Hand M

[2008] FCWA 5

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: Hand M [2008] FCWA 5

CORAM: PENNY J

HEARD: 13, 14, 15, 16 & 28 NOVEMBER 2006,

15 DECEMBER 2006, 20 & 23 MARCH 2007

DELIVERED : 14 JANUARY 2008

FILE NO/S: PT 3063 of 2002

BETWEEN: H

Applicant/Father

AND

M
Respondent/Mother

Catchwords:

Children's issues - parent with whom the child should live - poor relationship between parties - husband sought child live week about with each parent - concerns about husband's ability to encourage child's relationship with wife - child to live with wife - husband to spend time with child weekly

Legislation:

Family Law Act 1975 s 60B, s 60CA, s 60CC(2) & (3), s 61DA. s 65DAA(1) & (2)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr F Castiglione

Respondent: Ms G Braddock

Independent Children’s Lawyer : Mr D Whittle

Solicitors:

Applicant: Phillips Legal

Respondent: DCH Legal Group

Independent Children’s Lawyer : Paterson & Dowding

Case(s) referred to in judgment(s):

Nil

1These proceedings relate to the child of the parties, [the son] (“[Brett]”), born [in] August 2001. In particular, his parents, [the father] and [the mother], have been unable to agree as to the time he should spend with each of them and who should have parental responsibility for him. [The father] says they should equally share the time they spend with [Brett], with changeover being on the Friday of each week after school. [The mother] seeks a raft of 42 orders in her re-amended Minute of Orders Sought. Although the minute does not deal with the “routine” time [Brett] should spend with [the father], her proposal for 2008 onwards is that [Brett] spend alternate weekends with [the father] and half school holidays in blocks of around one week at a time.

2Although [Brett] is now only 6 years of age, there have been proceedings in this Court relating to him since 2002. In October 2002 consent orders were made in relation to the contact [the father] should have with [Brett]. Four months later [the mother] commenced proceedings seeking a variation of the orders obtained in October, and in particular seeking supervision of the handovers and an order permitting her to travel [overseas] with [Brett]. Orders were made whereby the handovers were to be supervised by Relationships Australia, and [the mother] was able to travel [overseas].

3[Dr W] was appointed as Single Expert and produced his first report on 22 November 2003. [The father] ceased spending time with [Brett] just before Christmas 2003 and in January 2004, filed a notice discontinuing his response to [the mother]’s application. Final orders were made in relation to [Brett], on an undefended basis, on 8 March 2004.

4In January/February 2005 [the father] sought to re-establish contact with [Brett]. It was not until June 2005 that the parties could agree the terms upon which that time with [Brett] would occur. The contact was to be for a few hours, then gradually increasing so that [Brett] would spend time with [the father] from 8 October 2005 to 7 January 2006 from 9.00 am to 5.00 pm each day. The handovers were to be supervised by Mother Hen.

5In December 2005 [the father] brought proceedings seeking an order that [Brett] attend [ a particular college]. That application was dismissed. He then filed a Notice of Appeal relating to that decision. [Dr W] provided further reports in relation to the parties and [Brett]. [The father] brought proceedings seeking that [Dr W] be discharged as the Single Expert. This application was dismissed.

6The trial in relation to the time the parties should spend with [Brett] took place over eight days. I am told the legal costs of the parties exceed $350,000. Such was the animosity between the parties that an Independent Children’s Lawyer was appointed at a cost to Legal Aid WA in excess of $20,000. Both parties borrowed extensively from family members to be able to proceed to the trial. Both have little assets and neither are large income earners. How the cost of this litigation commenced by [the father] in February 2005 could result in fees incurred to that extent I do not know, but examination of the parties’ personalities, and their behaviour, which will follow later in this judgment, may explain why these fees have been so high. Suffice to say, [the father] has been frustrated by [the mother]’s negative attitude towards him and alleged fearfulness of him. He has resented the fact that the handovers have to be supervised and is determined he will get what he wants in relation to the time he spends with [Brett].

7[The mother], on the other hand, is determined not to deal with [the father] personally and only wishes to communicate with him through her solicitors or a communication book. She perceives [the father] as aggressive and threatening. Any situations where she is forced to have to deal with him in person she finds distressing. As a result, even requests by [the father] to have boots sent with [Brett] when he spends time with him resulted in [the mother] obtaining legal advice and a “lawyer’s letter” responding.

8While [the father]’s application, in February 2005, sought contact with [Brett] in terms as recommended by [Dr W], that application was quickly amended when he did not agree with [Dr W]’s assessments and/or recommendation. He is seeking a shared residency arrangement, which is not recommended by [Dr W].

9The Independent Children’s Lawyer’s position after the trial was that in relation to [the mother]’s re-amended Minute of Orders Sought, that it provide the basis for future final orders of the Court. I understand from this comment that he supports [the mother]’s position in relation to the time [the father] should spend with [Brett].

10These proceedings have not been assisted by the attitude of [the father]’s solicitor. Lengthy letters which seem to be more point scoring than helpful have been forwarded to [the mother]’s solicitors, some up to six pages long. In response to one lengthy message, [the mother]’s solicitors wrote a two page letter dealing unemotionally with the issues raised. The response from [the father]’s solicitor was extraordinary. He stated as follows:

“The tone of your letter is carping, petty, mean minded and unconstructive. It is consistent with what our client perceives to have been your client’s attitude in her conduct of the proceedings throughout. We are instructed to make clear, and to continue to make clear, that it will not discourage our client from continuing to develop his relationship with his son.”

11The letter went on to deal with “the more blatantly unfounded of your particular allegations”. Letters in this tone border on the unprofessional and are totally unhelpful in proceedings where there are highly combative parties. While I am sure [the father] was very happy to read letters sent on his behalf in these terms, lawyers, in my view, have an obligation to deal with each other and self represented litigants in an unemotional and objective fashion, and not write letters which have the ability to inflame an already tense situation. Unfortunately, from my observations, some practitioners in the area of family law have forgotten their professional obligations. It is important that they understand they are not just spokespersons for their client, but have an obligation to properly advise their clients and act professionally.

The law in relation to children’s issues

12S 60B of the Family Law Act 1975 sets out the objects of Part VII, that is the part of the Act dealing with children, and the principle underlining the object. S 60B states as follows:

“(1)The objects of this Part are to ensure that the best interests of children are met by:

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children; and

(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

13S 60CA provides when deciding whether to make a particular parenting order in relation to a child, I must regard the best interests of the child as the paramount consideration. S 60CC(2) and (3) sets out primary and additional considerations I must take into account when determining what is in the child’s best interests.

14S 61DA of the Family Law Act 1975 states that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child, except in cases of abuse and family violence.

15S 65DAA(1) states that if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and whether spending equal time is reasonably practicable, and if it is, consider making an order to provide for the child to spend equal time with each parent.

16S 65DAA(2) states that if there is an order for shared parental responsibility for the child and the Court does not make an order for equal time with each of the parents, the Court must consider whether the child spending substantial and significant time with each of the parties would be in the best interests of the child, and whether it is reasonably practicable, and if it is, to consider making such an order.

17It is within this legislative framework that I must determine the parties’ competing applications.

Section 60CC considerations

18The primary consideration set out in s 60CC(2) which I must take into account when determining what is in [Brett]’s best interests are:

(a)the benefits to him of having a meaningful relationship with both [the mother] and [the father]; and

(b)the need to protect him from physical or psychological harm.

19It is not in dispute that [Brett] benefits from having a meaningful relationship with both [the mother] and [the father]. This meaningful relationship has developed despite [the father] walking away from [Brett] for a period of some 18 months and [the mother]’s very negative attitude towards him. Should [Brett] continue to live primarily with [the mother] and spend time with [the father], I am satisfied that the meaningful relationship will continue, provided he remains a constant in [Brett]’s life and does not give up on the time he spends with him just because he does not get what he wants.

20If [Brett] lived a week about with each of the parties, I am satisfied he would maintain a meaningful relationship with [the father], but I have concerns about whether he would still have a meaningful relationship with [the mother]. I will deal with this issue later in my judgment.

21I am satisfied that in either arrangement proposed by the parties, [Brett] will not be subjected to abuse, neglect or family violence. I do, however, have concerns about [Brett] suffering from psychological harm should he be put in a situation where he has to witness disagreements between his parents or be subjected to any negative comments by either of them in relation to the other parent.

22S 60CC(3) sets out the additional consideration I must take into account when determining what is in [Brett]’s best interests.

(a) any views expressed by the child and any other factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

23[The mother] says that [Brett] has expressed some reluctance to spend extended periods with [the father]. [Brett] on occasions has stated that he does not wish to go and spend time with his father. Most recently this seems to have to have occurred at the beginning of January 2007. I note from reading the communication book, exhibit “ICL.3”, that both parties have acted positively in relation to this issue, although [the father] has indicated that he believes [Brett]’s attitude results from [the mother]’s attitude towards him. I am satisfied that while [the mother] might be overprotective of [Brett], she has encouraged him to attend when contact has been ordered, and has facilitated that contact.

24[Brett] is only 6 years old and his conduct at times, of telling each of the parties what he thinks they wish to hear, is very typical of a child in a situation where his parents do not have a good relationship with each other.

(b) the nature of the relationship of the child with:

(i) each of the child’s parents

25As stated previously, [Brett] has a very good and close relationship with [the mother] and a close relationship with [the father]. [Dr W] in his most recent report on 6 November 2006, commented that [Brett] “has a strong relationship with both his parents, but the evidence suggests that the relationship with the mother and maternal relatives were a little stronger than with the father and his family” He went on to say that [Brett] was “developing a secure relationship with his father and the father’s family”.

(ii) other persons (including any grandparent or other relative of the child)

26[The mother] is very close to her parents and, for a time after separation, resided with them. They care for [Brett] out of school hours when [the mother] is working. Not surprisingly, [Brett] has a close relationship with them and with [the mother]’s brother, who he calls [Uncle].

27[The father] has remarried and [Brett] has a close relationship with his wife “[Annie]”, as [Brett] knows her, and her two children, [Max] and [Renae].

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

28[The father] believes that [the mother] is not encouraging [Brett] to have a close and continuing relationship with him. On page 22 of the communication book he states that her desires are “of minimising [Brett]’s involvement with his father”. It is necessary to examine some of the history of the parties since separation to determine whether [the mother]’s attitude to [the father]’s time with [Brett] has been that of a protective mother or of a vindictive, jilted wife as portrayed by [the father].

29The parties both agree their relationship was a volatile one and there were occasions when they were each involved in physical aggression against the other. After the parties separated, their relationship was reasonable for five or six weeks. [The mother] stayed in the house and [the father] visited and helped her look after [Brett] when she had to work. In April 2002 [the mother] found [Annie]’s number in [the father]’s telephone. She is sure [the father] had a sexual relationship with [Annie] during the time that she was pregnant. After seeing the phone number in the book, she attacked [the father] and punched him. He eventually sat on her and contained her aggression. Since that time their relationship has been very poor.

30[Dr W] commented in his report of 22 November 2003, that the description given by both parties of their conduct, both during the marriage and after separation, was an “immature pattern of relating”. [The father] denies having an affair with [Annie] before they separated, but says that shortly after the separation he and [Annie] commenced a relationship. As was stated by [Dr W]:

“Whatever the reality, [the mother]’s perception is of the betrayed woman who is having an extremely difficult time coming to terms with this issue.”

31[Dr W] went on to comment in November 2003 that [the mother]’s level of fear of [the father] was escalating and becoming more extreme. His comment was that while there may be some grounds for her feeling annoyed and frustrated, he felt her level of fear of [the father] was excessive in the circumstances.

32In 2003 [the mother] complained to [Dr W] about [the father] stalking her. This related to [the mother] coming into contact with [the father] before handovers. Stalking was a very emotive term to use and was a gross exaggeration of [the father]’s conduct but, as I shall deal with later, [the father] has been very good at pushing the limits in relation to any orders, and although he was very well aware that [the mother] did not wish to confront him, he did not comply with contact orders which were put in place so they did not have to see each other.

33During 2002 and 2003 there were issues relating to parenting about which [the father] and [the mother] could not agree. They related to dummy and toilet training, constipation and also suggestions from [the father] that [Brett] may have been the subject of sexual abuse. [Dr W]’s report of November 2003 discusses this issue in particular. [The father] had implied that [Brett] may have been sexually abused whilst in [the mother]’s company, the inference being that it was a member of [the mother]’s family who may have been responsible. [Dr W] stated that when he spoke to [the father] about this, he did not seriously believe it was likely that one of [the mother]’s family had sexually abused [Brett]. [The father] had gone to the extent of having [Brett] assessed by a doctor to see whether he had been sexually abused. [The father] told [Dr W] he had done this because his lawyer had advised him to have [Brett] checked to prevent allegations of sexual abuse being raised against him later. As [Dr W] stated, this was an intrusive process and involved an anal examination of a small child, for the reasons only of protecting [the father].

34Prior to the report of [Dr W], [the mother] had employed private investigators to follow [the father] so as to investigate his claims that he was not working and, therefore, his income for the purposes of child support assessment should be decreased. This was inflammatory conduct and caused concern to [the father], [Annie] and her children.

35During the time the parties were together they had a sexual encounter with another couple. Photos were taken of this interaction and particularly of [the mother] with another woman. [The father] was responsible for getting these photos developed and provided a copy of the photos to the other couple involved. The negatives and a set of prints were kept in the cupboard at [the mother] and [the father]’s former matrimonial home. In September 2003 the photos involving [the mother] and another woman were sent to her mother and her grandfather. [The mother] found this extremely distressing and embarrassing. Her grandfather had been ill for some time prior to receiving these photos, and the family were concerned as to the effect upon him of receiving these photos. I have no doubt this incident, which [the mother] believes was initiated by [the father], has hindered her ability to have a relationship with him.

36[The father] denies that he sent these photos and suggests that [the mother] sent them herself to attempt to “set him up”.

37In my opinion, it is necessary to make a determination in relation to this issue for two reasons. Firstly, because it allegedly caused significant distress to [the mother] and has influenced her attitude to [the father]. Second, if the photos had been sent by [the father], it says a lot about him and the lengths to which he will go to if he does not get his own way.

38The orders made by consent in relation to child welfare matters on 28 October 2002 were quite generous to [the father]. At this stage [Brett] was just one year old and it was agreed that he would have contact each weekend from 5.30 pm Friday until 5.30 pm Saturday. Arrangements were made for the contact to increase into 2003. [the mother] commenced proceedings on 6 February 2003 seeking, in particular, to have the handovers supervised because of some difficulties which had occurred at handover and seeking an order to allow her to take [Brett] [overseas] for a holiday.

39On 8 April 2003 it was ordered that handovers for contact would be supervised by the child’s contact service at Relationships Australia, Fremantle. [The father] was very unhappy with this order. [Mr S] in his affidavit sworn 23 January 2004, sets out the history of the supervision by Relationships Australia up to December 2003. [The father] was spoken to by [Mr S] because it was found that he was sending letters in [Brett]’s bag at handovers to [the mother]. [The mother] did not wish this to occur. The father] was advised that all letters needed to be passed through the supervisors. [The father] told [Mr S] that he was unhappy about this and said that he would continue to send letters through [Brett] as he had previously.

40[Mr S] described [the mother] and her mother as courteous and co-operative. He observed, however, that it was clear from conversations with [the father] that he did not wish to use the service. The co-ordinator had two phone conversations with [the father] where he spoke of his anger towards [the mother] and made derogatory remarks about her. He was asked to cease swearing on one occasion. [Mr S] made the observation that [the father] appeared to have some difficulty in controlling his negative emotions in relation to contact issues. [Mr S]’s report dated 19 September 2003 stated that [the father] did not want to use the service, which he believed was biased and discriminatory against him. [Mr S] recommended, at that time, it was in [Brett]’s best interests, and necessary for the protection of [the mother], that the handovers continue through Relationships Australia. It was his opinion that because of [the father]’s negative emotions towards [the mother] he would find it difficult to act in an appropriate fashion during self-managed handovers.

41This initial report from [Mr S] was dated 19 September 2003. Both [the mother]’s mother and maternal grandfather received the pornographic photos of [the mother] on the same day. These photos were sent in the mail. Obviously, that they were posted before the 19^th and before the issue of the report. I am satisfied, however, that there was an ongoing dispute between [the father] and Relationships Australia, and he reacted very poorly to having to have his handovers supervised. [Dr W]in his report of November 2003 talks about the “tit for tat” conduct of [the father] in relation to a number of issues. In my view, given that he was not getting his way in relation to the contact handovers, he had the motivation to cause some very significant embarrassment to [the mother].

42 [Mr L] gave evidence about the circumstances in which the pornographic photos were taken. He advised that he and his wife had made contact with [the father] and [the mother] in 1999 through an adult website. They agreed to take part in a sexual encounter which resulted in photographs of a pornographic nature being taken. Two sets of the photographs were printed; one for each couple, and [the father] retained the negatives. [Mr L] stated that those photographs had never been viewed by any other person when in he and his wife’s possession, and were not sent to [the mother]’s family. He confirmed that he had had no contact with either [the father] or [the mother] after the incident in 1999 until [the mother] contacted him in October 2003 after the photos had been sent to her family members. I accept [Mr L]’s evidence is accurate.

43Both [the mother] and [the father] agree that these photographs were retained with the negatives in the former matrimonial home. Apart from [Mr & Mrs L], no-one else had a copy of them. [The father] had access to the home initially after separation when he returned to care for [Brett]. He also entered the home when [the mother] was on holidays in [the Eastern states]. He took items of furniture from the house. He had the opportunity, at that time, to take the photos and the negatives.

44I cannot accept [the father]’s suggestion that [the mother] sent these photos to her mother and her grandfather to set him up. At the time these photos were sent, [the mother] was heavily reliant upon her parents to assist both in the care of [Brett] and in relation to her own emotional support. In my view, it is highly unlikely that she would have jeopardized that support from her parents by sending these photos to them, which had the potential to shock and disgust them.

45The only person who had both the motivation to embarrass [the mother] and access to the photos was [the father]. In my opinion, they were sent by him with the purpose of attempting to reduce the support [the mother] would get from her family. This was a reaction to him being forced to attend for contact handovers at Relationships Australia, a situation he bitterly resented.

46While [the father] says that he wants to have a civil relationship with [the mother] for the benefit of [Brett], he frequently does things which he knows will upset her, or does things which she would obviously find upsetting. An example of the latter is the communication book. [The mother] did not want to have to communicate at all with [the father], and did not want to use the communication book. On 17 March 2006 an order was made that she and [the father] had to use the communication book to exchange information in relation to the welfare of [Brett]. It is [the father]’s case that [the mother]’s animosity towards him has come about because of her mistaken belief that he and [Annie] had an affair while she was pregnant with [Brett]. At page 22 of the communication book in March 2007, he suggests that [the mother] should accept that he left her, get over it and move forward with “some normality”. Despite knowing that [the mother] was deeply upset about his relationship with [Annie] he placed, on the front of the communication book, photos of the wedding party at their wedding with [Brett] in each of the photos. Quite frankly, I cannot imagine anything more insensitive. When giving evidence in chief in relation to this issue, [the father] thought it would appropriate if [Brett] had photos of his family on the communication book. He said that [Brett] had picked the photos and he put them there. In re-examination [the father] stated that he now understood that his conduct may have upset [the mother] and he would not put photos of himself and [Annie] on the front of the book again. [The father] complains about [the mother]’s reaction to him, however, he accepts little responsibility for his actions contributing to her very negative response to him.

47Another area where [the father] has pushed to become involved, knowing that [the mother] would have been unhappy about this involvement, relates to [Brett]’s schooling. On the first day of [Brett]’s attendance at school he and [Annie] attended at 8.00 am on the first morning. He said he wanted to share [Brett]’s first day at school. He did this without [the mother]’s knowledge. He had an appointment to meet the principal at the school at around 10.00 am. The principal spoke to [the father] when he attended at the school at 8.00 am and told him to leave as he had no authority to be there. [The father] agreed in cross-examination that he did not think about what the consequences might be to [the mother] if she saw him there unexpectedly and he gave no consideration to the effect upon [Brett] had [the mother] been distressed about this.

48[The father] and [Annie] have been regularly attending at [Brett]’s school on roster. They are often there on a Friday when [the father] knows that this is one of the days when [the mother] takes [Brett] to school. In my view, the attendance on that day was deliberate and done to upset [the mother]. There was no evidence given as to why he could not attend on another day, even though he has been requested to do so.

49An incident occurred at the school in August 2006 when [the father] went out of his way to go up and speak to [the mother] in the school room in front of [Brett] and others. He is well aware of the fact that [the mother] does not want him to speak to her in this type of situation. On three occasions he spoke to her about the provision of [Brett]’s portfolio. In evidence, he stated that he thought this was appropriate as he had previously requested the provision of the portfolio in the communication book. Upon inspection of the communication book he had never made that request, but raised it on that day. This is yet another example of him being absolutely insensitive to [the mother] and her issues with him. He simply will not accept that she does not wish to interact with him. Even if [the father] does not accept there is any reason for [the mother] not to interact with him, he should respect that that is her position. The issue of the portfolio could have been arranged through the communication book, which subsequently happened.

50Another instance of the complete insensitivity of both [the father] and [Annie] to [the mother]’s feelings relates to a dinner arranged by the school for parents of the children in [Brett]’s class. [The mother] put her name on the list to attend at the dinner. [Annie] also put her name on the list to attend the dinner. Most of the others on the list were mothers of the students in [Brett]’s class. Some fathers were going. In my view, the conduct of [Annie] was highly inflammatory. The effect of it was that [the mother] withdrew from the dinner.

51[Dr W] described [the father]’s attitude very well when in his report of November 2006, when discussing his ambition to have a normal relationship with [the mother]:

“While this is a commendable goal, as I have documented previously ([the mother]) is unable to deal with [the father] at that level and rather than back off and allow her to rebuild trust, the approach appears to be one pushing to get what he wants, which keeps re-traumatising [the mother].”

52In addition, both [the father] and [Annie] have been involved in conduct which has had the potential to undermine [the mother]’s authority. They organised a party for [Brett]’s birthday in 2006. They did not enquire of [the mother] whether she was also having a birthday party for [Brett] until the invitations were about to be handed out. [The father] and [Annie] had invited to the party every child in [Brett]’s class. [The mother] had organised a party for some of the children. The conduct of [the father] and [Annie] totally ignored the fact that [the mother] was the primary care-giver for [Brett]. They should have consulted with her as to whether [Brett] was having a party before organising a party themselves. In my view, it is inappropriate that there be two parties for [Brett]’s classmates merely to satisfy the whims of a parent. It is appropriate that there be an order that this conduct not be able to occur in the future.

53When preparing the invitations to the party, [the father] said that [Brett] decided he wanted to invite [the mother], [Mr B], [the mother]’s partner at the time, and [Brie], his daughter. [The father] was aware that [the mother] would not attend such a party. He did not discourage [Brett] from issuing the invitation and stuck it in the communication book. Unfortunately, the effect of including the invitation would have raised in [Brett]’s mind a possibility that [the mother], [Mr B] and [Brie] would attend the party. I have no doubt he was disappointed when [the mother] stated that they would not.

54[the father] also accepted that he discussed, in front of [Brett], a family holiday, which he, [Annie] and her two children were attending [overseas]. He was well aware of the fact that the time which would be required for the holiday was well in excess of any contact time recommended by [Dr W] up to that time, and was likely to be opposed by [the mother]. Despite this, he continued to discuss the holiday in front of [Brett] and raise the possibility with him that he might attend. The effect of raising an issue in this way had the potential to undermine [the mother] as it was highly likely she was not going to consent to this holiday, and [Brett] would blame her for the fact that he was not going. In re-examination, [the father] agreed that he would not do this type of thing again. What is concerning is that he does not think that this type of conduct is inappropriate until it is pointed out to him.

55With this attitude of [the father]’s I have a very real concern that if [Brett] lived with him 50% of the time, he would attempt to impose himself on [the mother] to a greater extent than he does now, and to control [Brett] and his relationship with [the mother]. In my view, this would not be in [Brett]’s best interests.

56As to whether [the mother] will encourage [Brett] to have a good relationship with [the father], in my view, that question is best answered by an assessment of what his relationship with [the father] is now, despite [the father]’s conduct towards [the mother] since separation and her poor opinion of him. [Dr W] observed that [Brett] had developed a secure relationship with [the father] and his family, he stated that for this to be able to occur it indicated that [the mother] must be promoting a relationship, and he must be having a good time during the visit. I am satisfied that [the mother] will promote [Brett]’s relationship with [the father].

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either his or her parents

57The change suggested by [the father] will have the effect of [Brett] seeing significantly less of [the mother] than he now does. [Brett] was only 7 months when the parties separated. He has lived primarily with [the mother] since that time. The time he spends with [the father] has gradually been increased to take into account his developmental stages and in a manner which will provide him with a secure base from which to get to know [the father] and his family. That has been successful. In my view, it is likely to be detrimental to [Brett] to be separated from [the mother] regularly for the length of time proposed by [the father].

58Another effect of spending less time with [the mother] will be that [the father] will have more control over [Brett]. In my view, that would not be in [Brett]’s interests, as I have stated previously, he is unlikely to promote [Brett]’s relationship with [the mother], of whom he has a very poor opinion.

59If [Brett] spent more time with [the father] he would see less of his grandparents with whom he has a close relationship, and who have been very significantly involved in his care since separation. On the other hand, he would see more of [Annie] and her children, [Renae] and [Max], with whom he has a very good relationship.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

60At the present time contact handovers are effected by Mother Hen. [The father] can see no reason for this, but [the mother] is still not prepared to have to come into direct contact with [the father]. In my view, she should not have to. Whether [Brett] spent equal time with [the father] and [the mother], or whether he resided mainly with [the mother], in my view, changeovers should be in a situation where there is no opportunity for the parties to meet. A changeover at school, where possible, would allow this to happen without the expense of Mother Hen being involved.

(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child)

to provide for the needs of the child, including emotional and intellectual needs

61[Dr W] has described [Brett] as follows:

“His manners, behaviour and general demeanour were indicative of quality parenting. He presented as an emotionally stable and well adjusted child.”

62In my view, [the mother] has provided well for [Brett] in the past and will continue to do so. I am satisfied that [the father] has the capacity to care for [Brett]’s physical and intellectual needs. There is no doubt he lacks insight, not only to his own behaviour and the effect that it will have on other people, but also to the effect it will have upon [Brett]. In my view, [the mother] is more capable of providing for his emotional needs than is [the father].

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

63Initially after separation the parties had a reasonable relationship. When [the mother] formed the view that [the father] had been having a relationship with [Annie] while she was pregnant, their relationship became a very acrimonious one. Despite the level of hurt experienced by [the mother], she was still able to agree in October 2002 that [the father] have contact with [Brett] one day each weekend, overnight. [Brett] was just over one year old at that time. The handover was to take place at a service station and be effected by the parties.

64After the orders were made in 2002, [the father] agrees that the orders were complied with by [the mother]. There may have been one occasion when contact did not take place. Part of the reason for [the mother]’s application in February 2003 was that she wished to travel [overseas] with [Brett], and needed [the father]’s permission. That permission was not forthcoming until after the application had been filed. She also sought supervision of the handovers. As stated previously, this was opposed by [the father], who still thinks it is unnecessary. By December 2003, [the father] was becoming more and more unhappy with the fact that he had to effect the handovers at Relationships Australia. On 6 December 2003, [the father] was advised by a supervisor that [Annie] should arrive on time to pick up [Brett]. On one occasion in October she had arrived early. The whole purpose of the arrangement at Relationships Australia was that [the mother] would not have to see either [Annie] or [the father]. [The father] became annoyed and stated that “this was to do with that ‘paranoid woman’”, referring to [the mother].

65[The father] stated that he was very close to walking away from [Brett] at that time. When told that [Brett] was within hearing distance while he was discussing this issue, [the father] stated he had already told [Brett] that he would probably never see him again. In evidence, [the father] stated that while he made that comment to the supervisor, he had not told [Brett].

66[The father] also told the supervisor there was a report on [the mother] stating that she was “crazy” and something needed to be done about that. There was no such report.

67On 13 December 2003, after [the father] was informed the Relationships Australia centre was unable to facilitate handovers over Christmas Eve and Christmas Day, he stated that unless [the mother] brought [Brett] for a self managed handover at a designated shopping centre, his family members would go to her house to collect him.

68[The mother] was prepared to use Mother Hen for the handover at this period. She did not want [the father]’s family members attending at her house over the Christmas period, or at all. Relationships Australia co-ordinator phoned [the father] and advised him that the court orders did not provide for self managed handovers. [The father] insisted that the order did make allowance for self managed handovers. When told there would not be a self managed handover, he advised the co-ordinator that he would not be doing any more handovers and that he would not be seeing [Brett] again.

69On 22 December 2003, orders were made that the venue for Christmas contact handover be nominated by Mother Hen. This order had been opposed by [the father], who wanted a self managed handover. This handover did not ever take place. A letter was forwarded to [the father] on 26 December 2003 asking what he intended to do about handovers in the future. There was no response to that letter and he simply ceased seeing [Brett].

70It should also be noted that [Dr W]’s first report was published on 22 November 2003, just a month before [the father] ceased contact with [Brett]. That report suggested that [the father]’s time with [Brett] be maintained at one day per week. [Dr W] further stated that block contact should be in days being equal to his age, that is, two days at 2, three days at 3, and a week at 6. As to the supervision of handovers, [Dr W] stated that because of the possibility of the parents arguing in front of [Brett], the fact that [the father] was a person who would speak his mind and that [the mother] could become emotional extremely easily, then the handovers should continue to be supervised for several more years. This did not accord with [the father]’s wishes.

71When interviewed by [Dr W] in June 2005, after [the father] had decided he wanted to see [Brett] again, he told [Dr W] that he decided not to see [Brett] because he was financially and emotionally drained, and that [De W]’s previous report had “hit home”. He stated it was one of the hardest decisions he had made.

72In my view, [the father] walked away because he was not getting what he wanted, that was, self managed handovers. The report of [Dr W] recommended that the supervised handovers should continue for some years. While [the father] says at this time he was financially drained, he was, in fact, representing himself in relation to children’s issues. From November to March 2004, child support proceedings were on foot, initiated by [the mother]. [The father] continued to be represented in relation to those proceedings and took part in them. Up to March 2004 he was represented by solicitors in relation to child support issues, but he filed a Notice of Discontinuance in January 2004 in relation to the children’s issues. Despite [the father] not taking part in the children’s issues proceedings, [the mother] still sought orders that he have contact with [Brett] each weekend from 5.00 pm Friday to 5.00 pm Saturday, with provision that if [the father] had not seen [Brett] for a number of weeks, then there be no further contact until a court order.

73During the time [the father] was not seeing [Brett], he sent cards and presents to [Brett]. [The mother] passed on some of the presents, but not all of the cards. One of the cards sent in June 2004 stated that “before you know it we will be playing, laughing cuddling again. Lots and lots of love, Dad”. What [Brett] was supposed to make of this at the age of 3½, when he had not seen [the father] for six months, I do not know.

74Of more concern is a card written by [Renae], [Annie]’s daughter, which states:

“… I would do anything to see you one more time, to see you smile and have one of your big huges [sic]. I’m gonna [sic] make another copy of this letter so if you don’t get it when your [sic] older and I see you I can show that this letter was for my little brother [Brett]. …”

75In my view, it was totally inappropriate that a card such as this was sent to [Brett]. Obviously, [Renae] was unaware of the real reason [Brett] was not coming for contact. This is yet another example of [the father] lacking insight in relation to emotional issues.

76In January 2005, [the father]’s solicitors wrote to [the mother]’s solicitors proposing that contact be reinstated and the parties attend counselling. In the alternative, it was proposed that [the mother] attend at [the father]’s home with [Brett] in order that she would be able to see the environment in which he has contact. Even in a situation where parents had a reasonable relationship after separation, this would be an unusual suggestion. In a situation where [the mother] had done everything to avoid having contact with [the father], it was yet another example of [the father] refusing to accept [the mother]’s attitude towards him and again pushing the boundaries to achieve his own position. These facts were pointed out to [the father]’s solicitors by [the mother]’s solicitors. [The mother], in January, agreed that [the father]’s contact should be re-instated in a supervised environment. [the father]’s response to this was to file an application in April 2005 seeking an order that [Brett] reside jointly with his parents, and that contact be re-instated by [the father] having contact with [Brett] for two hours on Monday, Wednesday and Saturday for a period of four weeks, and on Monday Wednesday and Friday, overnight until Saturday, for a further four weeks, and then weekend contact. The routine contact was then to be from 5.00 pm Sunday to 5.00 pm the following week. This application was breathtaking considering [the father] had walked away from [Brett], and up until this time had not seen him for 16 months, despite [the mother]’s agreement in January that he could see [Brett] if he reverted to the previous framework of the orders.

77It was not until June 2005 that [the father] first saw [Brett]. There was then a dispute between the parties over the circumstances in which the next two periods of contact should be exercised, with Mother Hen as the supervisor. It was not until August 2005 that regular contact was resumed by [the father] with [Brett]. I share [Dr W]’s view that not having seen [Brett] for such a long period, and having been offered contact in January 2005, one would have thought [the father] would do anything to see [Brett]. Instead, it took a number of court attendances for issues in relation to the resumption of contact to finally be settled, and it take place.

78In my view, the conduct of [the father] over the period from December 2003 until August 2005, when the contact finally resumed, was not responsible. He was not prepared to put his own frustrations at having to have supervised handovers to one side and concentrate on what was best for [Brett].

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

79It is essential, in my view, for an order to be made that is least likely to lead to the institution of further proceedings. These parties have been involved in court proceedings, on and off, since 2002. They have expended a ridiculous amount of money on them. For their own sake, and that of [Brett], it is important that the orders I make are final.

80If I made orders whereby [Brett] was spending equal time with each of his parents, I am sure there would be problems which would result in applications to the court by either party. [The father], in my opinion, is incapable of accepting that [the mother] does not want to have a relationship with him. He is likely to want to control the situation and [the mother] would find this difficult.

(m) any other fact or circumstance that the court thinks is relevant

[The father]’s depression

81[The father] was first diagnosed with depression in February 2003 by his general practitioner, [Dr D]. At that time he stated to [Dr D] that he was upset as a result of the breakdown of his relationship. The symptoms described by him, according to [Dr D], were typical of someone suffering from depression. He gave him material to read and started him on Zoloft, 50 mg per day. This is a relatively low dose, which is still prescribed for [the father]. Around Christmas 2004 he ceased taking the medication. In February 2005 he attended upon [Dr D] and told him that he was not doing well since he had ceased taking the Zoloft, and that his mood was not good. [Dr D] advised that he commence to take the Zoloft again.

82On 14 February 2005, [the father] was taken by his mother to the [local hospital] and assessed by [Dr B], a psychiatric registrar. When interviewed by [Dr B], he stated he was living with his partner and her two children and that he had a four year old child, who he had not seen since December 2003. He stated that he was worried that the boy would not know him at all. He told [Dr B] that he had been on internet chat room sites behind his partner’s back, and she wanted to end the relationship. He described how, in his view, “he stuff(s) up every relationship”. He described having suicidal thoughts, but said he had no active plans to commit suicide and stated that he does not really want to kill himself. He asked the rhetorical question “why do I keep hurting my partner?” His mood was described as being very sombre and he had feelings of worthlessness, and that he was a failure. He was diagnosed by [Dr B] as suffering from chronic dysthmic disorder and dependent personality traits. It was suggested that he take medication and initiate some psychotherapeutic process regarding his personality difficulties. He was referred back to his general practitioner.

83Since that time he has been taking the Zoloft medication. [Dr D]’s opinion was that he would continue to take the medication indefinitely.

84The fact that [the father] has suffered from depression since 2003, and that he had been taken to [the local hospital] for a psychiatric assessment in February 2005, only came to the notice of the Independent Children’s Lawyer and [the mother]’s lawyer late in the proceedings. The trial was adjourned for four months to enable [Dr B] to give evidence. If [the father]’s depression was appropriately treated and did not impact upon his ability to care for [Brett], then it would not be an issue in these proceedings. What has made it an issue is the fact that [the father]’s evidence at trial was that he had not contacted [Dr D] about his depression until 2004. [The father] did not disclose that he had been treated for depression to [Dr W]. [Dr W], in November 2003, reported [the father] saying as follows:

“In terms of personal counselling, [the father] said he had seen a counsellor at Relationships Australia for a few sessions because he was angry and uptight at the end of the relationship. He said that in particular, over the last six months, he had tried to remove himself from the emotional issues. [the father] said that he had never seen the psychiatrist and never had any mental health issues of his own. He said that his brother had a short period in [ an institution], but this was to do with “not coping” rather than any formal mental illness.” (emphasis mine)

85At that time [Dr W] “wondered” whether [the father] was suffering from despondency “on the depression continum”. [Dr W] was adamant that he asked [the father] whether he was taking any medication and he was told he was not. This was not true. At that time he had been taking Zoloft for nine months. [Dr W] stated that given the fact that [the father] had not been frank with him, he had concerns about his lack of honesty, I share the same view.

86What is just as disturbing is the fact that [Annie] has not been frank with the Court in relation to their relationship, and [the father]’s conduct during it. [Annie]’s affidavit sworn 30 October 2006 purports to describe the perfect couple, living the perfect life, devoted to each other and their children. Nowhere does she refer to the circumstances which lead to [the father] being taken to [the local hospital] by his mother, or the fact that at that time she wanted to end the relationship because of his activities involving internet chat rooms. In [Annie]’s evidence she stated that she and [the father] commenced living together in March/April 2003, but she had been in a relationship with him for some time before they started living together. She said that in about June 2002 she told the children that her relationship with [the father] was going to be permanent. If [the father] was in a committed relationship with [Annie] from June 2002, I find it unusual that he was having checks for sexually transmitted diseases in December 2002, and in March 2003. I have serious reservations about [Annie]’s portrayal of the family, and family life as being almost perfect. Neither she nor [the father] have been frank about his conduct and their personal relationship.

Conclusions

87Pursuant to s 61DA(1) I must, when making a parenting order in relation to a child, apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe a parent of the child has engaged in abuse of the child or family violence. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. Parental responsibility in relation to a child means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. I have already set out in detail the acrimonious relationship between the parties, [the mother]’s attitude to [the father] and [the father]’s conduct towards [the mother]. In my view, the presumption in this matter is rebutted because of the relationship between the parties. It would not be appropriate to force them to have to agree on issues. Already they have proven they could not agree on the school he should attend. [the mother] has set out in her re-amended Minute of Orders Sought an order that she have responsibility for making decisions about [Brett] and long term issues relating to him following consultation with [the father]. The effect of this is that [the father] will be consulted about decisions, but [the mother] does not have to agree with them. In my opinion, such an order in relation to parental responsibility is appropriate in this case as [the mother] will be primarily responsible for [Brett]’s care.

88S 65DAA(1) states that if a child’s parents are to have equal shared parental responsibility, then the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and was reasonably practicable. In this case I have not made an order as to equal shared parental responsibility, however, given that it is the order sought by [the father], I must consider whether it is appropriate in these circumstances. In my view, it would not be in [Brett]’s best interests for the [Brett] to spend equal time with each parent. I have described at some length the attitude the parties have to each other, their lack of ability to be able to communicate on issues except through the communication book and their lawyers. I have described at some length [the father]’s lack of acceptance of the fact that [the mother] does not want to interact with him. [The father] lacks insight into the effect his actions have on others and [Brett] and, in my view, he is not in a position to provide for [Brett]’s emotional needs to the extent that [the mother] is. There is far too much room for conflict between the parties if such an order was made which would negatively impact upon [Brett]. It is simply not appropriate in these circumstances that [Brett] spend equal time with each of his parents.

89It is appropriate that [Brett] live with [the mother], but spend time with [the father]. At the present time, the orders of 8 March 2004 allow for alternate weekend contact from 5.00 pm Friday until 5.00 pm Sunday. In my opinion, it is appropriate for [the father] to have contact on one week night in the intervening week in order that he can be involved in [Brett]’s schooling and homework. The time that [Brett] spends with [the father] on the week night will commence from after school and he will be returned to school the next day. On the weekends when he spends time with [the father], the time with him should commence from after school Friday until Sunday. [Brett] is now aged almost 6½ years. I would hope it would possible for [Brett] to be returned on the Sunday without the need for supervision, but also in a situation where [the mother] should not have to come in contact with [the father] unless she wishes to do so.

90In relation to the school holiday contact, it is my opinion that [Brett] could now deal with spending time with [the father] for one week at a time. It is appropriate, therefore, that during the April, July and October school holidays [Brett] spends time with [the father] for a period of one week. During the summer school holidays commencing at the end of this year, I agree with [the mother]’s proposal that [Brett] spend time with [the father] for a period of three blocks of seven days and seven nights. Thereafter, in the summer school holidays, [the father] should spend time with [Brett] for one half of those holidays. I intend to adjourn this matter to enable the parties to prepare a minute to reflect these orders.

91In relation to [the father]’s application that [Brett] attend [a private college], I have already determined that it is [the mother] who should make the decisions in relation to parental responsibility. At this time she says she is not able to afford the fees of [a private college], and is happy for [Brett] to attend the [local] primary school. It is not [the father]’s case that there is anything wrong with the [local] primary school, rather he says that the facilities at [the private college] are better and that if he attends that school [Brett] will have an opportunity to go to school with [Rene] and [Max]. It is highly likely, as stated by [the father], that [the mother] decided not to send [Brett] to [the private college] because [Rene] and [Max] were also enrolled at the school. Even if that was her reason, I am satisfied [Brett]’s educational needs are being met at the [local] primary school. It is her intention to send [Brett] to [a private college] in year 5. I do not think there is anything inappropriate in relation to that proposal.

I certify that the preceding [91] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate