, that [X] spend time with him as follows:
8.1. During school terms, each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday; and
8.2. One half of each school holiday period, and in the absence of an agreement being the 1st half of each relevant school holiday period in 2013 and 2015 and the 2nd half of each relevant school holiday period in 2014 and 2016; and
8.3. Other times as agreed between the parties.
9. At the conclusion of 2016 school year that [X] shall live with Mr Haddix unless it is no longer her expressed wish and view to do so.
10. In the event that [X] commences living with Mr Haddix in accordance with Order 9, then [X] shall spend time with Mr Marrett in accordance with her expressed wishes and views.
11. That [X] be removed from the PACE Alert System.
12. That in the event either Mr Haddix or Mr Marrett proposes taking [X] for an overseas holiday they shall provide notification of this intention (including an itinerary) to the other party not less than 1 calendar month prior to the proposed holiday.
13. Notation: In the event that either party files an Application seeking to vary the current final orders on the basis of [X]'s expressed views and wishes prior to her 16th birthday, the Court will not consider that factor alone as constituting a significant change of circumstances.
Material considered
In the case of Mr Haddix I have read and considered each of the following:
a)Initiating Application filed 10 May 2012;
b)Affidavit of Mr Haddix filed 10 May 2012;
c)Affidavit of Mr Haddix sworn or affirmed 4 July 2012 and filed the same day;
d)Affidavit of Mr Haddix sworn or affirmed 27 July 2012 and filed 27 July 2012 (incorrectly marked to suggest that the Affidavit was sworn or affirmed 27 April 2012);
e)Affidavit of Mr Haddix sworn or affirmed 9 January 2013 and filed 15 January 2013;
f)Affidavit of Mr Haddix sworn or affirmed 19 June 2013 2013 and filed 27 June 2013;
g)Affidavit of Mr Haddix sworn or affirmed 20 August 2013 2013 and filed 20 August 2013 2013;
h)Affidavit of Mr W sworn or affirmed 30 May 2013 and filed 27 June 2013;
i)Affidavit of Dr D sworn or affirmed 18 July 2012 and filed 19 July 2012;
j)Affidavit of Mr H (the paternal grandfather) sworn or affirmed 12 June 2013 and filed 27 June 2013;
k)Affidavit of Ms H sworn or affirmed 9 January 2013 and filed 15 January 2013;
l)Affidavit of Ms O sworn or affirmed 8 June 2013 and filed 27 June 2013.
In the case of Mr Marrett I have read and considered each of the following:
a)Response filed 15 June 2012;
b)Affidavit of Mr Marrett sworn or affirmed 15 June 2012 and filed 15 June 2012;
c)Affidavit of Mr Marrett sworn or affirmed 24 July 2012 and filed 24 July 2012;
d)Affidavit of Mr Marrett sworn or affirmed 30 July 2012 and filed 30 July 2012;
e)Affidavit of Mr Marrett sworn or affirmed 9 August 2013 and filed 9 August 2013;
f)Affidavit of Ms S sworn or affirmed 9 August 2013 and filed 9 August 2013;
g)Affidavit of [name omitted] sworn or affirmed 9 August 2013 and filed 9 August 2013;
h)Affidavit of [name omitted] sworn or affirmed 9 August 2013 and filed 9 August 2013;
i)Affidavit of [name omitted] sworn or affirmed 9 August 2013 and filed 9 August 2013;
It is to be noted that each of the parties have sought to rely upon multiple Affidavits sworn by the same deponent and particularly by Mr Marrett and Mr Haddix respectively.
It is to be noted that the Federal Circuit Court Rules 2001 allow and permit each party to file and rely upon an Affidavit by each deponent.
On the basis that Mr Haddix, at the time of the trial, is self-represented I have afforded some latitude to him in allowing him to rely upon each of the six Affidavits sworn by him and identified above. That latitude having been extended to Mr Haddix, I have thus also allowed and permitted Mr Marrett to rely upon each of the Affidavits he has identified.
The day is rapidly approaching when parties to litigation before this Court will not be permitted such latitude (whether self-represented or not). Material that is filed in such fashion is (and was in this case) repetitious, difficult to follow and represents a sequential narrative of evidence rather than a concise and erudite document placing all relevant evidence before the Court.
The practice of seeking to rely upon material filed other than specifically for the purpose of trial should not, in any way, be seen as encouraged by the latitude offered in this case which is unlikely to be repeated henceforth.
In the proceedings, three reports have also been received and comprising:
a)Exhibit C1: A report of Dr K dated 6 February 2013 released by order 8 February 2013;
b)Exhibit C2: Child Dispute Conference memorandum 18 June 2012;
c)Exhibit C3: Child Inclusive Child Dispute Conference memorandum 17 July 2012.
Dr K was appointed as a Part 15 Expert and his Report is prepared pursuant to Orders made by the Court (by consent) commissioning same.
Dr K was required and was available for cross examination. Dr K was skilfully cross examined, at some length, by the Independent Children’s Lawyer as well as having been briefly cross examined by Counsel for Mr Marrett. Mr Haddix did not cross examine Dr K.
A number of Exhibits were also received in the proceedings in the case of the Independent Children’s Lawyer:
a)Exhibit ICL1: Records from [C] High School (comprising Semester 1 2013 Report);
b)Exhibit ICL2: Certain tagged portions of material produced by NSW Police;
A number of Exhibits were also received in the case of Mr Marrett and as follows:
a)Exhibit R1: A Minute of Order proposed by the Independent Children’s Lawyer;
b)Exhibit R2: 2012 school reports for [X] from [B] Public School;
c)
Exhibit R3: The notes of Dr D (whom, in addition to providing a report filed as an annexure to the Affidavit of Dr D in
Mr Haddix’s case, also provided his notes in response to a Subpoena) and spent some time in conversation (by telephone) with Dr K; and
d)Exhibit R4: Additional material produced by New South Wales Police.
At the conclusion of evidence and at the commencement of the submission of the Independent Children’s Lawyer a Minute of Order was provided, marked Exhibit ‘ICL 3’.
In Mr Haddix’s case all deponents were required save for Dr D and
Mr W.
In Mr Marrett’s case deponents were not required for cross examination save for Mr Marrett.
Due process
At the time that these proceedings were commenced by Mr Haddix he was legally represented.
On the first few occasions that the proceedings came before the Court, Mr Haddix continued to be represented.
Following Interim Hearing 30 July 2012 Mr Haddix’s attorneys ceased to act on his behalf. Mr Haddix has thereafter appeared self-represented throughout the proceedings
I have been particularly concerned to ensure, as best as I can, that
Mr Haddix has not been disadvantaged by his self-representation in these proceedings. I am satisfied that Mr Haddix has;
a)Received appropriate advice and explanation of proceedings in accordance with directions of the Full Court in Re F Litigation in Person Guidelines (2001) FLC 93-072;
b)Had ample opportunity to raise objections and have such objections heard and determined by the Court;
c)Been afforded the opportunity to cross-examine any witness whom he has required.
At the outset of the case Mr Haddix had indicated that he did not wish to cross-examine any deponent in Mr Marrett’s case, save Mr Marrett. That position was revisited on several occasions during the proceedings.
I accept and appreciate that a self-represented litigant, even one of intelligence and sophistication (a description which more than adequately and appropriately applies to Mr Haddix), is at a disadvantage in conducting their own litigation. That is particularly so in proceedings involving the care and welfare of children wherein a self-represented party has a real and genuine interest in the child’s future care arrangements and welfare and thus has no realistic prospect of being emotionally removed from the proceedings or their conflict.
A further issue with respect to due process arises in these proceedings as a consequence of evidence by each of a Dr D (who has provided a Report and sworn an Affidavit in Mr Haddix’s case) and a Dr S (who has provided two reports annexed to Mr Haddix’s material, although he has not deposed an Affidavit). Each of these two doctors, both psychiatrists have proffered a diagnosis of Bipolar Disorder.
That diagnosis has been referred to by Mr Haddix during the course of the proceedings and on several occasions. Indeed Mr Haddix raised that diagnosis during his cross-examination and in response to a question put to him by the Independent Children’s Lawyer. In response to the question Mr Haddix opined ‘the decision has already made based on my diagnosis of bipolar’ (or words to that affect).
I had sought to reassure Mr Haddix at the time of his statement (and subsequently during submissions when a similar position was advanced) that nothing could be further from the truth. Indeed at the conclusion of the Independent Children’s Lawyer cross examination of Dr K, I specifically referred Mr Haddix to evidence given by Dr K (entirely consistent with that which I had already indicated) that his diagnosis of Bipolar was of no relevance or consequence to the proceedings or determination thereof.
The above position was advanced to Mr Haddix (based in part upon the evidence of Dr K but by reference to the evidence generally) as clearly any diagnosis (and in a consideration of the evidence other factors relating to mental and emotional health will be identified and considered) is not suggested to interfere in Mr Haddix’s functioning, ability to care for himself or [X] nor such as would impeded Mr Haddix’s ability to participate fully and properly as a member of civil society.
The evidence before me establishes clearly and without challenge that Mr Haddix, irrespective of any diagnosis of Bipolar, functions perfectly well, is intelligent and articulate, is insightful with respect to his condition (and the need for ongoing medication), compliant with treatment and is in no way inhibited or impeded by such diagnosis.
Too often in proceedings (a view erroneously expressed by Mr Haddix) the mere existence of a psychiatric diagnosis or condition is taken as being an issue of importance or significance by and of itself. Nothing could be further from the truth especially in this case.
A diagnosis of mental illness or mental disorder only has relevance, in the context of parenting proceedings, in the event that the illness involves symptomology that is untreated and/ or unacknowledged and which impacts or has the potential to impact negatively upon either the parent’s capacity to meet the child’s needs (physical, emotional and/or intellectual) or which, as a consequence of such untreated condition and symptomology arising therefrom, has the potential to engage in behaviour that would be a risk to the child or expose the child to risk.
The evidence in these proceedings does not suggest same. Indeed the evidence would suggest the converse in that Mr Haddix has not only functioned well and met his own needs (and the needs of [X] when she has been in his care) but has taken appropriate steps to ensure the betterment of his condition and life generally (as well as [X]’s) through;
a)Giving up and abstaining from alcohol (one issue having been raised by Dr D being the possibility of the diagnosis of alcohol induced mood disorder rather than bipolar); and
b)Moving, initially away from a peer group that caused difficulty in such abstinence and then, ultimately, as a consequence of financial pressure unrelated to the proceedings, moving to live with his parents in Queensland all for the betterment of his mental health.
All of the above are entirely a credit to Mr Haddix.
In light of the above I am satisfied that there has been no impediment to Mr Haddix in the conduct of his own case during the course of the proceedings and especially during the course of the three day trial.
Chronology of Events
There are many factual issues between the parties and which will be canvased in a consideration of the evidence generally. However, a number of relatively non-contentious chronological events are set out in the chronology provided by the Independent Children’s Lawyer (set out in the outline of case document filed by them) and I incorporate that chronology herein.
1935
Paternal grandfather, Mr H born in NZ
1938
Paternal grandmother, Ms H, born in NZ
1959
Father born in NZ
1972
Father’s currnet partner, Ms O born
1973
Mother (now deceased) born in South Korea
1973
Stepfather born in India
Aug 1997
Stepfather migrated to Australia from India
1998
Father and Mother married
July 1999
Stepfather commenced employment with [omitted] and remains in the employment to hearing.
[omitted] 2000
Child [X] born
2002
Father and Mother separted
Feb 2006
Stepfather and mother met
Dec 2006
Stepfather met the child
Mid 2007
Mother and stepfather commenced a de facto relationship
Dec 2008
Child accompanied mother and stepfather on holiday to Korea
April 2009
Stepfather and mother married
5.5.2009
Parenting orders for the child made between the mother and father
Sept 2010
Father commenced employment with [omitted] and moved to Melbourne
19.9.2010
Father hospitalised after being assaulted
Jan 2011
Father took the child to the Gold Coast for a holiday
Feb 2011
Father moved back to Sydney
2011
Child’s half sibling, [Y] born
Jan 2012
Child travelled to India for a holiday with mother and stepfather
2012
Mother died in a motor vehicle accident
2012
Mother’s funeral
10.5.2012
Father filed Initiating Application commencing these proceedings
11-13.5.2012
Father spent time with the child by arrangement with the stepfather
24.5.2012
Father took the child into his care
15.6.2012
Stepfather filed his Response in these proceedings
18.6.2012
Interim orders made for the child to live week about with the father and stepfather
30.7.2012
Further interim orders made for the child to live with the father each alternate week from the end of school Thursday until the start of school Monday and live with the stepfather for the rest of the week, half school holidays each
8.3.2013
Ms O granted a Partner (Residence) Visa
History of Proceedings
As would be apparent, these proceedings were precipitated by the death of [X]’s mother [Ms M] on [omitted] 2012. Thereafter, the relevant chronology of events as regards the filing of material and the like is as follows:
[date omitted] 2012
[X]’s Mother dies
[date omitted] 2012
Mr Haddix tells Mr Marrett that [X] is transitioning to live with him and his partner
[date omitted] 2012
[X]’s Mother’s funeral occurs.
10 May 2012
Mr Haddix commences these proceedings by filing an Application initiating proceedings.
24 May 2012
Mr Haddix removes [X] from her school, [B] Public School (she had, prior to that time, been living with Mr Marrett and other family members including [X]’s sister [Y]).
1 June 2012
Mr Marrett is served with the Application initiating proceedings only.
7 June 2012
Mr Marrett is served with Mr Haddix’s Affidavit.
18 June 2012
The proceedings come before the Court on the first occasion. The parties are directed to attend a Child Dispute Conference (which occurs that day) and following the conference the matter is re-mentioned and orders and directions are made as follows:
a) Parties and [X] are to attend a Child Inclusive Child Dispute Conference 17 July 2012.
b) Directions are made for the filing of further material by both Mr Haddix and Mr Marrett.
c) The matter is listed for Interim hearing 30 July 2012
d) Interim Orders are made for [X] to spend one week with each of Mr Haddix and
Mr Marrett on a rotating basis pending Interim hearing.17 July 2012
The parties and [X] attend a child inclusive Child Dispute Conference.
30 July 2012
Interim hearing occurs on a contested basis. At the conclusion of the Interim hearing orders and directions are made:
a) Appointing an Independent Children’s Lawyer;
b) Placing [X] on the Airport Watch List;
c) Providing for [X] to live with Mr Haddix each alternative weekend from after school Thursday until before school Monday (during school terms); and for half of each of the short school terms NSW School Holidays.
d) For [X] to otherwise live with Mr Marrett at all other times; and
e) For the parties to attend family counselling services through Unifam (which Counselling Services have subsequently been utilised to completion).
14 September 2012
Orders are made by consent appointing Dr K as the Court’s Expert funded at first instance by
Mr Marrett30 November 2012
Mr Haddix moves to Queensland. Thus, the time arrangements vary so that [X] spends time with Mr Haddix during school holidays only
12 December 2012
Proceedings are listed in anticipation of release of Dr K’s report. However, the report is not available and the proceedings are thus adjourned and it is noted that the parties are attending Family Dispute Resolution (which has subsequently occurred and been completed). Further interim orders are made by consent providing for [X] to spend a period of time with Mr Haddix during the forthcoming Christmas School Holidays.
February 2013
Part 15 Report released.
11 February 2013
Proceedings are listed for trial. Trial dates were initially fixed for 4 – 6 September 2013 but varied due to judicial commitments, such that the hearing is the scheduled occurred 8 – 10 October 2013.
Witnesses
As the Applicant Mr Haddix was required for cross-examination and gave evidence first.
Mr Haddix was cross-examined at some length by each of Counsel for the Respondent, (Mr Marrett), and the Independent Children’s Lawyer.
As indicated above the majority of witnesses as relied upon by
Mr Haddix were also required for cross-examination.
Mr H (the paternal grandfather) was cross-examined immediately following Mr Haddix whilst Ms H (the paternal grandmother) and
Ms O (Mr Haddix’s partner) were interposed following the cross-examination of Dr K and Mr Marrett (they not being available prior to that time and the interposition occurring with the knowledge and consent of the parties and the Independent Children’s Lawyer).
The Family Consultant who completed the Child Dispute Conference and Child Inclusive Child Dispute Conference Memos was not required for cross- examination (and was, in any event, on maternity leave and unavailable).
I do not propose to set out in detail the evidence or cross-examination of any party or witness but make clear that all of the material identified above has been read and considered as has the cross-examination of each party, and the answers given by them during same, has been taken into account.
I propose to deal with specific portions of the parties’ evidence by reference to the issues as identified by the parties and the Independent Children’s Lawyer in closing submissions. That is not to suggest, however, that all evidence has not been considered and where appropriate I will specifically identify portions which relate to factors that have been addressed by me and relied upon in arriving at findings of fact or a determination of proceedings at large.
Whilst all relevant portions of the legislative pathway were addressed (particularly by the submissions of the Independent Children’s Lawyer) two clear and specific issues were identified as potentially determinative or dispositive of the proceedings, namely:
a)[X]’s developmental needs now and in the foreseeable future; and
b)[X]’s views and the weight to be attached to same.
In light of the clear identification of these primary issues (although I make clear that the proceedings are determined, as a whole, by reference to the totality of relevant factors identified in s.60CC and which I will deal with individually) and by reference to [X]’s best interests’ as the paramount consideration. I will deal in some detail with evidence that relates to each of these issues.
The case of Mr Haddix is firmly rooted in the suggested clear and unequivocally expressed views of [X]. Indeed [X]’s views have been referred to throughout the evidence by a variety of terms including “views” (the appropriate terminology under the legislation), “wishes” and “desires”.
In short, the position of Mr Haddix is that [X] has a deep and genuine desire to live with him and to not live with Mr Marrett.
The case of Mr Marrett is firmly rooted in two propositions, mainly that:
a)[X]’s overall best interests and particularly her developmental needs are best served through her continuing to reside with him; and
b)Little weight would be attached to any views expressed by [X] both having regard to her particular personality style and to what is suggested (and referred to in the evidence of Dr K) as coercion (whether active or passive) applied by Mr Haddix towards [X].
The Independent Children’s Lawyer has conducted their case to the highest standard, cross-examined zealously and thoroughly and has put before the Court detailed and considered submissions which address each of the above positions and the interplay between them.
Evidence with respect to [X]’s views
There is no issue on the evidence that [X] has expressed to Mr Haddix, to Mr Marrett (on at least two occasions) and to Dr K, a view which discloses a preference to live with Mr Haddix.
I deliberately adopt and propose to apply the term “view” to a discussion of the evidence irrespective of the manner in which the parties have referred to any expression or statement made by [X].
It is to be noted, irrespective of any other issue relating to [X]’s views that:
a)[X]’s views are admissible, whether as representations made directly to the Part 15 Expert Dr K or to others, as evidence of a ‘representation by a child’ (and thus admissible pursuant to s.69ZV);
b)Section 69ZV(3) provides clearly that the Court may give such weight (if any) as it thinks fit to such evidence. The definitions contained within s.69ZV make clear that representations may be expressed or implied, oral or in writing, or inferred from conduct.
c)The International Convention on the Rights of the Child (incorporated in its totality into the objects and principles set out in s.60B of the Family Law Act) requires that the views of children be ascertained and given appropriate weight in decisions in relation to the child’s welfare and so that a child has a “voice” in the proceedings and decisions that affect them.
The Independent Children’s Lawyer and [X]’s views
As regards the Independent Children’s Lawyer and children’s views, specific obligations are imposed upon them, including:
a)The Independent Children’s Lawyer has a specific duty (s.68LA(5)(b)) to ensure that:
… any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the Court.
b)Additionally, by sub-s.(C), the Independent Children’s Lawyer is required to analyse any report or other document to identify those matters which the Independent Children’s Lawyer considers to be the most significant in determining what is in the best interest of the child and ensuring that those matters are properly brought to the Court’s attention.
Notwithstanding the above obligations (which have been wholly and competently discharged) the Independent Children’s Lawyer is not obliged and does not represent the child in a fashion that would compel them to adopt a particular course of action on direct instruction from the child. Such models of direct instruction may apply under State legislation, (see for example the Children and Young Persons (Care and Protection) Act 1998 as regards the representation of children over the age of 12 years), but are foreign to the role of the Independent Children’s Lawyer under the Family Law Act 1975. Indeed this is made expressly clear by s.68LA (4).
In short the Independent Children’s Lawyer is not a slave to [X]’s views nor are they required to accept any view expressed by her unquestioningly.
Section 68LA(2) obliges the Independent Children’s Lawyer to:
a)Form an independent view based on the evidence available to the Independent Children’s Lawyer, of what is in the best interest of the child; and,
b)Act in relation to proceedings in what the Independent Children’s Lawyer believes to be the best interests of the child.
The above is further addressed by s.68LA (3) which provides:
The Independent Children’s Lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
In light of the above the Independent Children’s Lawyer is entitled to place such submission before the court as they may wish and irrespective of any views suggested to be expressed by the child. The obligation of the Independent Children’s Lawyer in those circumstances, is to both:
a)Ensure that the child’s views are placed before the Court (which duty has been abundantly discharged through the commissioning of Dr K’s report); and
b)Provide reasoned submissions to explain the position adopted by the Independent Children’s Lawyer to the extent that it is contrary to the child’s views (which views are one of a myriad of factors to be considered by the Court and by the Independent Children’s Lawyer in forming their own independent view).
I am labouring that point to make clear that the views expressed by [X], whilst their content is not in dispute, are:
a)A matter for weight;
b)Not necessarily and by and of themselves dispositive or determinative of the proceedings;
c)To be properly and fully considered.
I will address the above matters in a consideration of the relevant provisions of the Act (and in particular s.60CC(3)(a)) and through a discussion of the case law relating thereto. However, at this point I need do no more than note my satisfaction that the Independent Children’s Lawyer has fully and properly discharged their role in relation to the representation of [X]’s interests including an appropriate presentation and address of factors relating to her expressed views.
Mr Haddix’s Evidence
As Mr Haddix has placed reliance upon [X]’s views and as those views have been suggested by him to be the fulcrum upon which the determination balances, I would propose to turn firstly to his evidence.
In his initial Affidavit filed 10 May 2012, Mr Haddix did not lead evidence suggestive of any view expressed by [X] either to him or any other person. This is so notwithstanding that the general tenor of
Mr Haddix’s evidence is that he had taken [X] into his care on 24 May 2012 as it was “what she wanted”.
There is no controversy, on the evidence, that [X] passed into the care of Mr Haddix on 24 May 2012 and by Mr Haddix attending at [X]’s then school ([B] Public School) without notice to Mr Marrett and removing [X] from the school prior to the conclusion of the school day.
I do not accept that Mr Haddix’s actions in removing [X] from her school on 24 May 2012 were, at that time, primarily based or founded upon his desire to “fight for” (the terminology used by Mr Haddix in his evidence and including interviews with Dr K) [X] and for that which she desired. Indeed, the totality of Mr Haddix’s evidence, including that arising from cross examination, would make clear and I so find:
a)On [date omitted] 2012 (two days after [X]’s mother had died) Mr Haddix had indicated to Mr Marrett that [X] was to transition to his care. At that time there is no suggestion in any of the evidence (including that of Mr Haddix) that [X] had expressed any view to any person (including Mr Haddix) that she desired that this should be so.
b)Mr Haddix’s evidence during cross examination had been that his first discussion with [X] regarding her views had been approximately four days before she was taken by him into his care (that is on or about 20 May 2012). By this time it is clear (indeed it was clear since 4 May 2012) that Mr Haddix had formulated the intent and desire to have [X] pass into his fulltime care. That desire of Mr Haddix would appear to have been based, at its most generous, upon a sense of proprietorship. At its worse it was based upon a misguided sense of competition and one up man ship as regards Mr Marrett. On either motivation it was other than focused upon [X].
At this time (i.e. 24 May 2012) it was conceded by Mr Haddix in cross examination that:
Question: Before you decided to take [X] from school did you speak to her?
Answer: Yes. I told her she was coming to live with me.
Question: Did you tell [X] you were collecting her from school that day?
Answer: No
Shortly later, and in response to a question as to what conversation occurred with [X] in which she expressed her “desire” to pass to live with Mr Haddix, Mr Haddix responded:
I asked her “how would you feel about living with me?” and she answered “that would be good”. I didn’t want to give her the impression that she had to.
Mr Haddix suggested that he had spoken to a significant number of persons and obtained advice from them, regarding his proposed actions as ultimately undertaken, to take [X] into his care. It was suggested by Mr Haddix that the persons who had supported his action had included his partner, Ms O, his parents and each of them, a number of parents of other children attending [X]’s school and, importantly, the Principal at [X]’s school, [X]’s classroom teacher, and Mr Haddix’s lawyer and psychiatrist.
The advice received by Mr Haddix from his lawyer was, appropriately, not canvassed in cross examination. However, that reported by Dr D (Mr Haddix’s treating psychiatrist) and each of the school Principal (Ms A) and classroom teacher (Ms S) would appear, in light of the evidence of Dr K, to be other than as described by Mr Haddix. No evidence was called by any parent of any other child to corroborate that asserted by Mr Haddix.
Overall, I am satisfied that Mr Haddix’s actions, in taking [X] into his care on 24 May 2012, were focused less upon any view or “desire” expressed by [X] to live with Mr Haddix (or not live with Mr Marrett) than upon Mr Haddix’s belief as to and focus upon his “legal rights as her biological father” (as he has referred to in his evidence).
Mr Haddix asserted repeatedly throughout his evidence (both his Affidavit evidence and during cross examination) his “right” to take [X] into his care and the affirmation of those rights by persons as described above.
From a further consideration of the evidence relied upon by Mr Haddix with respect to [X]’s views, it is clear that in the Affidavit of 4 July 2012 views are not raised at all.
In the Affidavit of 27 July 2012, views are dealt with in paragraphs 10, 11, 19 and 20.
Whilst I have referred to the above paragraphs as addressing [X]’s views, what is clear therefrom is the absence of any assertion of a clear view expressed by [X].
Mr Haddix opines in the above material (largely consistent with the evidence of Dr K to which I will return shortly) that:
I am concerned about what I have witnessed in [X]. At times she is overexcited and exceedingly talkative and happy and other times I have observed her become withdrawn and quiet. I have also witnessed those events prior to the mother’s death. [X] also has trouble making decisions and unless she is asked a direct question she will rarely state her position [emphasis added].
Paragraph 11 of the Affidavit relates a conversation between
Mr Haddix and [X] regarding her attendance upon the family consultant Ms K. Complaint is raised within that paragraph that the family consultant had not asked [X] with whom she would prefer to live (the evidence of Ms K, to be addressed shortly, is at odds therewith). Curiously the paragraph ends with the following:
I then said to her “Did the psychologist [Ms K] ask you where you wanted to live?” to which she replied “No”. She then said “should I have said where I wanted to live and that you were my dad and I love you?” to which I replied “It would have helped if you told them what you really wanted”. She then started to cry and said “Sorry dada, I want to stay living here with you”. I comforted her and said “Everything should be ok on Monday” [the next Court event] or words to that effect.
Paragraph 19 of the Affidavit deals with matters connected with decisions for [X]’s school and her suggested, expressed preference in that regard (although Mr Haddix’s later evidence casts some doubt upon the veracity of that view).
In the Affidavit of 9 January 2013 [X]’s views are raised substantially and throughout the Affidavit. It is the primary theme of the Affidavit being dealt with in paragraphs 1, 2, 3, 4, 6, 7 (and Annexure ‘A’ referred to therein), 9, 10, 12, 13, 14, 16, 19 and especially paragraph 20.
It is to be remembered that the Affidavit of 9 January 2013 follows upon the Child Inclusive Child Dispute Conference in which, without canvassing it in any more detail at this time, [X] expressed no preference for her future living arrangements save:
[X] said that it would be her preference not to live in a week about parenting arrangement… [X] looked visibly pleased when discussing possible spend time with arrangements and it was discussed that some children live primarily with one care giver and spend more than just every second weekend with their other care giver, for example a Thursday to Monday each alternate weekend……
[X] said that she always wanted to see both Mr Haddix and Mr Marrett. She said she could live primarily with either Mr Haddix or Mr Marrett.
It would appear that following that Child Inclusive Child Dispute Conference and, indeed, following the report interviews with Dr K (which occurred on 5 November 2012) that the focus of Mr Haddix’s evidence turned to [X]’s views. Prior thereto issues relating more specifically to criticism of Mr Marrett had been the focus of
Mr Haddix’s evidence.
The Affidavit of 9 January 2013 includes an annexure (Annexure A) which purports to be a letter written by [X] and addressed to “Judge Harman” and which reads:
I really want to live with my Dada in Queensland but I’m really upset it is taking ages. Please help me be able to live with Dada. And also please help me be able to spend Christmas with my Dada. I told [Mr Marrett] I want to live Dada and spend Christmas with my Dada but he does not seem to listen.
Thanks
[X]
The wording and content of this letter is very much reflected in the submissions put by Mr Haddix at the closing of his case.
Whilst [X] is reported as having expressed no preference during the Child Inclusive Child Dispute Conference on 17 July 2012, Mr Haddix refers to this in his evidence (paragraph 3) as:
Whilst she expressed to the CDC on 17 July that she would prefer not to live in a week about parenting arrangement…it was her expectation she would be living with me and visit her step-father and sister.
Thus, it is suggested that one should disregard the following paragraph of the memo or read it in a fashion that infers a clear yet unstated preference.
In a similar vein, paragraph 4 indicates:
[X] is eagerly waiting to be interviewed by the ICL as she wishes to tell the ICL what she wants and how she feels about the current living arrangements…she is aware the ICL is her lawyer representing her in court and looking after her best interests.
This represents a fundamental misunderstanding of the role of the ICL as an advocate for [X]’s best interests rather than an advocate for [X].
Perhaps the most significant paragraph of the Affidavit (particularly as it is mirrored in Mr Haddix’s evidence during cross examination) is paragraph 20 thereof which reads:
Recently I discussed with [X] how she would feel if the court decided to leave her with the step-father. She said it would be really upsetting and she would go to court a third time and tell the court she wanted to live with her Dada and this time they would have to listed or words to that effect. I told her that I would keep fighting for this to happen and I would never stop [emphasis added].
During his cross examination, Mr Haddix gave answers to questions posed by the Independent Children’s Lawyer reflective of this passage.
At the time those answers were given, the Court had enquired of
Mr Haddix whether he had read Joseph Heller’s Catch 22 and summarised the portion thereof dealing with Yossarian’s dilemma, namely:
There was only one catch and that was Catch-22, which specified that a concern for one's safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane he had to fly them. If he flew them he was crazy and didn't have to; but if he didn't want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.
By analogy to Mr Haddix’s evidence it was put to him that the same circumstance arose in this case, namely that:
a)[X] was fully aware that Mr Haddix wished for her to live with him and accordingly that was the view he wished her to express;
b)Whilst soever she expressed that view to him, Mr Haddix would continue to fight;
c)[X] desired an end to the conflict and thus, in all probability, would continue to express to Mr Haddix the view he wished to hear; and
d)In the event that [X] expressed any contrary view (that is, that she did not wish to live with him or wished to live with Mr Marrett), Mr Haddix would be convinced [X] had been manipulated by somebody else (presumably Mr Marrett) and would therefore never believe her if she said so and would continue fighting anyway.
Mr Haddix denied any such circumstance was in play in this case. The acceptance of such a circumstance is inherent in and canvased in some detail by the evidence of Dr K.
The Affidavit of Mr Haddix sworn 19 June 2013 makes some reference to [X]’s suggested views. This is particularly so as regards paragraphs 10(b), 17, 37, 43 and 44.
The evidence in this Affidavit returns to the proposition that:
The decision to take [X] into my care on 24 May 2012 was made with a lot of thought and consideration and was based on the following…(b) a conversation I had with [X] before taking her into my care.
That evidence is dealt with above. However, clearly the decision had already been made by Mr Haddix as evidenced by his raising the matter with Mr Marrett on 4 May 2012 and having filed his application seeking that it be so on [date omitted] 2012 (being the day after the mother’s funeral).
In paragraph 17 of the Affidavit, Mr Haddix proposes as follows:
Before taking [X] into my care on 24 May 2012 I discussed with [X] how she would feel about living with [Ms O] and me. She said “Yeah it would be good and I can visit [Mr Marrett]”.
Paragraph 37 commences with:
[X] informed me that on or about 27 November 2012 she approached the Respondent and told him that she wanted to live with her dad and he got upset and said bad things about me which upset [X].
That incident is consistent with evidence given by Mr Marrett in his Affidavit sworn 9 August 2013 and commencing at paragraph 19.
Mr Marrett indicates that, on that occasion, he was driving [X] to a final session of counselling that had been arranged for [X] with Unifam. Mr Marrett indicates that on the preceding evening ([X]’s birthday) she had spent time with Mr Haddix and whilst they were driving to the appointment Mr Haddix had phoned [X].
Upon arriving at the appointment it is suggested that [X] then said to Mr Marrett “I really, really want to visit you but I want to live with Dada”. It is suggested Mr Marrett responded, amongst other things, with “Are you suddenly feeling sad that your dad is leaving tomorrow and that’s why you want to go with him?”
Whilst this proposition was denied, it is to be noted that:
a)Interviews with Dr K had occurred some weeks earlier, 5 November 2012;
b)Mr Haddix had indicated to Dr K during the appointments that he was intending to move to Queensland; and
c)It would appear, from the totality of the evidence, that the proposed move to Queensland had been made known to [X] at about the time of and immediately prior to interviews with Dr K but had not been made known to Mr Marrett until after the interviews with Dr K (and the report was not released until some months later in February 2013).
Mr Marrett deals with this in paragraph 23 of his Affidavit indicating:
Given that [Mr Haddix] only informed me of his decision to leave Sydney long after he told [X] so and after [X] mentioned her desire to move to live with him to Dr K but before [X] mentioned the same to me, I verily believe that [X] had been persuaded, explicitly or otherwise, to only mention at a later date, [Mr Haddix]’s decision to move to the Gold Coast or her desire to follow to live there with him.
Continuing at paragraph 24 Mr Marrett opines:
I verily believe that [X]’s statement that she wanted to live with her father has been made under circumstances that were coercive as presented to her.
Mr Haddix’s final Affidavit, being that sworn or affirmed 20 August 2013, does not refer to [X] or her suggested views at all, (it simply annexes a report by Mr Haddix’s present treating psychiatrist)..
The Affidavits of Mr H and Ms O each refer to occasions when it is suggested that [X] has discussed her views with each of those deponents.
The evidence of Mr H
Mr H deposes at paragraph 21 of his Affidavit:
I took the opportunity to talk to [X] privately on 19 April 2013 whilst she was holidaying with her father on the Gold Coast. I told her that she does not have to say anything if she does not want to but if she does to truthfully tell me how she feels about the court matter and living with the step-father in Sydney.
The description within that paragraph is somewhat curious and would appear to approximate a “miranderising[5]” of the child.
[5] See Miranda v. Arizona, 384 U.S. 436 (1966) regarding the right to silence and the evidential use of responses thereafter voluntarily given
The following paragraph (paragraph 22) then seeks to set out nine matters that [X] is suggested to have stated including (sub-paragraph (b)) “Mr Marrett and his family are not her real family and she wants to be with her real family and her real dad” and ( at sub-paragraph (c)) “That [Y] [[X]’s younger sister] gets most of the attention and she does not like this”.
Complaints are also raised by Mr Haddix senior regarding Mr Marrett and his family speaking in “their own language”, [X] being “not happy living with Mr Marrett”, [X] having told Mr Marrett “on two separate occasions” that she “wants to go and live with her father”, that she “wrote a letter to the court”, “is expecting to talk to the ICL” and that “when I asked [X] if the lady [Ms K at the Child Inclusive Child Dispute Conference] had asked her where she preferred to live [X] replied ‘No’”.
The similarity between Mr Haddix’s evidence and that of his father,
Mr H, is striking. Further, the focus upon what may be considered to be (although I make clear that the evidence does not suggest a finding could be made to that affect) the manufacture of an alternate explanation for the absence of a preference expressed by [X] to Ms K is, at least, curious.
I am not satisfied that Ms K, following the Child Inclusive Child Dispute Conference, has reported her conversations with [X] other than accurately. Her evidence has not been challenged.
Ms K’s evidence, clearly and within its context, is that [X] did not express a preference, had abundant opportunity to do so, and was clear that she could live primarily with either Mr Haddix or Mr Marrett.
Ms O’s evidence
Ms O’s evidence troubles me.
My concerns with Ms O’s evidence are on a number of bases not the least of which is that Ms O made a report to the Department of Family and Community Services following her attendance at the hospital (at which Mr Marrett, Mr Haddix and various members of Mr Marrett’s extended family were present) on 2 May 2012.
On that occasion Mr Marrett was clearly upset and distressed (as one would expect his wife having just been killed) and is suggested to have laid on the bed next to [X], hugged her and, in the evidence of Ms O, “put his leg over her” or “laid on top of her” (although the former was clarified as that actually observed).
Mr Haddix suggested that the report had been made by Ms O as she had been concerned that it represented sexualised behaviour.
Mr Haddix sought to distance himself from the report suggesting that he did not believe that the behaviour was sexualised and that he merely thought the behaviour “bizarre”.
In her cross examination Ms O sought to explain her actions in contacting the Department in most disingenuous fashion.
When it was put to Ms O that she had, in fact (and as described by
Mr Haddix), held concern that the incident was some form of sexual abuse or at least sexual risk, she disavowed that proposition. However, Ms O then went on to insist that:
You worry something might happen like abuse. He’s grieving as a husband. He’s building his family. He still has the longingness for his wife. I’m not saying that he’s done something, but why wait? I’m not saying he’s going to do something, but he might not refrain.
Mr Marrett and various members of his family sat stoically through
Ms O’s evidence notwithstanding how hurtful and offensive they would no doubt have found it. Indeed, to the extent that it was suggested by Ms O that there was, or could in the future be, some form of risk to the child, such offence is well placed. Ms O’s evidence, at least in that regard, was, I am satisfied, distasteful and disingenuous.
Ms O also sought to assert that Mr Marrett did not look after [X] well, was concerned that if Mr Marrett re-partnered “where would [X] stand in all of this?” and similar matters which were dismissive of the level of care that has been provided by Mr Marrett to date and, I am satisfied, would be provided in the future.
I was also unimpressed with Ms O’s aversion and avoidance of cross examination relating to an incident which had occurred between she and Mr Haddix and when the police had been called.
The COPS event entry with respect to that attendance is in evidence. When pressed with respect to the details recorded by the Police and the accuracy of that recorded by the Police, Ms O, whilst initially denying aspects of the record and affirming “it didn’t happen that way”. When further pressed Ms O then insisted “I cannot remember the incident anymore. I can’t remember”.
Whilst the COPS event entry is admitted as a business record[6], I am satisfied, notwithstanding that the authors of the report have not been called and are thus not available for cross examination, that I should prefer the version of events set out in that document to those provided by Mr Haddix or as represented Ms O’s denial that events occurred in that fashion or are simply not remembered by her.
[6] Section 69 of the Evidence Act 1995 (Cth)
Ms O also refers to [X] expressing a desire to live with Mr Haddix.
As would be clear from the above, Mr Marrett does not dispute that [X] has expressed to him a view regarding living with Mr Haddix. The extent of that concession is that she has made such comments on 2 occasions in the period involving Dr K’s interviews with her and the last appointment with Unifam.
However, the mere statement of a view by [X] is not determinative or dispositive of the proceedings and thus I turn to the evidence of Dr K dealing with [X]’s views and the parties generally. I do not do so to suggest that the evidence of Dr K carries greater weight than that of the parties or either of them. However, in light of the matters raised above (particularly regarding the chronology of the introduction of [X]’s suggested views and the issues and concerns raised with respect thereto by Mr Marrett) I am satisfied that it is, at the very least, instructive to do so.
The evidence of Dr K
Dr K has provided a lengthy and detailed Report.
Dr K is a child and family psychiatrist of some repute.
It is to be noted that the Affidavit of Mr Haddix sworn or affirmed 19 June 2013 commences with the statement:
I believe Dr K’s report is biased, deliberately selective in the information it presents, has omitted information relevant to the case and includes nonfactual information.
Notwithstanding the above, Mr Haddix has not led evidence to support the assertions (or identified the omitted information or that which is “non-factual”) and, importantly, declined to cross examine Dr K. Thus, to the extent that such assertions are raised I reject them.
Overall, in cross examination (significantly that by the Independent Children’s Lawyer) Dr K was unshaken in his views.
A number of matters were put to Dr K from the evidence of the parties and which were conceded by Dr K as impacting upon his views or conclusions.
The Affidavit evidence of the parties had been provided to Dr K and considered prior to his cross examination and thus specific elements of that evidence was referred to in cross examination by the Independent Children’s Lawyer.
Dr K’s evidence was typified by his reference to “coercive behaviours” by Mr Haddix and the typification of Mr Haddix’s “coercive interpersonal style”.
Dr K’s report is conveniently broken into a number of portions comprising:
a)Interview and description of Mr Marrett and his family of origin (paragraphs 14 – 43);
b)Interview and description of Mr Haddix and his family of origin (paragraphs 44 – 72);
c)Telephone conversation with Mr Haddix’s then treating psychiatrist Dr D (paragraphs 74 – 91);
d)Conversations with the principal of [B] Public School, Ms A, (paragraphs 92 – 100);
e)Telephone conversation with [X]’s classroom teacher, Ms S (paragraphs 101- 124);
f)Telephone conversation with Mr Marrett’s bereavement therapist (paragraphs 125 – 133);
g)Discussion with [X] (paragraphs 134 – 154);
h)Discussion of Mr Marrett’s relationship with [X] (paragraphs 155 – 182);
i)Discussion of Mr Haddix’s relationship with [X] (paragraphs 185 - 197);
j)Discussion of Mr Marrett’s mental state (paragraphs 201 - 214);
k)Discussion of Mr Haddix’s mental state (paragraphs 215 - 234);
l)Consideration of [X]’s mental state (paragraphs 233 – 239);
m)Family violence and its relevance and impact (paragraphs 240 – 246);
n)Risk of abuse (paragraphs 247 – 251);
o)Willingness of each Mr Marrett and Mr Haddix to support [X]’s relationships with other (paragraphs 253– 268);
p)The effect of change in present arrangements (paragraphs 269 – 272);
q)Discussion of the weight to be attached to [X]’s views (paragraphs 273 – 288).
Following the above discussion (to which I will return shortly) recommendations were made by Dr K as follows (at paragraphs 290 – 297):
That the stepfather have sole parental responsibility. That in exercising this responsibility he be required to consult and consider the views of the father, and to inform the father of his decisions.
That this parental responsibility include decisions about therapy, and about travel overseas, but not change of residence to overseas.
That each parent be responsible for the day-to-day care of the child including such matters as involvement in extracurricular activities whilst the child is in their care.
That the child live with the stepfather.
That the child have contact with the father, every second weekend, and for half of the school holidays.
That if the father is not living in the vicinity of the stepfather, arrangements might be made for the child to spend time with the father on relevant long weekends occurring during school terms.
That each party be restrained from making critical or derogatory remarks about the other in the presence or hearing of the child.
That the father be appropriately informed about educational and medical matters in the child’s life, for example receiving copies of school reports. That the father be free to attend special events at the children’s’ school or sports.
The orders proposed by the Independent Children’s Lawyer are substantially in accordance with Dr K’s recommendations subject to amendments arising from his cross examination and his evidence given therein.
Dr K’s discussion of Mr Marrett
At paragraph 18 of the report, the following description of Mr Marrett is offered:
[he]…presented as earnest and thoughtful. He was quite measured in his responses and approaches to the issues discussed, pausing to reflect, and considering all sides of an issue. He recounted past events in a way which suggested that he is an interested observer of humanity, and is sensitive to the emotional responses of others.
I concur with the observations of Mr Marrett by Dr K which are consistent with my own observations of Mr Marrett throughout the proceedings and particularly during his brief cross examination.
It is also made clear through the evidence, including that of Dr K, that Mr Marrett’s home presently comprises:
a)Himself;
b)[X];
c)[X]’s younger sibling, [Y], who is two years of age;
d)Mr Marrett’s parents, [names omitted] (each of whom have sworn Affidavits and have not been required for cross examination. It is thus evidence which I accept in its entirety).
It is also made clear that for significant periods in the past (for the period 2003 – 2008 and May 2012 – January 2013) [X]’s maternal aunt, Ms S, has lived within the household and that she continues to be a regular and significant visitor. She is also a deponent in Mr Marrett’s case, was not required for cross examination and thus I accept her evidence as truthful and accurate.
Dr K’s discussion of Mr Haddix
In the portion of the report dealing with and describing Mr Haddix, the following is opined (at paragraphs 53-57) :
The father presented neatly and formally dressed, in a suit, with a white business shirt, but no tie. He did not present as depressed or anxious. There was no evidence of a psychotic disorder.
The father used the language of thoughtfulness and reason, but without substance. For example, when speaking of the separation from his first wife, he paused as if pondering, and said, “We grew apart… we’d matured into different people”. When I then sought elaboration or example, he was not able to provide these. When I asked for any aspects of his childhood which might have had a negative impact on him, he said, “maybe, going to different schools all the time…”, but then was not able to elaborate in terms of vulnerabilities within himself, instead saying, “maybe why that’s why I’m good at talking to strangers”.
The father used the language of reasonableness, along with a very conciliatory and earnest tone of voice, which was in stark contrast to the tone of his documented communication with the mother, stepfather and in his court documents. He repeatedly told me that he was being guided only by the child’s needs, and in particular her wishes. He reminded me repeatedly, “and you will talk to her”, or asked, “and you have spoken with her about that?”, suggesting to me that he had some confidence regarding what she would say to me.
The father used generalised descriptions of support for his own position, which did not bear scrutiny. For example, he told me that, “At Church, and school, people are saying it’s odd… why does he want to have [the child] live with him?” When I challenged him about this… that I was surprised that most people would not understand that a stepfather who had shared 6 years of raising a 12 year old might wish to continue that role, the father shifted his focus to “people are saying… ‘what does the child want?... Does he know what the child wants?’”.
Another important example of the above is the father’s claim to me that “many people, including two child psychologists and teachers” had recommended to him that he should consider taking the child out of her current environment altogether, because her mother had been killed and she was part of the accident. I consider it unlikely that even one of these professionals, let alone all of them, gave this advice. I note that the principal and the father’s psychiatrist both had told me of giving the father advice to minimise change, at least in the short term.
It is clear from the reportage that Mr Haddix is presently residing with his parents in their home at Queensland (being Mr H and Ms H). Mr Haddix continues in a relationship with partner, Ms O, although she is presently, for employment reasons, living primarily in Sydney.
Dr K’s discussion with Dr D
Early in the proceedings and prior to relocating to Queensland Mr Haddix filed evidence by his then treating psychiatrist, Dr D. Dr D was not required for cross examination. Dr D was contacted by Dr K.
Importantly, from the report of the dialogue between the psychiatrists, it is clear that the assertion by Mr Haddix that he had discussed his intent to uplift [X] from her school and had received “advice” from Dr D supportive of this intent, is not an accurate description of that which occurred. Dr D’s version, which could best be described as cautioning against that action, is set out in paragraph 80 of Dr K’s Report.
Whilst that expressed by Dr D has not been tested I note, on the basis that he is a witness in Mr Haddix’s case and thus could have been called if Mr Haddix had he so desired, I accept the accuracy of that reported by Dr K (and as to which he has not been cross examined by Mr Haddix in any event).
Also of importance with respect to [X]’s views (and as is borne out from Dr D’s notes as tendered in Mr Marrett’s case) the following is reported at paragraph 82:
On 22 June the father commented that the child didn’t seem to be grieving. The father felt the child was ambivalent about coming to live with him. She was a fence sitter. She was telling the father one thing and the step-father another. Maybe she was lying…the mother was a liar.
To that end, Dr K’s evidence has been particularly sage in recommending to each of the parties that whatever orders are made and whether they are able to feign acceptance or support or otherwise that the stability and operation of those orders for [X] (so that she is able to have firm, clear and settled arrangements without further conflict, turmoil or discussion) should be paramount in their minds.
Practical difficulty and expense
I will deal with this as part of section 65DAA(5).
The capacity of each of the parents and other persons to provide for the needs of the child including emotional and intellectual needs
As would be apparent from the above discussion of the evidence, I am satisfied that Mr Marrett is better placed to meet and promote [X]’s emotional and developmental needs, now and for the foreseeable and short term future. That would certainly apply until [X]’s 16th birthday towards the end of the 2016 school year.
As regards whether a change in [X]’s arrangements might occur now (subject to being satisfied that this would be in her best interests and which I am not) or at a later time, Dr K opined that there is a significant developmental change for children and young persons between the ages of 13 and 16. It is on that basis, at least partly, that
Dr K has recommended that arrangements continue for [X], as they presently are, until she is 16. I accept that recommendation.
Again, the above is not intended to suggest that Mr Haddix is incapable of meeting [X]’s needs. However, I am simply satisfied that at this point in time, Mr Marrett is more insightful into [X]’s needs and, particularly, her developmental needs.
The focus by Mr Haddix upon his need and requirement for [X] to express a view and preference (for him) is a matter of concern in and of itself.
[X] is clearly a child of whom both parties agree maturity ,as regards decision making, is deficient. Accordingly and to the extent that a criticism is made of Mr Haddix, it is that his desire to so ardently and zealously pursue the issue has caused emotional turmoil for her, potentially caused hurt and upset to persons of importance to her (which I am satisfied she would be aware of and, in turn, hurt by herself) as well as having created an unwelcome and unnecessary distraction at a time when her stability of placement and concern should have been foremost and paramount.
I am also satisfied that Mr Haddix’s desire to pursue [X]’s placement with him was at least initially founded not upon any desire to advocate on behalf of his daughter’s views (which, to some extent I am satisfied, have been expressed after the event and to accord and correspond with that desired by Mr Haddix) but by a desire to pursue his perception of “parental rights” and, after Mr Marrett’s rejection of [X]’s transition to Mr Haddix’s care 4 May, 2012, a desire to win the contest between he and Mr Marrett..
Whilst the actions on 24 May 2012 are justified by Mr Haddix, at least in part by reference to achieving that which [X] is suggested to have expressed, I am satisfied that the actions on 24 May 2012 had their genesis in the initial communication by Mr Haddix to Mr Marrett on 4 May 2012 that [X] would inevitably transition as quickly as possible into his care and that of his partner and with it being made clear to
Mr Marrett that he had little if any say in that decision, he not being a “parent” and thus having no role in parental decision making.
The above is not intended to suggest that this decision is made on the basis of apportioning blame or seeking to punish a party for their actions in the past. However, the events surrounding [X]’s eventual removal from her school (and thus from Mr Marrett’s care and her residence with her sister) has some real resonance to the ultimate findings made by me (and to the opinions expressed by Dr K) in light of:
a)The focus by Mr Haddix upon “parental rights” (which clearly favoured him and had little if any relationship, at that time, to [X], her best interests or views);
b)The forceful expression to Mr Marrett of the need for [X]’s transition to Mr Haddix’s care. Mr Haddix has sought to suggest that the genesis of all conflict and mistrust between the parties arose from Mr Marrett’s resistance of that demand. I accept that is so but arising from Mr Haddix’s response to Mr Marrett’s opposition; and
c)The apparent desire to achieve, at all costs, the outcome which had been flagged as required 4 May 2012 and which has unremittingly been pursued and is suggested, on Mr Haddix’s evidence, to be continuously fought for.
Maturity, sex, lifestyle and background of the child
As above, I am not satisfied that [X] is of sufficient maturity, particularly as regards her personality type and style as described by
Dr K and having regard to the agreed position of the parties as to the immaturity of [X] in making decisions (at least in their early evidence) to have significant let alone dispositive weight attached to her views. That lack of maturity causes me some real concern as to the weight that should be attached to the views that are now suggested to be genuinely expressed by [X] (and which I accept are, in part but not wholly or completely, genuine).
I am also conscious of the cultural considerations which attach to [X] at this point in her life.
[X] is a child of Korean/New Zealand heritage. She is also now, through her relationship with Mr Marrett and his extended family (and including through her younger sister) engaged with an Indian culture and heritage.
Various portions of the evidence suggest that [X] has had significant engagement with each of these three cultures and including discussion in the evidence of [X], at the wedding of her mother and Mr Marrett, dressing initially in Indian traditional costume and then changing to Korean traditional costume.
The cultures from which [X] is derived and with which she is now engaged and to which she is exposed have rich benefit to her.
These issues also attach to the question of overseas travel as has been raised by Mr Marrett.
Mr Marrett has sought orders which would remove [X] from the Airport Watchlist and which would allow and permit either parent to travel with her subject to a number of conditions such as the provision of an itinerary with advance notice and the like. Those arrangements are consented to by Mr Haddix and I am satisfied can and should be ordered.
In this regard, and whilst I am conscious that the consent of the parties alone is not sufficient, I am satisfied that to allow and permit such travel, subject to the conditions which the parties have identified as appropriate, would be in the child’s best interests and thus consistent with the rationale of the Full Court in Valentine & Lacerra And Anor.
If the child is from an Aboriginal or Torres Strait Islander background
From the above clearly [X] is not.
The attitude to the child and the responsibilities of parenthood demonstrated by each of the parents
By reference to the above evidence and findings, I am satisfied that this would favour, for the reasons set out above, Mr Marrett’s proposal and those of the Independent Children’s Lawyer, Mr Marrett’s attitude being consistent and superior.
Family violence involving the child
Whilst I have made a finding that family violence has occurred in the past I am not satisfied that any weight should be attached to the factor in the determination I make at this time.
The evidence would suggest that [X] has been exposed to an incident of family violence. That is not to suggest that a singular exposure to family violence is not damaging or that it is any way appropriate or excusable. However, I am satisfied, as indicated above, that [X] will not be exposed to family violence in the future.
Family violence orders that apply or have applied
Family violence orders have existed in the past between [X]’s mother and Mr Haddix and between Mr Haddix and his partner Ms O.
None presently exist.
Again, I am satisfied there is no realistic risk that [X] will be exposed to family violence in the future.
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
This factor would potentially favour the proposals of Mr Haddix.
Mr Haddix has indicated that he will continue to fight so long as he perceives that [X] has a desire to live with him.
As indicated above I am concerned that there is a degree of circularity in the logic expressed by Mr Haddix and such that he is unlikely to ever believe that [X] does not have a wish to live with him or to be dissuaded from the belief that it is so.
Accordingly, the most probable basis for the occurrence of proceedings in the future would be if orders were made as proposed by Mr Marrett and/or the Independent Children’s Lawyer and, thus, Mr Haddix would be put in a position whereby, if true to his word, he would continue to fight (and thus potentially retain the child or bring fresh applications).
In light of the above, I am satisfied that the notation proposed by the Independent Children’s Lawyer (that [X] has expressed a view that she would seek to live with Mr Haddix and this would not represent, by and of itself, a substantial and significant change in circumstances such as to overcome a Rice & Asplund [1979] FLC 90-725 threshold) is appropriate.
I am conscious that a notation does not have the status of an order.
I am not satisfied that any order could be made by me which would have the effect of restraining or precluding any further action. Indeed, I am satisfied that this would, in all probability, be contrary to Full Court authority (see for example Bennett [2001] FamCA 462).
In the event that proceedings are to be commenced by the parties or either of them on any basis (whether by way of enforcement or variation) that will be a matter for them and their conscience. One would hope, as Dr K has opined, that each of the parties, no matter what orders are in place and their degree of satisfaction with them (or their perception as to [X]’s satisfaction with them) would do all within their power (as Stevenson & Hughes requires) to allow and permit the orders to operate to [X]’s benefit and without further conflict.
In any event I am not satisfied that it would be an appropriate exercise of jurisdiction by the Court to bow to or react to an indication by a party that they will continue to litigate if orders are to their pleasing. It is a matter which can and should be addressed on the merits of any application in the future.
Other facts and circumstances
I incorporate herein s.65DAA(5). With respect thereto I consider the following:
How far apart the parties live
These parties presently live in Brisbane and Sydney respectively.
Neither party is particularly wealthy.
Mr Haddix has indicated that if he were required to travel to Sydney to spend time or to pay for Mr Marrett to travel to Brisbane (if [X] were living with him) that he could afford this, at best, once or twice per year.
I have no reason, on the evidence, to suspect that Mr Marrett’s position would be any greater particularly after these proceedings are concluded
Accordingly, orders as proposed by each of the parties and the Independent Children’s Lawyer (there being no significant variance with respect to the overall structure of time arrangements) are, I am satisfied, entirely appropriate and being largely focused upon school holidays as available periods for [X] to spend time with the other party.
Variance arises in the various proposals as to the block period to occur during short school holidays when [X] would travel to Mr Haddix (or if Mr Haddix’s proposals found favour, [X] would travel to Mr Marrett). Mr Haddix and the Independent Children’s Lawyer propose that [X] would attend for one half of the middle school holiday (June/July) and all of the April and September school holidays.
Mr Marrett resists this on the basis that he would seek that [X] have some time during those school holiday periods with both he and [X]’s sister, [Y]. There is some force to this.
I am satisfied that some greater portion of the first and third school term holidays should occur, but so as excise the first and last weekends thereof and so that there is, in effect, a twelve day period from the first Monday of the holidays until the last Friday, and so that the first and last weekends are spent by [X] with Mr Marrett and [Y].
[X] is clearly competent with the use of telecommunications and computers and thus will clearly be able to communicate by telephone, email, skype and other electronic means. One dare say that a child at the age of [X] would be far more familiar with and confident in her use (and appropriate use) of Facebook and other social media than either Mr Haddix or Mr Marrett.
I had raised with the parties and the Independent Children’s Lawyer the advisability of making orders with respect to such communication. I am urged, and it would appear with the agreement of both parties, to make no specific orders as to times or frequency of such communication but simply facilitative orders which would ensure each party allows access by [X] to the necessary hardware (and credit) to make communication in those ways and each of Mr Marrett and
Mr Haddix to have her contact details such as email, Skype address and telephone number.
Current and future capacity to implement an arrangement
I am satisfied, on the basis that each of Mr Haddix and Mr Marrett propose like arrangements, that they are able to implement arrangement as they each propose (and as the Independent Children’s Lawyer proposes).
In the event that the parties were both resident within the Sydney metropolitan area then far more frequent time would be possible. Accordingly, in those circumstances, I propose to make orders for alternate weekend time to occur as was previously occurring, and being each alternate weekend from Thursday to Monday during school terms as well as school holiday periods.
Current and future capacity to communicate with each other and resolve difficulties
This is presently limited. This is so notwithstanding that the parties have engaged with family counselling services. However, family counselling services can only achieve that which the parties’ desire and it would appear, particularly in light of the relatively recent disasters which have befallen these families, that it may simply be too soon. It may be that other forces such as the parties’ personalities are at play. In any event all that can be done at this point is to acknowledge that communication is poor.
Poor communication need not necessarily be entirely ineffective or avoided.
A significant issue that arises is whether an order is to be made for equal shared parental responsibility with terms and conditions attached (such as a “circuit breaker” clause to ensure that decisions are made if the parties have consulted but cannot agree) or whether an order for sole parental responsibility is to be made.
I am conscious that it is a serious and significant step that is represented by depriving a party of parental responsibility. The above comments are all the more focused in the context of these proceedings.
At present, and whilst there is no right of survivorship in children or parental responsibility, the only party who would, under the legislation, be in a position to assert an entitlement to parental responsibility would be Mr Haddix.
In light of the difficulties and aggravations between Mr Haddix and
Mr Marrett, I am conscious that I must balance the reaction to an order for sole parental responsibility that would follow (based upon the perception created thereby if nothing else) against the reality that an order for equal shared parental responsibility would, pursuant to s.65DAC, require that Mr Haddix and Mr Marrett endeavour to make joint decisions and to consult with each other in relation to the decision (prior to it being made) and make a genuine effort to come to a joint decision (see ss.65DAC(2) and (3)).
On balance, I am satisfied that it would be preferable for an order for equal shared parental responsibility to be made as between Mr Haddix and Mr Marrett and subject to terms and conditions to the effect that:
a)Consultation occur prior to any decision being made; and
b)If agreement cannot be arrived at and after consultation has occurred that the parent with whom [X] primarily resides would then be vested with authority to make the decision.
I am conscious that the above is open to the potential for further dispute and suggestion of token compliance. However, taking each party and their evidence on face value I have some confidence that such a position would not be arrived at.
The impact of the arrangement on the child
It is submitted by Mr Haddix that there will a negative and detrimental impact upon [X] of frustrating her genuine desire to immediately commence living with him. Indeed the evidence of Mr Haddix (consistent if not identical with that of his parents and Ms O) is that [X] has already expressed dissatisfaction with the Court process, the time taken and the decisions made with respect to her welfare to date.
To the extent that such matters are raised in Mr Haddix’s case I am not satisfied that they are necessarily matters genuinely raised by [X] or an agenda driven by her.
I am conscious that Mr Haddix is clearly frustrated by the time delay in the proceedings and the outcomes that have been achieved through judicial determination to date. However, I am conscious that this frustration has been made known to and may have been repeated if not adopted by [X].
The above, however, must be balanced against the clear evidence, including the uncontroverted and uncontested evidence of Dr K, that the developmental needs of this child would be best served, irrespective of any view expressed by her and the level to which the view is genuinely held and expressed, by remaining in the primary care of Mr Marrett. Accordingly I am satisfied that such orders are appropriate.
As I would hope is already apparent from the above I am in position to make orders with respect to overseas travel and removal from the PACE list with the consent of both Mr Haddix and Mr Marrett.
As regards parental responsibility I favour the position addressed by the Independent Children’s Lawyer in submissions (although not their primary position) that equal shared parental responsibility might apply but with terms and conditions.
As regards school holiday time I am satisfied that some portion of each holiday should be spent by [X] in each household and that this would be a benefit to her without corresponding or outweighing detriment through a reduction of time with the other in the other household. Thus I am satisfied that the majority of orders as proposed by the Independent Children’s Lawyer and subject to the above additions and/or modifications are appropriate.
With respect to travel costs each party proposes that they would meet one half each of the cost. This is not the position advanced at the time of interviews with Dr K but by the close of evidence and submissions each party adopted an identical position that they would each meet fares and subject to an issue raised by Counsel for Mr Marrett that airfares, if met on a return basis, would in all probability be cheaper and thus this would be preferable to each party meeting one half of the cost.
I propose accordingly to make orders which require that Mr Haddix arrange and book return airfares and provide to Mr Marrett not less than 28 days’ notice of the itinerary. Further provision will be made for Mr Marrett to reimburse Mr Haddix, not less than 7 days prior to the commencement of each period, one half of the total fare incurred.
Clearly, [X] is a child of an age to travel on an unaccompanied basis between Sydney and Brisbane Airports without difficulty and clearly on the evidence of the parties she has done so since Mr Haddix’s relocation to Queensland. Accordingly I propose to continue an arrangement of that nature to facilitate her travel.
In then returning to the objects and principles in reviewing the orders I propose to make I am satisfied that:
a)The orders thus proposed and as outlined above will best benefit [X] in having Mr Marrett and Mr Haddix each playing a continuing role and having a meaningful involvement in her life. Further, the orders will, I am satisfied, ensure that [X] receives adequate and proper parenting to achieve her full potential (which she will receive equally from each of Mr Marrett and Mr Haddix) and that each will then best fulfil their duties and responsibilities.
b)I am further satisfied that the orders proposed will have the effect of fulfilling [X]’s right to be cared for by each of Mr Marrett and Mr Haddix (and through them a myriad of other adults who love [X] and whom [X] loves in return), will allow [X] to spend time and communicate on a regular basis with each of Mr Haddix and Mr Marrett (and, again, a myriad of extended family members) and, most appropriately, will, to the greatest extent possible, allow [X] to enjoy the various cultures from she is derived and of which she is now part including the right to enjoy those cultures with others who share them. That right will also be further enhanced through orders to facilitate [X]’s overseas travel in the future as each party proposes and consents to.
Costs of the Part 15 Expert
An application is made by Mr Marrett with respect to equal contribution by each of Mr Marrett and Mr Haddix towards the cost of Dr K’s attendance for cross examination (and preparation therefore). Those costs, as advised by the Independent Children’s Lawyer, amount to $1,900 including GST.
Mr Marrett and Mr Haddix each indicate their consent to such an order although Mr Haddix is clear that he requires some time to attend to payment of any amount in light of his present financial circumstances (full details of which with regards to both Mr Haddix or Mr Marrett are not known to the Court).
Mr Marrett also seeks an order that he be reimbursed by Mr Haddix for one half of the amount expended by him in commissioning and paying for the Report of Dr K. That amounted to $9,900. That amount has already been paid by Mr Marrett and he seeks an order that he be reimbursed by Mr Haddix the sum of $4,950.
This is again, consented to by Mr Haddix but on the condition that he requires some significant time to repay it and ideally 12 months.
I am not satisfied that a period of 12 months can or should be allowed. Mr Marrett has attended to payment of this amount some 12 months ago and thus would be entitled to somewhat more expeditious reimbursement, I accordingly propose to allow:
a)A period of 28 days for each party to pay the amount sought by the Independent Children’s Lawyer with respect to Dr K’s attendance; and
b)A period of six (6) months with respect to the reimbursement amount.
Accordingly I make orders as follows (see Orders).
I certify that the preceding three hundred and seventy-nine (379) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 1 November 2013
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Appeal
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Procedural Fairness
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