Hafey & Hafey
[2023] FedCFamC2F 192
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hafey & Hafey [2023] FedCFamC2F 192
File number(s): MLC 9637 of 2020 Judgment of: JUDGE HARLAND Date of judgment: 24 February 2023 Catchwords: FAMILY LAW – parenting – final trial – family report -Rice & Asplund – whether the current arrangements should remain in place or there should be a week about arrangement – whether or not there has been a significant change of circumstances since the final parenting orders were made by consent. Legislation: The Family Law Act 1975 (Cth) Cases cited: Rice & Asplund [1978] FamCA 84
SPS and PLS (2008) FLC 93-363
Division: Division 2 Family Law Number of paragraphs: 92 Date of last submission/s: 31 January 2023 Date of hearing: 24 & 25 November 2022 Place: Melbourne Counsel for the Applicant: Mr Puckey KC Solicitor for the Applicant: Kenna Teasdale Lawyers Counsel for the Respondent: Ms Dellidis Solicitor for the Respondent: Conlan Cummings Lawyers ORDERS
MLC 9637 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HAFEY
Applicant
AND: MS HAFEY
Respondent
order made by:
JUDGE HARLAND
DATE OF ORDER:
24 February 2023
THE COURT ORDERS THAT:
1.The Amended Application for Final Orders filed on 21 October 2022 be dismissed.
2.The Final Orders made on 13 August 2021 remain in full force and affect.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hafey & Hafey has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND
X (X) was born in 2010 and is 12 years old, and is entering into high school this year. His parents were married for 18 years, marrying in 2002 and separated on 30 March 2020. The separation was sudden and traumatic. The paternal grandfather emailed the mother revealing that the father had been having an affair in Country B, where he travelled to regularly for business, with a woman named Ms C. They have a child together D who is now aged 5. X knows he has a half-sibling in Country B but has never met him. The father and Ms C also separated in 2020.
The parties resolved the final property and parenting matters by consent after attending mediation on 12 August 2021. In summary the parenting orders provide for:
(a)the parties to exercise equal shared parental responsibility;
(b)X to live with the mother;
(c)during school term X spends time with his father from the conclusion of school Thursday until the commencement of school Monday, and the second week from the conclusion of school Thursday until the commencement of school Friday; and
(d)the parents share school holidays equally.
Six months after final orders were made, the father filed an Application for Final Orders on 28 February 2022 seeking for X to attend E School from the commencement of 2023 and to vary Orders 3 and 4 of the August 2021 orders to allow for X to live on a week about basis between the parties during the school term.
The applicant father says that the circumstances of the whole family have changed since the August 2021 consent orders. They are all relocating to Melbourne at the beginning of 2023 and just days before the trial the father found rental accommodation close to X’s new school.
The respondent mother says the principles in Rice & Asplund [1978] FamCA 84 apply. She says the father’s application lacks bona fides and is opportunistic. She says there has been no change of circumstances since the final orders were made in August 2021.
Shortly before the commencement of the final hearing, the parties agreed for X to begin high school at F School in 2023 leaving the sole issue in dispute being whether or not the final parenting orders should remain in place or there should be a week about equal time arrangement.
Both parties were represented by skilled advocates. Both had arguments with merit. Both counsel provided detailed written submissions. I have considered those submissions and the evidence. For the reasons I shall explain I have determined that whilst the “rule” in Rice and Asplund does not apply in the circumstances of this case, I am satisfied that the father’s proposal is not in X’s best interests.
FINAL CONSENT ORDERS AND RICE & ASPLUND ARGUMENTS
The mother’s trial affidavit filed 28 October 2022 asserts that the final parenting orders made by consent on 13 August 2021 were tailored to her planned move to Melbourne when X finished primary school which coincided with the sale of the Town G property in or around September 2022. The father denies the mother’s assertions in his trial affidavit filed 7 November 2022, and that the orders were tailored to provide time for the parties to prepare for the sale of the Town G property and to complete significant renovation works. The father claims this was to ensure that X and the mother would not need to vacate the family home before X completed Grade 6 in order to cause as little disruption to X as possible.
The mother affirmed under cross-examination that the father did not object when she raised her desire to move to Melbourne where she has family despite his wishes for X to attend E School and for him to remain in City H. The father accepted that the Town G property was valued in April 2021, and that whilst the mother had been keen to keep the Town G property, she was unable to do so, given the valuation. King’s Counsel for the father did not press further as to whether or not the final orders of 13 August 2021 were entered into in anticipation of the mother’s move to Melbourne. The father denied agreeing to the orders in the knowledge that the mother was moving to Melbourne or whether it was apparent that the mother could not afford to stay in Town G. Certainly, the orders contemplated that if the parties lived in Town G there would be sufficient proximity between them for a 9/5 fortnightly arrangement to be practicable.
The mother argues that the principles of Rice & Asplund should apply and there should be no change to the final parenting orders. She says the father relies on the following factors in support of his argument that there has been a significant change of circumstances: school refusal, homework issues and academic performance, changeover problems, and the changes to X’s living and school arrangements in 2023.
She argues that the father was unable to establish any of these on the evidence. She further argues that considering the evidence and the s60CC factors, it is not in X’s best interests to vary the parenting arrangement.
King’s Counsel for the father contends that none of the legal principles found in either Rice & Asplund or SPS and PLS (2008) FLC 93-363 are engaged by the facts of this case where:
(1)the parenting Orders in place in relation to X were an agreement reached at mediation. Parenting issues were not raised in the previous financial proceeding until a fortnight before the mediation;
(2)X was never involved in the brief parenting proceeding on foot for a period of 2 weeks prior to the mediation;
(3)there was no Family Report or other enquiry into the best interests of X in the course of the previous proceeding; and
(4)X has now participated in a Family Report and the Trial has been run and concluded, eliminating the risk of exposure to ongoing litigation.
He further argued that very significant changes in X’s circumstances were anticipated by the father, which is raised in his application that clearly requires consideration by the Court of what future living arrangements are in X’s best interests. X and his parents are all moving from Town G to Melbourne. X is transitioning from primary to secondary school (and at a different school to that for which the parents had previously planned). Indeed, it is difficult to identify much at all about X’s 2023 circumstances that will be the same for him as in 2021.
The “rule” in Rice & Asplund is well-known. In that case, the Full Court of the Family Court of Australia had to consider what principles should apply when a court is faced with an application to change an earlier parenting order. Evatt CJ said the following:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order into the reasons for material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation… Change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that… there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
The trial Judge has discretion as to whether to consider the Rice & Asplund principle as a preliminary issue or after a full contested hearing. It is important to bear in mind that the rule in Rice & Asplund is merely a manifestation of the best interests’ principles.
Both sets of written submissions accurately refer to case law on this topic. It is not necessary to set those out any further.
The parties entered into the final consent orders after a mediation. Parenting issues had been joined to the financial proceedings two weeks before the mediation. As it resolved so early X was not involved in a family report. The orders were made by consent. X has now participated in a family report and the parties have been cross-examined. It is also clear that the past couple of years have involved much emotional turbulence as well as changes to location and school this year.
Given these circumstances and the fact that I have had the benefit of hearing all of the evidence at trial, it would not be just to simply discuss the father’s application on the basis of Rice and Asplund. I will determine the father’s application on its merits.
CHOICE OF SCHOOL FOR X
Although the choice of X’s schooling was resolved prior to the trial, it is still relevant to discuss it as it demonstrates the parents’ insights into X’s needs.
It was the mother’s intention for X to attend F School as it is close to where the mother will reside in Melbourne, while the father wishes for X to attend E School. During the course of the trial, the father revealed that he had recently signed a lease for a property opposite F School.
The mother sought for X to attend a school local to Melbourne in anticipation of her relocation to Melbourne post separation as she has no family or connections in City H.
The father explained during the family report that the pastoral care and educational opportunities offered at E School represent the “best fit” for X. The father was of the view that X would benefit from the structure, pastoral care, and his familial connections with E School. He proposed that even if the mother were to eventually reside in Melbourne, X should attend E School and live half of the time with him.
Dr J recommended against E School because of the stress of the long daily commutes for X when living with the mother in addition to further commutes for week sports and not living near peers. The father recognised that it would not be feasible for X to attend E School whilst living with the mother nine nights a fortnight in Melbourne and proposed a week about arrangement with him living in City H. The father was aware that the mother did not have any connection to City H. She has extensive family supports in Melbourne, including her sister, mother and cousins. The father attended E School but otherwise does not have connections to City H.
Whilst the parties resolved the school issue, the father’s evidence about his reasoning for proposing E School and that X lives with him half the time shows a lack of insight. The mother pointed out the logistical issues and what it would mean for X if he went to E School in a letter dated 14 October 2021 from her lawyers to the father’s lawyers and is annexed to her trial affidavit. My impression is that the father had given little thought to what his proposal would practically mean for X. It reflects the fact that the father is less emotionally attuned to X’s needs than the mother.
THE FATHER’S COMPLIANTS ABOUT SCHOOL REFUSAL AND PERFORMANCE
The father’s complaints about X refusing to go to school and his complaints about the mother’s handling of it are not justified. It is significant that the father raised his concern about X’s school refusal with Dr J and brought documents to show him but did not raise this as an issue with the mother before the interview. This is not the only example of the father doing this. It undermines the genuineness of the level of concern he claims to have. My impression is that the father has a tendency to deflect responsibility from himself and has a certain tone deafness. This was the case during cross-examination when he was asked about the trauma and distress suffered by the mother and X as a result of the separation. The father was keen to say that he also suffered, which I accept would have been a shock for him as well and would have been distressing, but he is not in the same position.
The father was unable to produce text messages he claimed existed showing him raising concerns with the mother about X’s school refusals.
Exhibit 1 was tendered which was a summary titled ‘School Refusal’ compiled by the father, outlining the occasions when X did not attend school. With respect to the school refusal, the father has greatly exaggerated this issue. I do not accept the submissions by the father’s King’s Counsel that he was simply misguided and made genuine mistakes when compiling the document. By labelling the document school refusal even though it was a document he prepared, it was mostly decisions by the parents pre separation to take X on holidays at various times during school terms creating a misleading impression.
I do not accept that there has been a significant issue of X refusing to go to school. The father agreed that the immediate period after separation also coincided with the outbreak of the Covid-19 pandemic and that X was anxious and had panic attacks. He was also having difficulty dealing with his parent’s separation which came without any warning. These reactions of X’s are completely understandable and should not be pathologised.
It should not be underestimated what X was going through. It would have been a very upsetting and unsettling experience of his parents separating, his father having another child that he had kept secret, and at the same time the uncertainty and fear that many children and adults felt with respect to the pandemic given the multiple lockdowns and border closures.
Pre-separation the parents chose to take X on various holidays during school. Periods post separation coincided with the pandemic and the trauma around the separation.
The father conceded that when he was referring to school refusal, the only instance that X refused to go to school was one day in February 2022 for the school swim trials. X had also refused to go to the school’s swim trials the year before. The mother says that X was anxious about the school swim trials and refused to go because the father put enormous pressure on him about his performance. The father conceded that he told X that he would not get into the international sports event if he did not practice his swimming and that X was in tears. The mother says that X is anxious about meeting his father’s expectations and that from X’s perspective his father gets too competitive. The father acknowledged that X has a tendency to become anxious, which is also something that the mother experiences.
It was clear when the father was challenged in cross-examination that instances of him referring to school refusal in 2022 apart from the swim trials were not school refusal at all, but were occasions when X was ill and the mother had informed him of this. Similarly, in one instance when the mother told him he was unwell, the father cancelled X’s dental appointment. It is a mischaracterisation to classify these instances as school refusals. The mother cross-referenced the various emails and messages with respect to Exhibit 1, as she did not see this document until the first day of the trial. The father had included as an example of school refusal in August 2022 when X had to isolate as a result of exposure to Covid-19. The father tested positive, then X, and then the mother.
The father went further in his inaccurate summary and refers to 3 and 4 November 2022 being school refusals when in fact he conceded that X had hurt himself and was taken to Town G hospital, and was then taken the following day to K Hospital in City H. When the mother’s counsel put to him that this was a misrepresentation, it is difficult to accept the father’s assertion that he compiled it to the best of his ability. At best, the father was careless in compiling this information and at worst he was deliberately misleading.
The father was unable to explain why he went to such effort to put together this summary document and to provide printouts to Dr J of X’s school attendance, yet did not think it was something that he should raise with the mother. Rather, the mother was taken by surprise at the Family Report interviews with Dr J and at the trial with respect to this summary document. It also became apparent during the father’s cross-examination that although he says he became concerned about X’s performance at school after attending parent teacher interviews in June 2022, he did not raise this with the mother at any stage before the trial. It is quite telling as at the same time the father is keen to have an equal time arrangement for X and refers to himself as being collaborative.
The father also complained that X was not doing all of his homework but was not able to point to an instance of this, and was unable to point to a text were he raised this issue with the mother. X’s school reports do not mention any problem with him not completing his homework.
The father was cross-examined about X’s school reports, which again did not support his contention that his school performance is of concern in any area. X is performing within the expected level or above average. The father was not able to find anywhere where X was performing below average. The father is also somewhat obtuse in failing to appreciate that his implied criticism is of the mother’s parenting with respect to X’s schooling. There is no other way for the mother to take it, and it would have been particularly galling for her as her father was an educator and her mother was also an educator for 40 years and such values education.
It is clear from the evidence that there is no ongoing issue with respect to X refusing to go to school and that the issue as presented by the father was inaccurate and exaggerated. Difficulties with attending school in the aftermath of the shock of his parents’ separation and the circumstances of it and the onset of the pandemic are entirely understandable. The evidence does not establish any ongoing issue with X’s academic performance.
FATHER’S COMPLAINTS ABOUT CHANGEOVERS
The father’s complaints about the changeovers and his claims that X would regularly complain about being embarrassed also seems exaggerated, and again clearly was not a matter of sufficient seriousness to raise with the mother. The mother does not object to the father having a single block of 5 nights which would reduce the number of handovers.
The father was also unable to produce text messages where he ever said to the mother that the changeover arrangements needed to be changed because they were not working.
The father was clear that if the Court finds that keeping the current number of nights is in X’s best interests, he opposed having a five night block with X as it would be too long a gap between seeing him as there was a gap of 7 nights meaning they would have a lot to catch up on. When Dr J was asked about this he said that many parents raise that for good reasons.
The father also readily conceded that the mother has never obstructed the father from spending additional time with X, and that X regularly contacts his father on an ad hoc basis with respect to his sporting and other activities. There is no reason to think that this would not continue.
CHILD SUPPORT PAYMENT
The father was entitled to seek to correct Services Australia’s error with respect to the payments of child support. This had the effect of reducing his child support obligation from eight dollars a day to six dollars a day. The binding child support agreement that the parties entered into at the time they settled and finalised the matter in August 2021 was for the father to pay for X’s private school fees and other expenses as it was anticipated that X would attend a private secondary school. The issue is not about the father exercising his entitlements to correct the record, but his inability to see things from other people’s perspectives. He acknowledged that he inherited over $12 million of assets and property from his stepfather. It is in that context when the amount that the daily rate that he was paying for was modest and clearly was not a significant burden to him, yet he put in the objection requiring the mother to respond and for Services Australia to deal with that and issue a judgement. The reality of it is that the sum he had initially been assessed to pay on a daily rate, acknowledging that this is the periodic rate only and not all the other expenses he covers for X amounted to $2,920 a year was reduced on review to $2,190 year.
I do not know what was known about the father’s prospective inheritance at the time of the consent orders being made. Certainly, there is no s79A application on foot. It is a matter of putting it in context, particularly when, as against this, the mother will be looking for part-time work after being a stay at home parent for years. It is another example of the father’s rigidity and insensitivity. The other aspect is as the mother’s Counsel pointed out, is that the father is also prepared to spend over $100,000 in litigation at the same time. Another thing that would be galling for the mother is the money spent in litigation that reduces her property settlement in circumstances where she is aware of the father’s inheritance, which I accept he had not received at the time of the August 2021 consent orders. The father was unable to see how this does not sit well with him talking about parents doing their best to be collaborative and cooperative.
MS C’S CONTACT VIA SOCIAL MEDIA
Ms C contacted X via Instagram on 3 November and on 17 November 2022. The father was cross-examined about these messages.
The mother details what happened in her affidavit. Ms C contacted X though Instagram saying ‘hi X’. X exchanged several texts about this with his mother where the mother was sensitive and responsive. X did not mention this message to his father even though he was in his father’s care at the time. The mother messaged the father a few days later asking him to deal with Ms C. The father says he contacted Ms C. He did not let the mother know he had and when asked why he had not provided an update he said he had no reason to let the mother know. This reflects a disconnect or insensitivity of the father’s part. His approach to this issue seems somewhat passive and avoidant.
The father acknowledged the mother’s concerns that the father has difficulty facing the reality and consequences of his relationship with Ms C, where the father discovered that his father had another child from an extra-marital affair when he was 10 years old. It was notable that when the mothers Counsel was putting to him the distress and upheaval the revelation of the affair was he was keen to say that it was terrible for all of them. He did this more than once. I accept that that the separation was a shock for all of them and that the following months were difficult for all of them. As I have previously stated, what the father fails to appreciate is that for the mother and X there was additional trauma due to his secrecy and betrayal.
In his affidavit in reply, the father criticises the mother for not telling him as soon as Ms C contacted X. He denies being insensitive and talks about parenting books he has read to assist him with X and is seeing a psychologist. What is clear from both his written and oral evidence is that the father lacks emotional intelligence, and seeks to deflect blame and is somewhat minimising and avoidant of this difficult issue.
The father said he spoke to X after he found out about the Ms C’s first contact and said X told him that he was not upset and that he did not care. The father said he talks to X about it a bit at a time as he does not want to pressure him and has apologised. It could be that X said this to his father because that was how he felt at the time. However, particularly considering the mother’s and Dr J evidence, it is more likely that X is not as comfortable talking to his father about this as he is his mother.
Ms C contacted X a second time on Sunday 20 November 2022 on Instagram sending photographs of the father and D together. The mother contacted the father the following morning and told him that X had a sleepless night and had an upset stomach and had not gone to school. The father confirmed that he classed this incident as school refusal and when asked to explain why, he said that because he had spoken to X that afternoon to discuss it and X said he was fine and feeling okay and so the father thought he could have gone to school. This is another example of the father’s lack of attunement and insight. It demonstrates X downplaying his emotions, in particular, how upset he is about this issue to his father and feeling comfortable in talking to his mother. X was comfortable to talk to his mother about this and his mother responded to him with sensitivity. The mother gave oral evidence in chief with respect to X’s reaction when he received the photos where X was distressed and that he did not want to talk to his father about it.
The father agreed that X did not want to tell him about the communication from Ms C and further agreed that the mother had requested that he have a face-to-face discussion with X about it and not by phone. Despite this, he spoke to X over the phone, noting that the mother declined his offer to drive to Town G to talk with him. Again, the father lacks sensitivity and insight.
The father does not have social media. In each instance, the mother has forwarded him the contact Ms C has made with X. Regarding what the father has done to limit these interactions, the father said:
[X] has an unlocked Instagram account that I’m not comfortable with. Anyone can access that. Indeed, he has been cyber bullied as well with that account. I can’t stop, as much as I’ve tried, [Ms C] [sic] from creating new accounts and, therefore, continuing. I do know that [X] has blocked those accounts when they arrive. I’ve tried.
The father then said that after speaking with X, he acknowledged that X was upset and the topic of his extramarital relationship will be an ongoing discussion as he grows older.
When the mother was cross-examined about this, she said she talked to X about his Instagram account and switching his account to private but that X resisted this saying that it is the way he connects with other kids interested in skating. She accepted this as valid and also said that requiring him to change is victim-blaming.
The mother has a better understanding of X’s Instagram account and how he uses it. It is clear that the father does not use social media, and has limited understanding of how it works.
Social media in its various forms is something that parents have to grapple with that their own parents did not. Simply banning older children from using this technology is not effective. They are far more likely to find secret ways of using it as not doing so is a way a teenager will stand out from their peers in a way they do not want. It is much more effective for parents to feign an interest in that technology so that they can talk to their child about what interests them. This way, they are also able to help their child engage in protective behaviour online. The mother demonstrated that she has done this and X talks to her about it.[1]
[1] The eSafety Commissioner website: has a range of resources for parents to help them keep children safe online.
The difficulty with the father’s statements is that he has not fully embraced and acknowledged his actions, rather deflecting some of the blame onto X for having an unlocked Instagram account which then allowed for the unwanted communication, and that he cannot stop Ms C from contacting X.
It is not surprising that the mother does not accept that the father has contacted Ms C as he has not given any information about that. If he has written to her it is a simple thing for him to provide that to the mother.
Counsel for the mother states that the relationship remains an unsatisfactorily resolved issue, given the spectre of X continuing to receive unsolicited, intrusive contact from Ms C, with the consequent disruption to his emotional stability. The father’s written submissions glossed over this.
Dr J warned that there may be issues in the future when X comes into adolescence with respect to his father having another family. He referred to X currently being psychologically avoidant of that and the possibility that anger, resentment and a sense of betrayal may fester as he gets older and the father will need to tread carefully to address this. He acknowledged that this is not inevitable but formed the view that X has not fully processed the situation and the father will need to deal with this with X sensitively and carefully. This is the concern that the mother has.
DR J’S EVIDENCE
When the parties saw Dr J for his report dated 24 June 2022, X’s schooling was still in dispute. Dr J observed that there was little communication and co-parenting between the parties.
The father emphasised that he worked from home and so that they always had a shared care arrangement. It is not an accurate reflection of the situation, given he is overseas for his business and other travels. The father also presented a self-serving and misleading account to Dr J of X’s school performance and what the father referred to as X’s school refusal. The father also complained to Dr J about the mother’s alcohol use and X’s diet in the mother’s home. He also criticised the mother’s approach to teaching X about the value of money.
There was no substance to either of these complaints with respect to X’s diet and the mother’s alcohol use which was not pursued in cross-examination of the mother.
Dr J thought the criticisms the father made of the mother with respect to her drinking and X’s diet were ambit ones and he thought those criticisms were nullified.
When the mother spoke in support of her proposal for the arrangements to stay the same, she referred to her concerns about the father’s emotional responsiveness to X’s needs particularly with respect to sensitive issues such as his half-sibling. This is in contrast to the father’s complaints where there is substance to the mother’s concerns.
The mother spoke of the father’s betrayal and how shocked she was. She said it was more than finding out about an affair as he had a secret child. The mother says that since separation X has always spent regular time with his father. She referred to the fun father and X going to Melbourne most weekends. Her only concern was with respect to the father’s ability to manage the fallout from his relationship with Ms C.
X expressed his sadness at his parents break up and saying that it was because of his father’s second life. He tries not to think about it as there is so much else going on. He was not curious about his half-sibling D or D’s mother. He said he was uncomfortable when Ms C contacted him via Instagram. He blocked her and deleted her message.
X was aware that his father is keen to try a week about arrangement whereas his mother has not spoken about it. He spoke about the current arrangements working okay, but referred to changeovers with his bags. He was enthusiastic about the move to Melbourne and expressed a preference for the arrangements to remain as they are currently.
Dr J referred to the co-parenting relationship as being “far from ideal” and spoke of the circumstances of the breakdown of the marriage, leaving both parents with “deeper psychological wounds and ongoing distrust". Despite this, the parents have both recognised the importance of X maintaining his relationship with both parents and X did not report either parent disparaging or being overly critical of the other parent. Significantly, Dr J observed that given the fact that the father:
“[The father] effectively compromised the relationship by starting another family in [Country B], it is remarkable that there has been any level of functionality between himself and [the mother], which is a credit to her maturity and focus on what is best for [X].”
I agree with the statement provided by Dr J.
Dr J noted that X clearly had a close and loving relationship with his mother. The mother presented as attuned, warm and an invested parent and that X was accustomed to the routines with her, despite the mother’s comments about the father often being absent. Prior to separation, X also had a close and loving relationship with his father and relishes his time with him with the activities they do together. He also commented on the parents different parenting styles, which is not unusual.
Dr J accepted that there were “unambiguously” problems with X’s school attendance pre-separation. Having the benefit of seeing the parties in cross-examination, I find the father misrepresented this to Dr J and I reject any suggestion that the mother is less equipped to deal with X’s schooling needs.
When Dr J prepared his report the father was not proposing to live in Melbourne. Dr J notes that if the father relocated to Melbourne a week about arrangement could be workable for X and would reduce the number of changeovers and mental load required.
When the mother was cross-examined by the father’s Kings Counsel with respect to Dr J’s report, she disagreed with the benefits he sighted of a week about arrangement. The mother felt that the father came to the interview with misleading information about school refusals and absences and that she was under attack. Her feelings about that and her cynicism about the workability of a week about arrangement are entirely reasonable. She also said that she feels that she provides X with the daily emotional safety and security and refers to the fact of the second incident where Ms C contacted X that he did not want to contact his father about that.
During cross-examination, Dr J said that children of X’s age gravitate towards a simpler model of spending time with each parent in an equal shared basis and that this could potentially work well for X, although he acknowledged there are other variables to consider.
Dr J also acknowledged that particularly given the circumstances of their separation, it was of credit to the mother that she had not weaponised this. Despite their communication difficulties, there was a remarkable level of functionality between them when considering the circumstances of their separation, even going so far as to having arrangements for the family dog to transition with X between the parents’ households.
Dr J expressed the view that the sub-optimal co-parenting relationship is not necessarily a deal breaker with respect to an equal time arrangement, particular with older children and that he does not see their limited communication as being an obstacle to considering an equal time arrangement.
Dr J warned that there may be issues in the future as X comes into adolescence with respect to his father having another family. Dr J referred to X currently being psychologically avoidant of that issue and the possibility that anger, resentment and a sense of betrayal may fester as he gets older, and the father will need to tread carefully to address this.
Currently X is compartmentalising and setting aside that issue, but he will not be able to do so forever and whether it hits him as a teenager, or in adulthood he may become protective and defensive of his mother and angry with his father. Dr J acknowledged that this is not inevitable but formed the view that X has not fully processed the situation and that the father will need to deal with this with X sensitively and carefully. This is the concern that the mother has.
Dr J found the mother to be more emotionally connected to X and attuned with him but also stressed that X also has a strong bond with his father. Dr J also conceded that there was just as much reason not to change the current arrangements. For him it is a question as to whether the agreements could be further optimised. There is a risk that change would not improve it. With respect to the father’s preference to keep the arrangement as it is and not change it to a single block of 5 nights, he said that he could have reasons for why he would prefer that and parents say those sorts of things all the time. Dr J said he thought the risk of changing to an equal time arrangement is modest.
I find that the mother is more emotionally attuned to X and provides him with that sense of emotional security, and that she is better able to deal with very difficult issues arising out of the father secretly having another family. In observing this, I am satisfied that the father is keen to do what he can to assist and to make things easier for X but it appears that the father has also been somewhat avoidant about the consequences.
I am also satisfied that while the parties have limited communication there have been several instances where the father has failed to communicate concerns to the mother, which undermines his evidence about working collaboratively with her. He is responsive to the mother when she raises issues in text messages, but is not proactive about contacting her. One example of this is his concerns about X’s school performance and his school reports. One explanation could be that is because he has exaggerated his concerns to these proceedings, whether consciously or unconsciously, just as he did with respect to school refusals purpose. Given X’s relationships with his parents. It seems unlikely that X would complain to his father about changeovers and not complain to his mother.
DISCUSSION OF APPLICABLE LEGAL PRINCIPLES & CONCLUSION
The parties agree that they should exercise equal shared parental responsibility for X. The Court is obliged to consider whether or not an equal time is in X’s best interests. Such an arrangement would be reasonably practicable, as the parties will be living near each other. Whilst the parents’ communication is limited, they are able to consult with each other when required. Whilst they have very different parenting styles, they are both keenly interested in and supportive of X’s interests such as his skating.
Dr J conceded that when he prepared his report the father was adamant he was not moving to Melbourne. Thus, it was not an option considered in detail. In oral evidence he outlined various advantages that he saw in a week about arrangement but also acknowledged that there are risks, as there are with any change, however they are low.
The current orders enable X to maintain his relationship with extended members of his maternal and paternal family. There are no concerns about expense that would hinder X spending time with both of his parents. Neither parent raises cultural issues. Neither party raises any concern about family violence. Happily, this case is not about risk. Both parents are highly capable and motivated to provide X with the best care possible. Both parents have shown their commitment to X and that they understand the serious responsibilities of parenthood.
I must consider and place some weight on X’s views. He has just started high school. He clearly loves both his parents and enjoys a close relationship with both. When asked about his living arrangements he expressed a preference for the arrangements to remain as they are. Again, at the time of the report the father was not proposing to move to Melbourne.
While I acknowledge that the separation has had a negative impact on the parties, the effect on X may not become fully apparent until he matures and comes to term with the fallout. The father’s submissions gloss over this issue. I do not accept the father’s submissions that there is cogent evidence that an equal time arrangement is in X’s best interests. The mother downplayed the father’s parenting role. Both parents are highly capable of providing for X’s physical and intellectual needs. The mother is more emotionally attuned to X’s needs and is better equipped to deal with the sensitive and difficult issues around Ms C and D.
I have formed the impression that the father was very keen to use whatever arguments he could to support his push for an equal time arrangement and that has led him to magnify issues such as school refusal, changeover, and school performance in an attempt to support his case. What it has highlighted, however, is the father’s lack of insight and lack of sensitivity. It has also highlighted how limited the parties’ communication is.
As I have stated, I find that the mother is more emotionally attuned to X’s needs and is better able to sensitively respond to the issues arising out of the father’s relationship with Ms C, where X now knows he has a half-brother.
I accept that the father wants to provide what support he can to X and is keenly aware of that issue, but the evidence shows that X is more comfortable to discuss this with his mother in more detail, as opposed to raising this with his father. It is likely that X‘s comments to his father that it is not an issue and that it is not troubling him, which the father takes it at face value, is because he is not as comfortable talking about these issues with him.
Despite the deep hurt and betrayal the mother feels, it is to her credit she has not sought to restrict the father’s time with X. Whilst X knows his parents are not on great terms, he also knows both his parents are there for him and are supportive of him. Both parents acknowledged X freely contacts his parents and the father regularly spends additional time with X when X asks him to attend the skate park. There is no reason to think this will change.
As X continues in his high school adolescent year, he is likely to gravitate more towards his peers and away from his parents which is developmentally normal. X is clearly comfortable contacting both parents and has been supported in having flexible ad hoc arrangements in addition to what is set out in the orders. I am satisfied this will continue.
I accept, as Dr J observed there is the attraction of simplicity to a week about arrangement, and Dr J’s view that the risks of such change are low. Given the considerable amount of change X has had to address in the last couple of years and given the mother’s greater emotional sensitivity and attunement, I find having considered all of the evidence that the parenting arrangements should remain unchanged.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 24 February 2023
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