Hanran and Nott
[2011] FMCAfam 309
•8 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HANRAN & NOTT | [2011] FMCAfam 309 |
| FAMILY LAW – Children – with whom should child live – retention of child contrary to orders – interim order for return of child – best interests – primary and additional considerations – should parents share parental responsibility – change of surname – change of school – expert reports – credibility of evidence – expert had not read all salient medical records – expert not provided all available affidavits – diagnoses of personality disorders – drug and alcohol abuse – suicide attempts – family violence – recall of highly specific detail not a guarantee of accuracy – effect of negative emotions on memory – negative campaign – hearing still adversarial – no working relationship with school principal – child’s preference to spend less time with father – primary attachment to mother – minimisation of psychological difficulties. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA Evidence Act 1995 (Cth), s.140 |
| Aldridge & Keaton (2009) FLC 93-421 Beach and Stemmler (1979) FLC 90-692 Briginshaw v Briginshaw (1938) 60 CLR 336 Champness & Hanson (2009) FLC 93-407 Chapman and Palmer (1978) FLC 90-510 Flanagan and Handcock (2001) FLC 93-074 Handcock and Flanagan (2002) FLC 93-102 H and H (2003) FLC 93-168 Helton v Allen (1940) 63 CLR 691 Lansa & Clovelly (2010) FamCA 80 Mahony and McKenzie (1993) FLC 92-408 Moose & Moose (2008) FLC 93-375 MRR v GR (2010) FLC 93-424 Mulvaney & Lane (2009) FLC 93-404 Petit & Jacaruso (2010) FMCAfam 450 Reifek v McElroy (1965) 112 CLR 517 Taylor & Barker (2007) FLC 93-345 |
| Applicant: | MR HANRAN |
| Respondent: | MS NOTT |
| File Number: | LNC 130 of 2009 |
| Judgment of: | Roberts FM |
| Hearing dates: | 16, 17 & 18 June, 5 & 6 August, 21 & 22 September 2010 |
| Date of Last Submission: | 22 September 2010 |
| Delivered at: | Launceston |
| Delivered on: | 8 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. B. McVeity |
| Solicitors for the Applicant: | McVeity & Associates |
| Counsel for the Respondent: | Mr K. J. Waterhouse |
| Solicitors for the Respondent: | P L Corby & Co. |
| Counsel for the Independent Child’s Lawyer: | Mr P. A. Welch |
| Solicitors for the Independent Child’s Lawyer: | Philip Welch |
ORDERS
That MR HANRAN (“the father”) and MS NOTT (“the mother”) have equal shared parental responsibility for the child [X] born [in] 2003 (“the child”).
That the parties shall create and maintain a communication book (“the communication book”) for the purpose of each advising the other of matters pertaining to the child and each party is hereby restrained from using the communication book for any other purpose.
That the child is to live with the mother.
That the child is to spend time with the father as follows:
(a)during school terms from after school every second Thursday until the start of school on the following Monday morning (extending until Tuesday morning if the Monday is not a school day for the child) with the fortnightly cycle to commence on the first Thursday after the start of the relevant school term;
(b)in 2011 and each odd numbered year thereafter from 3:00 pm on Christmas Eve until 3:00 pm on Christmas Day;
(c)in 2012 and each even numbered year thereafter from 3:00 pm on Christmas Day until 3:00 pm on Boxing Day;
(d)in the event that Fathers’ Day does not fall on a day that the child is otherwise with the father pursuant to these Orders then from 10:00 am until to 5:00 pm on that day;
(e)in the event of 4 November falling on a weekday then for a period of two hours commencing at a time to be agreed, but failing agreement at 4.30 pm;
(f)in 2011 and each odd numbered year thereafter from 5:00 pm on the Tuesday following Easter Sunday until 5.00 pm on the Sunday thereafter;
(g)in 2012 and each even numbered year thereafter from after school on the Thursday immediately prior to Good Friday until 5:00 pm on the Tuesday following Easter Sunday;
(h)for one half of the May/June and September Tasmanian school term holidays;
(i)
for one half of the Tasmanian long summer school holiday in each year upon the basis that the child is to be with the father and the mother on an alternating weekly basis but providing also that the child is to be with the mother in even numbered years from
3:00 pm on Christmas Eve until 3:00 pm on Christmas Day and in odd numbered years from 3:00 pm on Christmas Day until
3:00 pm on Boxing Day; and
(j)at such further or alternate times as maybe agreed by the father and the mother by SMS text messages or in writing in the communication book.
That in the event that Mothers’ Day falls on a day on which the child would otherwise spend time with the father pursuant to these Orders then such time with the father shall be suspended between the hours of 10:00am and 5:00pm on Mothers’ day.
That except when any changeover of care of the child pursuant to these Orders would otherwise occur at the child’s school, all changeovers are to take place at such locations as the parties may agree by SMS text messages or in writing in the communication book but failing such agreement at McDonalds Family Restaurant in [suburb omitted] in Tasmania.
That the father and the mother are each hereby restrained from denigrating the other or any partner of the other to the child or to any other person in the presence or hearing of the child.
That the father and the mother are each hereby restrained from removing the child from the State of Tasmania without first obtaining the written consent of the other or an Order of a court of competent jurisdiction.
That the mother has leave to change the child’s primary school enrolment from the [G] School to the [E] School.
That the mother must authorise the child’s school to provide to the father copies of all the child’s school reports and school correspondence and notices that a parent is normally entitled to receive.
That in the event that the child suffers any serious ill health or injury the party who has care of him at that time must as soon as practicable give notice and details of that ill health or injury to the other party.
That the father and the mother are each to attend a post-separation parenting course (“the course”) to be arranged by the Independent Child’s Lawyer (“the ICL”) and the commission of the ICL is extended for such time as is necessary for him to make such arrangements and to monitor the parties’ attendance at the course.
That the ICL has liberty to apply in relation to the preceding Order hereof.
IT IS NOTED that publication of this judgment under the pseudonym Hanran& Nott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNC 130 of 2009
| MR HANRAN |
Applicant
And
| MS NOTT |
Respondent
REASONS FOR JUDGMENT
The applicant is MR HANRAN (“the father”) and the respondent is MS NOTT (“the mother”). Their dispute is primarily about with whom their seven year old child should live. Apart from a brief period in April/May 2009, to which I will refer in more detail below, [X] born [in] 2003 (“the child”) has always lived predominantly with his mother. The father wants to change that.
Brief litigation history
On 29 May 2007 a Registrar of this Court made orders by consent which provided;
·That the parents have equal shared parental responsibility for the child;
·That the child live with the mother;
·That the father spend time with the child for at least one 24 hour period each week; and
·That the child have such further or alternate time with the father as agreed from time to time.
On 10 March 2009 the father’s then lawyer filed an application seeking final and interim orders in identical terms to provide for the following:
a)That they have equal shared parental responsibility for the child;
b)That the child live with the mother;
c)That the child spend time with the father:
i)in week one from after school on Thursday until before school on Monday;
ii)in week two on Monday and Thursday from after school until the following morning; and
iii)on a shared basis during school holidays and on special occasions.
d)That within 7 days the mother sign all documents necessary to change the child’s name from “Nott” to “Nott-Hanran”;
e)That the mother not be permitted to relocate from the greater Launceston area without the father’s signed consent or a Court order;
f)That the parents “co-operate and arrange such counselling or assistance if required to assistance (sic) the child in any transition pursuant to these Orders”.
The Court file reveals that the mother was served with that application and the supporting affidavit on 1 April 2009.
On 11 April 2009 the father had been due to return the child to the mother but he did not do so. On 15 April 2009 the mother filed a handwritten Application in a Case supported by a handwritten affidavit. At that time the mother was not represented by a lawyer. She sought the following orders:
1. That [X] be returned immediately to his mother …
2. That no further time be spent between (the father) and [X] until further court orders are made.
The father’s current lawyers filed a response to that on 24 April 2009 seeking orders:
1. That until further order the child … live with the father.
2. That (the child) spend time with and communicate with the mother as may be ordered by the Court.
I heard the parties competing interim applications on 8 May 2009, at which time the parents were represented by their current lawyers. After giving ex tempore reasons, I made orders which inter alia provided for:
·the return of the child to live with the mother;
·the child to spend time with the father each second weekend from after school on Thursday until the start of school in the following week, and such further or alternate times as may be agreed between the parents from time to time; and
·the appointment of an Independent Child’s Lawyer for the child (“the ICL”).
On 15 June 2009, after the ICL was appointed, I made orders for the parties to attend a reportable Child Dispute Conference (“CDC”) with a Family Consultant and for them to subsequently attend a Conciliation Conference with a Registrar of this Court.
On 20 July 2009 the Family Consultant reported to the Court that no agreement had been reached between the parties about with whom the child should live, with whom he should spend time or which school he should attend. She commented that there was “a very high degree of conflict between the parents” and that the father was alleging that “the mother has personality issues that impact on her parenting ability” and the mother “expresses significant concerns about psychiatric issues and drug abuse in relation to the father’s parenting capacity”
The Family Consultant recommended that a specialist report in relation to “Adult psychiatric issues” be prepared and that the scheduled Conciliation Conference be delayed pending receipt of such an expert report.
On 23 October 2009 Mr J (“the psychologist”) was appointed as a Court expert to provide a report to the Court. His report dated
7 December 2009 (“the psychologist’s report”) was released to the parties on that day. I shall refer further to that report below.
On 17 December 2009 the matter was set down for hearing on
29 March 2010, with a hearing time estimated by counsel to be up to three days. However, on 1 March 2010 that hearing date was vacated and the matter was adjourned for hearing on 16 June 2010 with an estimated hearing time of three days.
On 26 March 2010 Dr R (“the psychiatrist”) was appointed as a further Court expert to provide a report to the Court. His report dated 3 May 2010 (“the psychiatrist’s report”) was released to the parties on 10 May 2010.
The hearing commenced on 16 June 2010 and continued over six further days; 17 and 18 June, 5 and 6 August, 21 and 22 September 2010. For convenience, I shall simply refer to those dates as “Day 1” through to “Day 7” in these Reasons.
The matter had also been mentioned on 28 and 29 June 2010. However, the hearing could not proceed on those days, primarily because of medical difficulties being experienced by the mother.
At the hearing, the orders being sought by the father were:[1]
[1] See the father’s Amended Application filed 10 February 2010
1. That all extant Orders between the parties be and are hereby discharged.
2. That the father have sole parental responsibility for [X] … but in the event of an issue of parental responsibility arising shall promptly and genuinely consult with the mother about the issue prior to making a decision in relation to that issue except in the case of an emergency.
3. That [X] live with the father.
4. That [X] spend time with and communicate with his mother as follows:-
4.1 during school terrn:-
4.1.1 each alternate weekend from after school Friday until 6.00p.m. Sunday extended to 6.00p.m. Monday on long weekends; and
4.1.2 from after school each following Wednesday until the commencement of school on Thursday morning.
4.2 for two periods of two weeks in the Summer school holiday period;
4.3 for one period of one week in each of the May/June and September holiday periods;
4.4 in 2010 and each even year thereafter from 3.00 pm Christmas Eve until 3.00 pm Christmas Day;
4.5 in 2011 and each odd year thereafter from 3.00 pm Christmas Day until 3.00 pm Boxing Day;
4.6 on the mother's birthday for a period of three hours;
4.7 each Mother's Day from 10.00a.m. to 4.00p.m.;
4.8 such further or varied time as is agreed by SMS, email or by communication book between the parties.
5. That any changeover in care pursuant to these Orders, except periods of time that conclude at the beginning or end of school, shall take place at the father's home with the mother and any other occupant in her vehicle remaining inside that vehicle.
6. In the event that there is a transfer of care involving [X] taking with him toys, clothing and medication, those items shall be returned with [X] at the following changeover.
7. That on [X]’s birthday he shall spend time with the parent who does not have care of him on that day for a period of two hours (extended to four hours on a non-school day) at times to be agreed.
8. That any time [X] would otherwise be spending with his mother pursuant to these Orders shall be suspended:-
8.1 For a period of four hours on a day to be nominated not less than seven days in advance by the father to the mother and being a date fixed for the celebration of [X]’s younger brother, [Y]’s, birthday;
8.2 In the case of Father’s Day at 5.00p.m. on the day prior to Father’s Day.
9. That [X] continue to be enrolled at his present school throughout the 2010 school year.
10. In the event that [X] suffers any serious ill health or injury the party who has the care of him at that time shall as soon as practicable thereafter give notice and details of that ill health or injury to the other party.
11. That the parties shall create and maintain a communication book for the purposes of advising each other of any particular issue, event or circumstance involving [X] in including:-
11.1 proposals for any further or other time for either parent to spend with [X];
11.2 medical and pharmaceutical issues;
11.3 any other issues of short or long term responsibility or contemplated action that might reasonably be expected to be of interest to the other parent;
12. The parties will not use [X] as the medium to communicate with the other party but shall communicate information relating to [X] by text message or email.
13. The father shall do all things necessary to permit [X]’s school and any medical practitioner or other treating professional caring for [X] to provide all reports to the mother that would normally be provided to a parent.
14. No party denigrate any other party in the presence of [X] or permit any other person to do so in the presence of [X].
15. For the purpose of giving any notice pursuant to these Orders, such notice shall be given by text message or email and to give effect to this order:-
15.1 The Respondents shall notify the Applicant Mother and keep the Applicant Mother notified of a maintained email address and mobile phone number; and
15.2 The Applicant Mother shall notify the Respondents and keep the Respondents notified of a maintained email address and mobile phone number. [2]
16. In the event that either parent wishes to travel out of the state with [X] they shall provide the other parent with at least seven days advance notice in writing of that wish, together with an itinerary, details of [X]’s residential arrangements whilst travelling and a phone number for emergency contact.
17. That [X] shall be henceforth known and described on all records relating to him with the surname [Nott-Hanran] and each party shall do all things as are reasonably required to correct any record to reflect this Order.
[2] In fact, the father is the applicant and the mother is the respondent.
At the start of the hearing the mother’s Case Outline stated that she was seeking orders that the child live with her and spend less time with the father than I had provided for in the interim orders of 8 May 2009. That was confirmed by her counsel at the end of Day 1.[3] However, at the start of Day 2 her counsel foreshadowed that the mother would be amending what orders she was seeking before the opening of her case. He gave a brief outline of the orders that she would be seeking.[4] On 29 June 2010 a Further Amended Response was filed and in that document the mother sought orders as follows:
[3] Transcript, Day 1 at page 40
[4] Transcript, Day 2 at page 53
1. That the Applicant Father and Respondent Mother have shared parental responsibility for child [X] born [in] 2003 (“[X]”).
2. That [X] live with the Respondent Mother.
3. That [X] spend time with the Applicant Father as follows:-
a. From after school every second Thursday through to the commencement of school the following Monday morning (extending to Tuesday morning in the event that Monday is a public holiday);
b. In 2010 and each even year thereafter from 3:00pm Christmas Day until 3:00pm Boxing Day;
c. In 2011 and each odd year thereafter from 3:00pm Christmas Eve until 3:00pm Christmas Day;
d. In the event that Father’s Day does not fall on a weekend preserved the Father pursuant to (a) hereof then from 10:00am on such date to 5:00pm on such day;
e. In the event of 4 November falling on a weekday then for a period of 2 hours at a time to be agreed;
f. In 2011 and each odd year thereafter from 5:00pm on the Tuesday following Easter Sunday until the commencement of school the following Monday;
g. In 2012 and each even year thereafter from after school on the Thursday immediately prior to Good Friday to 5:00pm on Tuesday following Easter Sunday;
h. For one half of the May/June and September Tasmanian school term holidays;
i. For one half of the Tasmanian Christmas / New Year school holidays in each year upon the basis that such time be exercised by [X] with the Father on a week about basis time alternating between the Mother and the Father; and
j. Such further or alternate times as maybe agreed by SMS or communication book between the parties from time to time.
4. That in the event of Mother’s Day falling on a weekend in which [X] has time with the Father pursuant to 3.a. hereof then such time shall be suspended between the hours of 10:00am and 5:00pm on the Sunday with [X] returning to the Father from 5:00pm Sunday through until commencement of school the following Monday morning.
5. That the parties be restrained from denigrating the other of them to the child or to a third person in the presence of the child.
6. That both parties be restrained from denigrating any partner of either of the parties to the child or to a third person in the presence of the child.
7. That the Respondent Mother authorise [X]’s school to provide to the Applicant Father copies of all of [X]’s school reports and school correspondence and notices specifically of and incidental to [X].
8. That both parties be restrained from removing [X] from the state of Tasmania without the consent of the other party or failing that an Order of the Court of Competent Jurisdiction.
9. That any changeover in care pursuant to this Order. except periods of time that conclude at the beginning or end of school. shall take place at McDonalds Restaurant, corner of [address omitted].
10. That [X] attend the [E] School, [E].
11. That in the event that [X] suffers any serious ill health or injury then the party who has his care at that time shall as soon as practicable thereafter give notice and details of that ill health or injury to the other party.
12. That the parties shall create and maintain a communication book for the purposes of advising each other or any significant issue. event or circumstance involving [X] including:-
a. Any proposal for any further or alternate time for either parent to spend with [X]; and
b. Medical (including pharmaceutical) issues.
I reserved my decision on Day 7.
On 8 December 2010 the father filed an Application in a Case seeking to re-open the hearing. That application was opposed by the mother and the ICL when I heard argument on 20 December 2010. I dismissed that application to re-open on 23 December 2010, and there is no need to repeat my reasons for that here.
Legal principles
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). Section 60CA provides that the court must consider the best interests of the child as the paramount consideration.
Section 60B sets out the objects of Part VII of the Act and the principles which underlie those objects. It provides:
60B(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In determining what is in a child’s best interests I must consider the matters set out in s.60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The court must also take into account those of the “additional considerations” set out in s.60CC(3) that are relevant.
There has been some debate about whether the “primary considerations” should be given more weight than the “additional considerations”. That debate may continue from time to time. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case. I am fortified in that view by the judgment of May and Thackray JJ in Mulvaney & Lane,[5] in which their Honours said:
76. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. ….
[5] (2009) FLC 93-404. Also see Aldridge & Keaton (2009) FLC 93-421 and Champness & Hanson (2009) FLC 93-407
Section 61DA provides a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence. Sub-section (4) provides that 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 for the child”.
However, if the presumption does not apply, it does not automatically follow that sole parental responsibility will be ordered. The court may make such parenting orders that it considers proper in the particular circumstances of the case.
Sub-section 65DAA(1) provides that if a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.[6]
[6] See the High Court decision in MRR v GR (2010) FLC 93-424
If an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that would be reasonably practicable. See sub-sections 65DAA(2) and (3).
Brief background
Where I refer to any fact in these Reasons, it should be regarded as a finding of fact unless a contrary intention is clear from the context.
The father is aged 38 years and the mother is 39 years old. They started their volatile relationship in 1997. It included a number of separations and reconciliations and their relationship ended finally at about the time of the child’s birth. The parties are in dispute about the actual date of their final separation, but nothing really turns on that.
The child lived with the mother following the parties’ final separation and the parties’ accounts differ about how much time the child then spent with the father. However, it is clear that the father had very little contact with the child during the first three years of his life and for a time he disputed his paternity of the child.
The Consent Orders of 29 May 2007 provided that the child was to live with the mother and spend time with the father “for at least one twenty-four hour period per week” and at such other time as agreed, but the father agreed that there were some weeks when he did not see his son at all because he was [away].[7]
[7] Transcript, Day 2 at page 77
As stated above, the father did not return the child after an agreed Easter visit in April 2009. On 8 May 2009, I made interim orders that provided for the child to live with the mother and spend time with the father from Thursday to Monday each alternate week.
The father is in a relationship with the stepmother and they have a son aged nearly 3 years (“[Y]”). The stepmother has another child from a prior relationship, now aged approximately 12 years (“[Z]”). She sees her father every second weekend and at other arranged times.
At the time of the hearing, the mother was not in another relationship. She has an adult son from a prior relationship (“[A]”).
The evidence
The father relied upon affidavits by himself and his partner, Ms S (“the father’s partner”) filed 2 June 2010 and an affidavit of Ms J (“Ms J”) filed 4 June 2009.
The mother relied upon her affidavits filed on 15 April 2009, 8 May 2009 and 2 June 2010. In addition, she had filed affidavits by Ms T (“Ms T”), Ms L (“Ms L”) Mr L (“Mr L”) and Ms W (“Ms W”).
The ICL had filed affidavits by the child’s school principal, Ms C (“the Principal”) and three teachers from his school. Two of the teachers were not required for cross-examination,[8] so the evidence in their affidavits was unchallenged. The other teacher (“Ms R”) was cross-examined.
[8] Ms V and Mr G
In addition, the reports of the psychologist and the psychiatrist were received into evidence. In accordance with my usual practice in matters involving children, those Court experts gave their oral evidence first.
The order in which oral evidence was given is as follows:
Day 1 The psychologist, the psychiatrist and the father Day 2 The father and the father’s partner Day 3 Ms J Day 4 The mother Day 5 The mother and Ms W Day 6 Mr L, Ms L, Ms T and Ms R Day 7 The Principal
Comment about the evidence
It is clear that in order to determine the issues of whether there should be sole or shared parental responsibility and with whom the child should predominantly live, I must have regard to the child’s best interests as my paramount concern. That means that I must consider the evidence in the light of section 60CC of the Act. However, before turning specifically to a consideration of the relevant section 60CC factors, I wish to comment upon some of the evidence and, in some instances, the credibility of some of the people who gave that evidence.
I shall refer to the evidence in the order that the oral evidence was given.
The psychologist and the psychiatrist
At the outset I must place on the record the fact that I have absolutely no concerns about the professional competence or the honesty of either the psychologist or psychiatrist. Both are well respected in their fields and both give evidence regularly in this Court and in other courts. However, having said that, I do have some concerns about the weight that I should attach to the report and the opinions of the psychologist.
I note with some disappointment that the psychologist may have been provided with inadequate documentation on one hand and inappropriate documentation on the other. Expert witnesses form their opinions upon the information that is available to them, and if they are given inadequate or inappropriate information, it must have an effect upon the quality of their expert evidence.
Firstly, it appears that the psychologist may not have been provided with, or read all the father’s medical records that had been produced pursuant to subpoena. That is significant because he was asked to report upon “whether either parent is or may be suffering from any, and if so what psychological, emotional or psychiatric condition/ disorder or illness”.
In his report the psychologist had said:
The Medical records obtained from the [omitted] Medical Centre for Mr Hanran contained only one record salient to this assessment from the point of view of psychiatric or substance abuse history, being a record indicating that on 24 June 2005 he was prescribed temazepam for insomnia.[9]
[9] At paragraph 6
When he was cross-examined, the psychologist stated:
The only entry that I have was that on 24 June 2005, he was prescribed Temazepam for insomnia. [10]
[10] Transcript, Day 1 at page 16
In fact, the subpoenaed records of the father’s GP practice show many more entries that appear to me to be “salient …from the point of view of psychiatric or substance abuse history”. They were on the following dates:[11]
[11] See the chronology annexed to the psychiatrist’s report
1995 12 July 1997 23 December 1998 9 April 1999 19 July 2000 26 September and 18 December 2001 18 October, 21 November and 28 November 2002 13 March and 24 May 2003 18 November 2004 25 June, 6 August and 13 September 2005 10 January, 31 January, 3 June, 26 June and 8 September 2006 18 May 2006 2008 17 January and 5 March
I note that the psychologist says that the prescription for Temazepam in 2005 was on 24 June, whereas the psychiatrist records it as 26 June. However, nothing turns upon the minor discrepancy. What is relevant is that the psychologist recorded only one such entry, when there were twenty three.
The mother’s counsel took the psychologist through part of the chronology attached to the psychiatrist’s report and asked:
So what [the psychiatrist] is saying is when he looked at subpoenaed records he noted a number of attendances beyond 2005. It would be correct to say you don’t refer to those in your report?
His response was:
No, if I had been exposed to them I certainly would have included them in my report and I wonder if perhaps that document wasn’t part of the subpoena documents that I reviewed.
It is very clear from the chronology annexed to the psychiatrist’s report that the psychologist’s statement that “the father’s psychiatric history is restricted to the period between 1995 and 2001”[12] is inaccurate because the [omitted Hospital] reports show that on 28 November 2003 he reported having suicidal thoughts “every evening” and that he had been using Valium, alcohol, cannabis and morphine alternately to stop his suicidal ideas.
[12] Paragraph 49 of the psychologist’s report
In my view, the failure of the psychologist to be provided with, or of him to view a full medical history of the father is more significant than just not being shown the more recent documents. Clearly, he was not in possession of all the facts in relation to the father’s psychiatric or substance abuse history. While he lists six attendances by the mother upon her GP when she was prescribed medication for either anxiety or depression, he only mentions one attendance by the father upon his GP in June 2005 that he considered to be salient …from the point of view of psychiatric or substance abuse history.
Secondly, it appears from the psychologist’s report itself that he may not have been provided with all relevant affidavits available at the time. On the second page of his report the psychologist lists the affidavits that were provided to him. If that list is correct, it would appear that he was provided with no less than seven affidavits filed on behalf of the father, all of which were prepared by his solicitors, while the only affidavit in support of the mother’s case provided to him was the brief handwritten affidavit prepared by the mother herself at a time when she had not been able to obtain legal assistance.
The order for the appointment of the psychologist was made on
23 October 2009; well after 8 May 2009 when the mother had filed a further affidavit prepared by her solicitor which dealt with many of the issues raised in affidavits filed on behalf of the father. The failure to provide that affidavit clearly had the potential to undermine the value of the psychologist’s report. In this regard, I note that in his oral evidence the psychologist conceded that he had been pressed for time in his interview of the mother. It is possible that the time pressures on him could have been alleviated if he had been in possession of the mother’s affidavit filed 8 May 2009. It most certainly would have made him better informed about her case, and could have made it unnecessary to ask particular questions during what the psychologist described as “a finite period of time to conduct the … interview with the mother”.[13]
[13] Transcript, Day 1 at page 7
Further, four of the affidavits provided to the psychologist were from witnesses who did not subsequently provide any evidence at the hearing. As a consequence that affidavit evidence remains completely untested to this day.
I note that the psychologist stated when cross-examined that:
·he gave those affidavits “very little weight”;
·he views affidavits “with a healthy degree of scepticism”; and
·he makes “the assumption that the truth lies somewhere in the middle”. [14]
[14] Transcript, Day 1 at page 11
However, when one considers that the psychologist was given a large number of professionally drawn affidavits supporting the father’s case and only a somewhat brief handwritten affidavit supporting the case of the mother (and which effectively dealt with none of the father’s criticisms of her), one can only wonder where he thought the “middle” might have been when he embarked upon his interview process.
Further, I consider the psychologist’s assertions that he gave the affidavits very little weight and viewed them with a healthy degree of scepticism to be somewhat undermined by what he said in paragraph 50 of his report. He said:
The Writer’s impressions are in accord with the father’s report, the collateral reports of [the Contact Centre Manager] and [the Principal]. The Writer did not investigate the persons who filed affidavits in support of the father, and this is a possible limitation of the assessment. The fact that the views expressed in those affidavits are generally consistent with the views expressed by [the Contact Centre Manager] and [the Principal] is noted. The manner in which [the mother] dismissed all those affidavits did give insight into her personality functioning.[15]
[15] My emphasis
In my view, those comments show clearly that that the psychologist’s opinion of the mother was influenced by the affidavits in support of the father that were provided to him and, as I have noted, they included the affidavits of four deponents whose evidence was not put or tested before the court.
It was put to the psychologist by the mother’s counsel that he may have been “swayed a little bit” by affidavits that were “mistakenly” given to him and his response was:[16]
Again, all I can say is that I give most weight to sources that I consider to be objective and reliable, and in this particular assessment, I took particular note of the views of [the Contact Centre Manager] and [the Principal].
[16] Transcript, Day 1 at page 12
The fact that the psychologist appears to have relied quite heavily upon the opinions of the Contact Centre Manager and the Principal is of some concern to me in the particular context of this matter.
The psychologist said this in relation to his conversation with the Contact Centre Manager, :
He recalled [the mother] to be an argumentative person who directed her anger to a number of staff members. He said the mother eventually refused to use the service after her complaint about the paternal grandmother spending time with [the child].
Nowhere in his report does the psychologist mention that the Contact Centre Manager told him that the mother’s complaints about the Contact Centre were such that they were discussed at a high level within Relationships Australia (Tasmania) and importantly, caused a significant change of practice by the management of that Centre. In this regard, a letter from the Contact Centre Manager to the mother’s solicitor contains the following paragraph that appears to be a clear acknowledgement that the mother’s complaint had merit.
[The mother’s] concerns have since been raised with the Northern Manager of Family Services and Deputy CEO of Relationships Australia (Tasmania). Relationships Australia (Tasmania) encourages feedback from clients, and responds to feedback where appropriate. In this case a review has taken place and the practice for “authorised persons” changed on 14/02/07 for supervised visits to be attended only by persons listed on family court orders or where there is mutua1 agreement between parents.
I feel sure that if the Contact Centre Manager had mentioned that to the psychologist, it would have been noted in the psychologist’s report.
I accept the mother’s evidence that she had made formal complaints to the State education authority about the Principal[17] but note that no mention of that is made in the psychologist’s report. I assume therefore that he was not told about it by the Principal. However, I shall comment upon the evidence of the mother and the Principal below.
[17] She used the term “Board of Education”. See Transcripts, Day 4 at pages 23 and 83 and Day 5 at page 129.
In view of the above, I have serious reservations about the weight that I should attribute to parts of the report and the evidence of the psychologist. However, I note to his credit that he appeared to accept that the psychiatrist had more information and was better able to give opinions about the mental states of the parents.
What I have said above does not mean that I will dismiss the report and evidence of the psychologist in its entirety. He observed the child and his interaction with the parents (whereas this psychiatrist did not) and that evidence is useful to me in what I have to determine.
I accept the psychiatrist’s diagnoses of the parties and for the record I will quote what he said in his report about each of them.[18]
[18] See the Psychiatrist’s report at page 16
He said this about the father:
On the available history [the father] would appear to have had suffered from extended episodes of anxiety and depression of mood but without dear evidence of Major Depression. He acknowledges explosive temper, has repeatedly suffered injury from assaults, being assaulted and punching inanimate objects. He would appear to have been anxious and dysthymic, and to have used cannabis habitually for long periods of time with occasional bingeing of alcohol or use of psychostimulants or opiates.
A diagnosis of Personality Disorder requires “an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual's culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment”. On the available evidence [the father’s] condition barely meets these requirements, and is complicated by drug abuse capable of producing many of the more salient behavioural and subjective features of his condition. If it is accepted that he has the basic requirements for a Personality diagnosis, it can then be noted that he displays features of Antisocial Personality Disorder, Borderline Personality Disorder and Histrionic Personality Disorder, although all of these at a minimal level - features of Borderline Personality Disorder are the dominant traits, notably “impulsivity in at least two areas that are potentially self damaging (spending, sex, substance abuse, reckless driving), episodes of suicidal behaviour, mood instability, difficulty in controlling anger (frequent displays of temper, recurrent physical fights), and possible transient stress-related paranoid ideation (his partner alleges abnormal jealousy). On balance his life history suggests a Personality Disorder of “Cluster B” type according to DSM IV with predominantly borderline features complicated by regular abuse of cannabis and episodic abuse of other drugs. The condition may have abated with maturation and relative avoidance of drug use.
He said this about the mother;
She has a history of depressive symptoms. None of these appear to have approached a level justifying a diagnosis of Major Depression, and they probably represent Dysthymia with situational features and complicated by cannabis use. She has a condition that minimally meets criteria for a diagnosis of Personality Disorder with antisocial traits (“failure to conform to social norms with respect to lawful behaviours as indicated by repeatedly performing acts that are grounds for arrest”, “impulsivity”, and “reckless disregard for the safety of self or others”). She also displays borderline features and most markedly histrionic features induding “rapidly shifting and shallow expression of emotions", use of “physical appearance to draw attention to self”, “style of speech that is excessively impressionistic and lacking in detail”, moderate “selfdramatisation” and “suggestibility”.
In relation to them both he said:[19]
Both parents have a history and mental state consistent with minimal Personality Disorder complicated by use of cannabis and other non prescription drugs. Both have been diagnosed at times with Mood Disorders and have been treated with antidepressants. The Father is not currently taking such treatment, but the Mother remains on the antidepressant Duloxetine at the time of report.
[19] Psychiatrist’s report at page 17
In the final paragraph of his report, the psychiatrist said:
A diagnosis of personality abnormality does not necessarily imply the presence of an untreatable or unchanging condition. Aspects of the disorder may abate with maturation and experience, possibly accelerated by appropriate psychological management. If that occurs, it tends to become apparent in the late twenties and early thirties in woman, and a little later in men. In this case, the parents are in their mid thirties. Many of the more disturbing manifestations of the Father’s disorder were associated with drug and alcohol abuse, and are much less likely to be repeated if these are avoided.
The father
In general the father gave his evidence calmly and clearly, which was in contrast to some of the evidence given by the mother (about which I will comment below). However, calm and clear delivery of evidence does not necessarily mean that it is entirely truthful, and there were a number of indicators to me that at times the father was either making up his evidence as he went along or his evidence was fabricated or exaggerated. Examples are set out below.
Early in his cross examination by the mother’s counsel, the father was asked whether it was true that he had attempted suicide on three occasions. His answer was that he could only remember two occasions. He went on to say that one resulted in an admission to hospital and the other was when he was a teenager.[20] That is in stark contrast with what is recorded in his medical history at the [omitted] Hospital (“the [omitted Hospital]”). The psychiatrist reported that as follows:[21]
On 18 December, 2000 he attended Dept of Emergency Medicine, [omitted] Hospital, reported attempting to hang himself the previous night due to girlfriend problems and conflict with his father. He left before he was seen, and police were informed. On the 20th December at Dept of Emergency Medicine he reported attempting hanging twice that week and wanting to burn his car with suicidal intent. He was admitted to Ward 1 E, [omitted] Hospital, having been brought by police. He had been threatening to douse himself, his house and his cars with petrol, and two previous attempts at hanging were noted.
[20] Transcript, Day 2 at pages 54 and 55
[21] Psychiatrist’s report at page 12
Further, in his affidavit the father says that the last time he tried morphine was “in or around 2002”.[22] However, at page 13 of his report the psychiatrist said that on 29 November 2003 at Psychiatric Outpatients the father “reported suicidal thoughts “every evening” and various use of Diazepam, alcohol, cannabis and morphine “to stop suicidal ideas”.”[23] That shows that in very late 2003 the father was telling the [omitted Hospital] staff that he was still using morphine, which was a significant length of time after 2002.
[22] Paragraph 14
[23] My emphasis
That leads me to the significant discrepancy between the evidence of the father and the psychiatrist about what the father told the psychiatrist about his cannabis usage.
The father said in his affidavit that he had last used cannabis in 2006.[24] In his report to the Court, the psychiatrist said that both parties “admit to occasional use of this”,[25] clearly suggesting that both the father and the mother were continuing to use cannabis occasionally at the time of their interviews with him. That was put to the father by his own counsel, and he said:
When I was asked by [the psychiatrist] when I last used drugs, I answered to him, on, or thereabouts, five years ago. I then said that for a period of perhaps 12 months after that I occasionally smoked some marijuana, and that was the last time, so it wasn’t ongoing.
[24] Paragraph 14
[25] At the bottom of page 15
The psychiatrist was cross-examined about that by counsel for the father. He was asked whether he had taken notes at the time of his interviews and he replied that he had. When he was asked to read out what he had noted while talking to the father about his cannabis usage, his notes read as follows:[26]
…cannabis, makes me quiet. On and off from my teens. Off for three or four years. On again. Calm down. Takes it for anxiety. A joint on the toilet.
[26] Transcript, Day 1 at page 33
He was questioned further about that and said that during that phase of his interviews he had talked about recent events as well as past use and “the impression gained was that it was still occasionally, if available, intermittently”.[27]
[27] Transcript, Day 1 also at page 33
I find, particularly from the psychiatrist’s contemporaneous notes “On again” and “Takes it for anxiety”, which are both noted in the present tense, that it is more likely that the father had in fact made an admission in relation to continuing cannabis usage and, when he realised the significance of that, he then sought to put a different slant upon what he had told the psychiatrist during his interview. On the balance of probabilities (and mindful of sub-section 140(2) of the Evidence Act 1995),[28] I find that the father was still using cannabis occasionally as late as March 2010 when he was interviewed by the psychiatrist and tried to minimise the effect of that in his evidence.
[28] Also see Reifek v McElroy (1965) 112 CLR 517, Helton v Allen (1940) 63 CLR 691 and Briginshaw v Briginshaw (1938) 60 CLR 336
During his cross-examination by the ICL, the father was asked about an appointment with his doctor on 17 January 2008, where his doctor had noted “again depressed - off work, financial difficulties, can’t get motivated”, and whether those were the reasons that he had given to his doctor for seeing him on that occasion. The father responded:
And difficulties with this case, court, [the child], yes, as well. The proceedings.
In my view, it is of some significance that there were no extant proceedings at that time. The earlier proceedings had ended in May 2007 and no other proceedings were initiated until more than a year after he went to see his doctor in January 2008.
It is clear to me that the father wished to portray the mother as being partly to blame for his mental state (and his separation from his current partner) in early 2008. However, I note that his doctor did not record him saying anything about the mother or the child in either of his notes of 17 January or 5 March 2008.
The father was asked questions by the ICL about the length of his “brief separation”[29] from his partner 2008. His responses twice suggested that he and his partner had only been apart from each other for one night even though they had been living at different addresses. They were: [30]
[29] See paragraph 16 of his affidavit
[30] Transcript, Day 2 at page 105
[She] left my place and found another place and I actually don’t even think there may have only been one night that we were actually apart in that time. I either stayed at her house or she stayed at mine.
I think we only had one night apart.
and
The separation we said went for a week or 10 days or something but we pretty much spent all that time together. It’s just we were living together prior to that and weren’t living at the same address during that period.
However, his partner had said in her affidavit that their separation had “lasted about two months”,[31] but when she gave her oral evidence immediately after the father, she said that they had been physically apart for approximately five weeks and had only slept in the same room “on and off during that time”.
[31] See her affidavit at paragraph 18
Clearly, there were significant discrepancies in their evidence in relation to their separation, and while I find that both were deliberately trying to understate the length and significance of that period in their lives, the father was doing so more than his partner.
Irrespective of how long the separation from his partner was, it is clear that the father has attempted to minimise the significance of his psychological difficulties at that time. In paragraph 15 of his affidavit the father had said:
I have read the report prepared by [the psychiatrist] dated the 3rd of May 2010. I accept his findings except I tell the Court that I have not suffered any serious emotional disturbance since 2005.
However, he also said this in paragraph 16 of his affidavit in relation to his period of separation from his partner in early 2008:
At that time I saw my doctor and I asked to be given Lovan, an antidepressant. I was not directed to take it. I was directed to try it if I decided that it would help me. I had taken it before during my relationship with [the mother] and it seemed to work then. I took it for two weeks but found it unnecessary to continue as [my partner] and I worked through our problems. I also started working more which eased the financial burden that created tension between us.
The chronology annexed to the psychiatrist’s report reveals that the father saw his GP on 17 January 2008 who noted “again depressed - of work, financial difficulties, can’t get motivated. Presc. ‘Lovan’ 20 mg.” While I cannot say how long he took that Lovan, I note that the father saw his GP again on 5 March 2008 and told him that he was “depressed, unable to concentrate”. His GP gave him a certificate to excuse him from working for three months from that date. Those entries by his GP simply do not fit with what the father said in paragraph 16 of his affidavit as quoted above, so I conclude that in that paragraph the father was deliberately attempting to minimise the seriousness of his psychological difficulties in early 2008.
During his cross-examination the father was asked by the mother’s counsel whether his “on and off again” relationship with the mother was exclusive and his answer clearly indicated that he had not had other partners. However, that is in conflict with what he reported to the [omitted Hospital] on 9 December 2001. At that time he reported that his girlfriend (whom it must be assumed was the mother at the time) had “caught him with another woman” and “found he’d had had sex with another woman”. I make no judgement about him having relationships with other women during his on and off again relationship with mother, but mention it only because it shows that he was willing to tell staff at the [omitted Hospital] twice that he had been involved with another woman but in his evidence to this Court he maintained that he had not.
In my view, what I have referred to in the paragraphs above show that the father has deliberately tried to minimise matters that might be considered adverse to his case. It is therefore logical to infer that he would also exaggerate matters that might be considered adverse to the mother’s case.
The father’s partner
The father’s partner also gave her evidence clearly and calmly.
I have already referred above to the discrepancies between the evidence of the father and his partner about their separation in early 2008, so I do not need to repeat that.
The father’s partner was cross-examined about incidents that she had described under the headings “Woollies” and “At Home” in her affidavit (“the two incidents”). Both incidents were said by her to have taken place in early 2009 prior to her filing of an earlier affidavit for the interim hearing. When she was asked why neither incident had been mentioned in the earlier affidavit material, she said:
Because the process that led up to that hearing was very rushed. Our lawyer did an inadequate job and that is why we changed. [32]
[32] Transcript, Day 2 at page 123
I do not accept that explanation as being very convincing because:
·earlier in her evidence she had said that their lawyer at the time had been involved in the process of deciding whether to retain the child contrary to court orders;[33]
·the child was retained by the father on 11 April 2009;
·the Court file shows that the mother’s application was served upon the father on 16 April 2009;
·the hearing in relation to interim matters did not occur until three weeks later on 8 May 2009; and
·the Court file reveals that the father’s lawyer at the time filed no less than 7 affidavits, some of which were filed as late as 6 May 2009.
[33] Transcript, Day 2 at page 121
In response to further questioning, the father’s partner indicated that she had written things down immediately after the two incidents. She was then asked whether she had produced her notes to her lawyer and her response was:
No, I did not. Our computer malfunctioned and I lost quite a bit of information.[34]
[34] Transcript, Day 2 at page 124
That is a convenient excuse and, on balance, I find that I do not find that convincing either.
The father’s partner had earlier been questioned about the accuracy of a large number of exact quotes of conversations that she says took place during the two incidents. She maintained she could not be wrong about the details of the incidents themselves although she may be wrong about “Time, date, day of the week, perhaps”.
When questioned about the statements, she said:
They’re very vivid, my children were present.
She was then taken through a number of the exactly quoted conversations set out in her affidavit and she resolutely maintained that her recollections were correct. When she was asked whether she could be mistaken about the Woollies incident given that 18 months had elapsed, her definite answer was “No”.
Her consistent refusals to admit to even slight variations to her versions of those incidents concern me, simply because nobody has an infallible memory – especially in relation to the exact wording of conversations that took place 18 months earlier. In this regard, I am fortified in my view by psychological scientific research. “Guidelines on Memory and the Law”[35] contains the following statements:
Memories typically contain only a few highly specific details. Detailed recollection of the specific time and date of experiences is normally poor, as is highly specific information such as the precise recall of spoken conversations. [36] As a general rule, a high degree of very specific detail in a long-term memory is unusual.
and
Recall of a single or several highly specific details does not guarantee that a memory is accurate or even that it actually occurred. In general, the only way to establish the truth of a memory is with independent corroborating evidence.
[35] A 2008 report by the Research Board of the British Psychological Society
[36] My emphasis
I am satisfied from all the affidavit and oral evidence in relation to the two incidents that they were charged with negative emotions and it seems logical that that has affected the memories of all participants in those events. Research last year by Professor C Brainerd and Professor V Reyna of Cornell University in the United States found that emotion appears to distort memories, especially when the events have a negative emotional charge. They also found that while children are susceptible to false memories resulting from negative events, adults are even more susceptible.[37]
[37] Source >
I conclude that, while the father’s partner may not have been deliberately doing so, it is likely that some particulars of the two incidents are exaggerated in her mind.
I also note that she has included some details that she did not actually experience herself. For example, she said that during the At Home incident the mother had been pointing at her daughter’s window and laughing at her, but when she was challenged about that, she said “That that statement came from my daughter” and only then did she concede that she could not swear to the truth of it.[38]
[38] Transcript, Day 2 at page 127
However, it is to her credit that she admitted that her daughter would lie and get the child into trouble.[39]
[39] Transcript, Day 2 at page 118
Ms J
Ms J also gave her evidence clearly and calmly. However, I find that her evidence was highly contaminated by either exaggeration or failure to provide all the relevant facts.
For example, in her affidavit, Ms J said:
However, my biggest concern was when I would hear [the mother] screaming out for [the child] and I would see her running around the yard looking for him. On one occasion I found [the child] alone at the end of our street.
She was asked what she did and said that she had called out to him. When questioned further, she said:
I said to him “Where you going to …?,” and he laughed and he went “Shh.”
That additional detail, which was not provided in her affidavit, puts the particular incident in a very different light. I conclude from that additional evidence that the child saw his brief “escape” from the mother’s premises as a bit of an adventure and no blame can be attributed to the mother’s parenting. However, I also conclude that
Ms J would like me to attribute some blame.In her affidavit Ms J said “I provided [the mother] with bags of my own son’s clothes to assist her” and it appeared to me that she was attempting to attribute some parental fault to the mother, either for accepting that clothing or needing to accept it. I do not do so, because it is clear from Ms J’s evidence when cross-examined that the mother was in receipt of Centrelink benefits at that particular time and was receiving no Child Support payments from the father. While it may have been a virtue on the part of Ms J to offer unwanted second-hand clothing to the mother, it was hardly a fault or a sin on the part of the mother to accept it. Indeed, it could be seen as a virtue on the part of the mother for being frugal with scarce resources.
The mother’s counsel put to Ms J that she did not like the mother and was exaggerating. She denied that. However, when it was suggested to her that she did not have anything positive to say about the mother, she said:
I have nothing positive to say about her due to a threat that she made against my partner.[40]
[40] Transcript, Day 3 at page 155
Indeed, Ms J appeared quite happy to say that the mother did not have one redeeming feature.[41]
[41] Also at page 155
The “threat” to her partner is set out in the last paragraph of her affidavit as follows:
On a date I cannot recall exactly in early 2009. I was at the [E] market with my partner. [The mother] walked towards us and said to my partner “F wants to see you!”, smirked and moved on. This created concern with us because we took it to mean that “F” had been asked by [the mother] to hurt us. F has a local reputation that concerned us. We were so concerned we visited “F” who told us he had not been asked by [the mother] to harm us and knew nothing about it.
When she was cross-examined by the ICL, Ms J revealed that her partner had previously worked for “F” and after the “threat” she and her partner had gone straight to him to ask about it. I can only conclude from that evidence that neither she nor her partner felt particularly frightened of “F” or worried about the “threat”.
I note that Ms J appears to have “changed sides”. Her partner has become a friend of the father and she has become a friendly with the father’s partner. I do not know what caused her falling out with the mother, but I am certain that it occurred long before the “threat” referred to in the paragraphs above. However, I find that Ms J’s disliking of the mother is so intense that it colours her evidence to such an extent that it has not assisted me at all in what I have to decide.
I note also that Ms J admitted that she had recently suffered a stroke and said that her memory was “not overly great at the moment”. That admission simply adds to my concerns about her evidence.
The mother
In contrast to the father and his partner, the mother did not always give her evidence in a calm manner. Indeed, she was at times visibly distressed by the court process, especially during fairly aggressive cross-examination by counsel for the father. However, I do not believe that visible distress could be interpreted as a sign of dishonesty.
On occasions the mother made admissions that were clearly against her interests and that is usually a sign that a person is not being deliberately dishonest. For example, she was asked by her own counsel about a number of claims by the father that she had used insulting language to him in front of the child. She denied calling him “homo”, a “dickhead” or a “child molester”, or calling his partner a “fat slut” in front of the child. However, when she was asked by her counsel whether she had called the father a “drug-fucked dickhead”, she said:
In the past, quite possibly, but that’s before [the child] was even around. That’s when we lived together. Yes, I did say that.[42]
[42] Transcript, Day 4 at page 8
She was also asked by her own counsel whether she had ever heard the child say “Fuck off you stupid arsehole” to his older half-brother, and she said that she had not. Yet when she was asked in the very next question whether she had ever heard him say “I hate you, you fuckhead”, she conceded that she had heard him say that (although it was more recently than had been suggested by Ms J).
At one point when the mother was clearly upset by the cross-examination, counsel for the father asked her “Do you react like this in front of your son when you are upset?” She responded that she did not normally do so, so counsel followed that up by asking her if she did sometimes. Her candid reply was:
I did when he was stolen. I suppose I – yes, I over-reacted there, like any mother would.[43]
[43] Transcript, Day 4 at page 50
In relation to the use of cannabis in recent times, I formed the impression that the mother was being more honest than the father, in that she appeared more willing to make an admission against her own interests. She was asked whether she had used cannabis in 2010 and her answer was:
No. I don’t think I have at all. Maybe at a party that I went to, maybe, possibly, but it’s random.[44]
[44] Transcript, Day 4 at page 25
When she was asked whether she had an anger problem, the mother was candid enough to say:
I think I have a bit of a temper on me, yes. I have always been known for having a bit of a temper.[45]
[45] Transcript, Day 4 at page 53
Cross examination of the mother by the father’s counsel included reading to her a number of allegations made in written material in proceedings in other courts by people who were not witnesses in these proceedings. In the main, they consisted of statements made by those people in court applications that were apparently abandoned because the particular applicant or witness did not attend those other court proceedings. As a result, I prefer the evidence of the mother to that of unsubstantiated statements by persons not willing to give evidence.
While I accept that the mother was generally trying to be honest in her answers, what I said at paragraph 104 above about negative emotions distorting memories must also apply to her evidence. In this regard, much of the evidence given by the mother related to the time that the father retained the child contrary to existing orders and her emotions about that are still negative. For example, in late 2010 she was still using the emotive term “stolen” for the father’s actions in not returning the child to her after Easter in 2009.
Similarly, the mother has clearly used the strongly emotive term “despise” at times to describe her feelings for the father, mainly about the father having “stolen” the child. However, she also used that word to describe her son’s feelings for the daughter of the father’s partner (presumably because she lies and gets him into trouble).
It is because her memories of particular events are probably also distorted by emotion that I am unable to determine where the truth lies in relation to such incidents as “Woollies” and “At Home”. Like the psychologist, I suspect that the truth lies somewhere in the middle. However, I cannot see any real benefit for the child, the parents or the father’s partner in determining whose version is more correct. What is far more important is for all the adults to realise that neither incident was of benefit for the child, and that they should all avoid any similar incidents in the future.
The mother’s witnesses
In general, all the mother’s witnesses[46] gave their evidence calmly and clearly. As friends of the mother, they were clearly not impartial witnesses, but I am satisfied that they all gave what they believed to be truthful evidence.
[46] Ms W, Mr L, Ms L and Ms T
I must admit to being disappointed that the father had obviously instructed his counsel to pursue a rather “negative campaign” in relation to the mother’s witnesses. I say this because they were all asked by the father’s counsel to detail negative aspects of the mother’s character.[47] While I appreciate that hearings in this Court are still conducted on an adversarial basis, I do not believe that simply concentrating on negative aspects of a parent’s character is of much use to the Court in its task of determining what is in the child’s best interests.
[47] Transcripts – Day 5 at page 156 and Day 6 at pages 8 and 11 and twice at page 22
Ms R
Ms R gave her evidence calmly and clearly. She was an impressive witness
The Principal
The Principal also gave her evidence calmly and clearly.
It is clear that there has been a significant personality clash between her and the mother. In her affidavit, she says the following:[48]
Unfortunately currently there is no workable relationship between Ms Nott and I (sic). I bear no ill feeling towards [her] but unfortunately she appears to bear ill feeling towards me. In the first week of school this year I saw [the mother] outside the classroom at school. I said “hello …” to which [she] replied “I am not talking to you bitch”.
[48] At paragraph 8
As I have mentioned above, the mother has reported the Principal to the State education authority (by whom she is employed), so that could hardly have improved their relationship. Even if it is true that she bears no ill feeling towards the mother, it would be very difficult for her to be totally impartial in any dealings with the mother.
It appears to me that, at least in relation to keeping the parents informed in relation to the child’s non-attendance at school, the Principal has not been entirely impartial. In her affidavit the Principal said that she had telephoned the father in June 2009 when the child was not attending the [G] School but was attending the [E] school. She said: [49]
I did so as a courtesy so that [the father] would be aware that his son was no longer at the [G] School.
[49] At Paragraph 7
However, the Principal does not appear to have paid the mother the same courtesy a little earlier in 2009 when she had an opportunity to do so. As I read the child’s school attendance records for 2009,[50] the child was kept out of school for three full weeks after the father retained him contrary to the orders of 29 May 2007. However, it is clear from the evidence of Ms T that, when she and the mother attended the school to talk to the Principal after Easter 2009, the Principal had not previously telephoned the mother as a courtesy to make her aware that her son was no longer at the school. It is therefore not surprising that the mother was of the view that the Principal had been “showing favouritism”.[51]
[50] Attached to the affidavit of Ms V
[51] Transcript, Day 5 at page 126
I note that the Principal says that, while she bears no ill feeling towards the mother, unfortunately the mother appears to bear ill feeling towards her. That statement appears to me to suggest that the Principal accepts no responsibility for their lack of a “workable relationship”. Unfortunately, she was not cross-examined about that. However, when the mother was cross-examined about who was responsible for the “angry cycle” between her and the Principal, she was able to say “I believe that it’s the pair of us”. When she was questioned further, she said “I’m defensive, and she’s defensive”. [52]
[52] Transcript, Day 4 at page 90
I have noted above that the psychologist appears to have been influenced by the Principal’s assessment of the mother. In his report he said the following:[53]
The Principal said that [the child’s] current class teacher has formed a view that [the mother] is pressuring [the child] to resist developing his relationship and spending time with his father.
[53] At paragraph 45
That is of course the psychologist’s version of the Principal’s version of a view that may or may not have been formed by the child’s teacher in 2009 (about something that the mother denied.)[54] However, it is clear from Ms V’s affidavit that she was his teacher in 2009 and I note that in that affidavit she does not say that she had formed that view. I note also that Ms V was not required for cross-examination and the Principal was not asked any questions about that statement in the psychologist’s report.
[54] Transcript, Day 4 at page 92
As can be seen from the quotation set out at paragraph 133 above, the Principal says that in the first week of school this year she greeted the mother and she replied “I am not talking to you bitch.” When she was asked about that, the mother said that she said to the Principal “Do not ever speak to me again” [55] but she repeatedly denied calling her a bitch.
[55] Transcript, Day 4 at page 23
When she was cross-examined, the Principal conceded that it was possible that the mother had said “Do not ever speak to me again” but was quite firm in her recollection that she had been called a bitch because “that is a fairly uncommon event.” [56]
[56] Transcript, Day 7 at page 51
I do not propose making any finding upon whether the mother called the Principal a bitch or not. That is because any such finding will not help heal the rift between the mother and the Principal, nor will it assist me to decide what is in the child’s best interests.
Section 60CC factors
It is clear from the joint judgment of Bryant CJ and Finn J in Taylor & Barker[57] that it is not necessary to address the considerations strictly in the order set out in section 60CC.[58]
The benefit to the child of having meaningful relationships with both parents
[57] (2007) FLC 93-345 at paragraphs 62 and 63
[58] Also see Moose & Moose (2008) FLC 93-375
The psychologist states in his report that the child’s primary attachment relationship is with his mother, but that he also demonstrated a confident relationship with his father. I accept that to be the case and it is clear that meaningful relationships with both parents must be maintained by the orders that I make, irrespective of where he is to live predominantly.
In my view, the orders being sought by the parties are very similar, in that they each want the child to live predominantly in his/her household and spend time in the household of the other. They differ on the detail, but they each appear to want the child to spend time with the other as follows:
·during school terms for three nights per fortnight;
·for approximately half of the school holidays; and
·on special occasions.
The need to protect the child from harm from abuse, neglect or family violence
There seems to have been general agreement between counsel that the violence between the parties was “historical” and that there was no need for the child to be protected from any such violence.
It is certainly true that the parties’ relationship was violent at times. While the mother conceded that she had broken the father’s eye socket, which required rectification by a surgical operation at the [omitted Hospital], she claimed that it was in self defence. In my view, I do not need to determine who was more aggressive than the other in that particular instance, because I conclude that it was just one of the results of a volatile relationship that involved both parties.
I was disappointed that the father appeared to hide behind a poor recollection of events when he was asked about his part in their violence. However, if it is true that he does not recall his involvement, it is probably a consequence of his abuse of illicit drugs and alcohol during the volatile relationship with the mother.
Ms J appeared to be suggesting neglect on the part of the mother, but I have made findings about the quality of her evidence above.
The child’s views
The child is now seven years old, but he was six years old when he was seen by the psychologist, who reported as follows:
41. [The child] was engaged immediately using The Bear Cards, a set of 48 cards depicting a range of bears showing different emotions. His (sic) captured [the child’s] interest and he had no difficulty when asked to choose cards to represent himself and significant others. He chose a “happy bear” and a “messing around having fun bear” to represent himself. He chose a “sad bear” to represent his father, and a “scared bear” to represent his mother. He then adopted a pattern of choosing all angry bears to represent his teacher, the stepmother, and his stepsister. [The child] was really not able to explain why he made these selections.
42. While some six year old children who are confident and outgoing are able to talk extensively about their family circumstances, [the child] presented as a sensitive and shy boy who did not readily express his views. He related only few details about school, and gave short answers to questions about life at Mum's place and life at Dad's place. He volunteered no strong negative comments about either home, and indicated he has fun at both places.
43. Perhaps the most useful insight into [the child’s] experience was obtained using 14 Bear Cards to represent the time he currently spends with his mother and father. In this way [the child] was able to indicate a preference to spend less time with his father and more time with his mother. Asked why he would like to spend more time with his mother, [the child] said “Because I like Mum better. I love her more.” Asked again if there were any things that were difficult at Dad's place, [the child] said no. He then busied himself building a pyramid with the cards and did not respond to several open ended questions asked by the Writer.
It is clear from the parents’ evidence that they both accept that the child is a sensitive boy.
The child’s relationships with the parents and other people
When reporting upon the nature of the relationship of the child with each of his parents, the psychologist said:
[The child’s] primary attachment relationship is with his mother but he also demonstrated a confident relationship with his father and stepmother.
As I said above, I accept that to be the case.
I have no reason to believe that the child’s relationship with [A] is anything other than a normal half-sibling relationship, taking into account that there is a significant age disparity between them. In addition, [A] is now an adult and appears to only reside with the mother “on and off” as it suits him.
Similarly, I have no reason to believe that the child’s relationship with his other half-brother [Y] is anything other than a normal half- brotherly relationship.
Although the child appears to get upset when [Z] tells lies about him and gets him into trouble, I am sure that he does not “despise” her and I agree with the father’s partner that such is “normal for a blended family”.[59]
The willingness and ability of the parents to facilitate and encourage the child’s relationships with the other parent
[59] Transcript, Day 2 at page 118
In his report, the psychologist said the following about the mother in relation to this factor:[60]
The mother unambiguously expressed a strong reluctance to facilitating a close or continuing relationship between [the child] and the father. She made it clear she wanted [the child] to spend less time with [the father] and said directly that his home is with her.
[60] At paragraph 62
I do not agree with the psychologist’s interpretation that the mother’s statements that she “wanted the child to spend less time with the father” and that “his home is with her” necessarily mean that that she “unambiguously expressed a strong reluctance” to facilitate a close and continuing relationship between the child and his father. Those statements could simply mean that he did want to spend less time with his father and that the mother considers her home to be the more appropriate one for him to live in.
I have already noted that the psychologist reported that using the Bear Cards the child “was able to indicate a preference to spend less time with his father and more time with his mother”.
The psychologist was asked by counsel for the mother what he meant by his statement that the mother had “unambiguously expressed a strong reluctance” to facilitate a close or continuing relationship between the father and the child, and after some clarifying further questions, he responded:[61]
So she expressed, throughout the interview that the father wasn’t a fit and proper person to be providing care, and that [the child] didn’t want to spend time with him, that he often struggled and resisted going to school if he knew that there was going to be contact with the father afterwards, and all of her views were very negative towards him. And all of those indicators … suggested to me that she would be very reluctant to promote a close and continuing relationship with the father.
[61] Transcript, Day 1 at page 15
In my view there is a significant difference in meaning between “unambiguously expressed” and “all of those indicators suggested”. To my mind “unambiguous” means “not having a double meaning” and “expressed” means “put into words”.
Nowhere in the evidence did the mother actually express a strong reluctance to facilitate a close and continuing relationship between the child and his father. However, the psychologist was questioned further by counsel for the mother about what the mother had said and he responded:
Throughout my interview she pointed to many, many failings on the father’s part.
and
Such as his propensity towards violence, his emotional instability, his drug use, things like that.
The mother’s counsel then suggested that those sorts of things were “fairly reasonable things for a mother to point to” and the psychologist responded:
If, indeed, they were true, that’s right, they would be. [62]
[62] Transcript, Day 1 also at page 15
The simple facts are that violence, significant emotional instability and drug use are all part of the father’s history, and I have found that the father deliberately tried to minimise those aspects of his past. Unfortunately, the psychologist was not aware of all of the father’s history.
Having said that, however, I do have some concerns that the mother has not yet resolved her feelings about the father’s unilateral retention of the child at Easter in 2009. Although I am not really sure that she is yet able to forgive him for what he did, she does need to put those events behind her and move on, even if it is only for the sake of her child.
However, I do note the following with some degree of optimism in relation to the mother’s willingness to facilitate the child’s relationship with the father:
·the mother conceded that she “over-reacted” when the child was retained by the father,[63] so that could signal a degree of insight on her part;
·the mother gave evidence that it was she who asked the father for a photograph of himself to place beside the child’s bed,[64] and she was not challenged about that;
·in his own material, the father states that there has been at least one occasion when the mother wanted him to spend more time with the child;[65]
·there has not been any application suggesting that the mother has contravened any order providing for the child’s time with his father; and
·when she was cross-examined she said: “I believe that [the child] needs to see his father for … a substantial amount of time in order to maintain a good relationship with his father.”[66]
[63] Transcript, Day 4 at page 50
[64] Transcript, Day 4 at page 52
[65] See the father’s affidavit at paragraph 16
[66] Transcript, Day 4 at page 67
In his report, the psychologist said the following about the father:[67]
The father appeared willing to facilitate a continuing relationship almost to the extent of appearing naive to the likelihood of further conflict. In an unexpected way, [his partner] gave some insight into the father’s likely willingness to promote a continuing relationship with the mother in her remark that the father still tries to appease the mother by accommodating her demands.
[67] At paragraph 63
I do not equate an appeasement by accommodating demands with a willingness to facilitate a continuing relationship. Frankly, I would want to see a more positive attitude than that, and that was lacking in the evidence before me.
In that regard, I was somewhat disappointed by the “negative campaign” adopted by the father in relation to the proceedings. I have already referred to this in relation to the cross-examination of the mother’s witnesses, but it also extended to the cross-examination of the mother herself. For example, in the very first question in cross-examination by the father’s counsel she was asked about an infringement of traffic regulations approximately 4 years prior to the child’s birth.[68] That question had little to do with this child’s welfare and can have only been designed to unsettle the mother from the start. I note also that, when the father’s counsel was given an opportunity to have both parties’ records of prior convictions put in as exhibits, he said that he did not want them put in.[69]
[68] Transcript, Day 4 at page 31
[69] Transcript, Day 7 at page 76
When I consider the totality of the evidence given by the father (i.e. his affidavit and his oral evidence), I cannot really find anything that he says that is positive about the mother. Unfortunately, that does not provide me with much confidence that the father has an ability to facilitate and encourage the child’s relationships with the mother in the future.
The practical difficulty and expense of the child spending time with and/or communicating with a parent
Although the parties live in different towns, this consideration is not of concern to me.
The capacity of the parents to provide for the child’s needs
My consideration of this factor causes me concern about both parents.
As mentioned above the psychiatrist said that both parents have a history and mental state consistent with minimal Personality Disorder. He went on to say:
In both cases the disorder does affect the capacity of the parents to provide adequately for the needs of the child …. Such impairment of capacity is not continuous but episodic; in both cases very much dependant on the emotional circumstances of the parent at a given time. Both parents are able to provide adequately for the physical needs of the child, but may have difficulty in meeting the emotional needs of the child at times, due to pressing concerns about their own needs, and emotional unavailability during episodes of cannabis use.[70]
[70] The psychiatrist’s report at page 17
I accept that opinion to be correct. However, with that in mind, I have concerns about the father’s attitude to his own mental state. As stated at paragraph 91 above, the father minimised the significance of his psychological difficulties in 2008. I am also concerned that he may still be trying to minimise his own need for psychological assistance. When he was cross-examined by the ICL about whether he had taken any anti-depressant medication after 4 August 2009, he said: “No, apart from some Valium”. He then revealed that he had been prescribed Valium for “muscle relaxing” in 2010 because he had woken up in the middle of the night with severe muscle problems in his neck.[71] My concern stems from the fact that Valium (Diazepam) can be prescribed “for treatment of anxiety, a state of inner fear or gnawing worry accompanied by muscle tension, sleeping difficulties ….”[72] Unfortunately, we do not know exactly why the father’s muscles needed relaxing by Diazepam in 2010 and whether or not his GP thought that it had a psychological cause. The evidence about his need for muscle relaxing was given by the father after the psychologist and the psychiatrist had given their evidence.
[71] Transcript, Day 2 at pages 108 and 109
[72] Source: The Australian Drug Guide by Dr Jonathan Upfal. My emphasis.
I have expressed my concerns above about the father’s negative attitude to the mother and I have no doubt that it has been communicated to the child. Although he conceded that he may have said to the child that his mother was mad when she was upset, he said that he had meant that “as in angry not crazy”.[73] However, that answer followed questioning where he conceded that he had concerns about the mother’s mental state and that he thought that the psychologist’s “outcome was true”. The logical inference from that is that he prefers the psychologist’s “diagnosis” in relation to the mother’s mental state to that of the psychiatrist. However, it will be apparent from what I have said above that I consider the psychologist’s report to be partially flawed because he was provided with insufficient and/or inappropriate information.
[73] Transcript, Day 2 at page 73
Even if the father has not stated his concerns to the child direct, I have no doubt that the father’s views about the mother being mentally unstable have been discussed in the father’s household within earshot of the child. That is why Mr L has heard the child say that his father says that the mother is crazy[74] and why Ms T says similar things.[75]
[74] At paragraph 18 of his affidavit
[75] At paragraph 22 of her affidavit
However, I have the same concern about the mother. In this regard, I am sure that in unguarded moments, she says things about the father that are overheard by the child. For example, Mr L admitted that the mother “shows a certain amount of anger toward [the father], which is only natural”[76] and that the mother’s language can be quite strong when discussing with Ms T her relationship with the child and the father. When the ICL asked him whether the child would hear it, he said somewhat naively:
[The child] is not taking any notice whatsoever. He’s too busy playing games. So I usually distract him playing chess and other card games, and things of that nature. [77]
[76] Transcript, Day 6 at page 7
[77] Transcript, Day 6 at page 8
I have no doubt that if Mr L can hear it, so can the child. That is especially so if they are sitting together playing board games.
The psychologist clearly observed an instance when the mother was not able to shield the child from her strong feelings about the father. In his report he said:
Indeed, toward the conclusion of this assessment [the mother] did not shield [the child] from the distress and anger she expressed to the Writer and the Writer was required to conclude the discussion to reduce the stress for [the child].[78]
[78] At paragraph 59
When he was questioned about that by counsel for the father, the psychologist said this:
[The child] was with us, right next to where the mother and I were standing, I believe, and she wished to continue to express her alarm and concern, and to convey her thoughts and emotions about these matters in a way that I became uncomfortable for [the child’s] presence at that time. [79]
[79] Transcript, Day 1 at page 8
I am of the view that both parents are unable at times to refrain from discussing their feelings about the other parent and about these proceedings in the presence of the child. Put bluntly, they are putting their own needs above the needs of the child by not shielding him from their negative views and negative emotions about his other parent.
Both parents have the capacity to provide the child’s physical needs but neither seems to fully understand his emotional need to be uninvolved in his parents’ dispute over him.
The attitudes of the parents to the child and to parental responsibilities
Consideration of this factor also gives me concerns about both parents.
The parties disagree about how much Child Support the father has paid over the years. I do not need to determine exactly how much he has paid, because even on the father’s version it is very little when compared with what it costs to fully support a child.
The father has demonstrated a very poor attitude to his responsibility to financially support his child. At the time of the hearing, he had not paid the mother any child support since he had given up employment in the [omitted] industry in 2007. This means that for a long time the mother has had to support the child on Centrelink benefits alone even though the father has at times had two jobs,[80] and he and his partner have been able to rent a very large home. I simply do not accept his excuse that the Child Support Agency told him that it was the mother’s responsibility to make an application. Even if that were true, he could still have made some voluntary contribution towards the expense of raising his child.
[80] [occupations omitted]
Ironically, the mother’s financial position has also been worsened by the father’s insistence that the child not be enrolled at the [E] School. On at least four occasions in her oral evidence the mother said that it costs her $100 per week to transport the child to and from school. That expense seems high but she was not challenged about it. A return trip between her home and the school is approximately 35 kilometres.[81] If she does that twice a day Monday to Friday, the total is approximately 350 kilometres for the week, resulting in significant expenditure on petrol alone that a person surviving on Centrelink benefits can ill afford.
[81] Source: Google maps
It is perfectly clear from the [G] school records that the child’s school attendance has been appalling. The Principal informed the psychologist in October 2009 that the child “probably attends School 75% of the time and hardly ever attends a full week”.[82] Although that is a generalisation, the attendance records for 2009 attached to Ms V’s affidavit do show a significant number of absences. However, those absences included the period immediately after Easter when the father kept the child away from school for a substantial period and some significant periods noted as “Explained (Illness/Incapacity)”.
[82] Paragraph 45 of the psychologist’s report
As I understand the mother’s “excuse” for much of her inability at times to get the child to school on time or at all, it is because:
·she and the child live in [E];
·it is at the father’s insistence that the child attends school in Launceston;
·it costs her $100 per week to transport the child to and from school;
·she is on Centrelink benefits and can ill afford that; and
·she has an unreliable car.
Annexure “A” to the Principal’s affidavit shows that between 12 February 2010 and 7 May 2010 the mother advised the school on ten occasions that she was having difficulty in relation to transport when explaining the child’s absences from school. As she appears to have used a different excuse on only three other occasions, the records of the school appear to be consistent with the mother’s evidence.
I note also that the Principal acknowledged when she gave evidence on 22 September 2010 that the child’s attendance at school had been “significantly better” since May 2010.[83]
[83] Transcript, Day 7 at page 48
During cross-examination by counsel for the father, the mother acknowledged her obligation to have the child attend school “100 per cent of the time”, but when it was put to her that she was unable to meet that obligation, she responded:
Well, if [the father] had let me put him into the school across the road from my place, it wouldn’t be a problem. He would be there 100 per cent of the time unless he was unwell.[84]
[84] Transcript, Day 4 at page 87
That was a reference to the fact that the [E] primary school is quite literally across the road from her home,[85] and in my view it is rather hard to argue with that as a concept if a large majority of the child’s absences from school have resulted from transport difficulties.
[85] See Google maps
I am satisfied that the large majority of the child’s absences from school have resulted from the mother’s difficulties with transport, and I will refer to the child’s schooling further below.
Any family violence and family violence orders
I have referred to the question of violence above and do not need to refer to it further here.
While family violence orders were in existence in the past (and the father spent a considerable period in custody as a result of breaches to which he pleaded guilty), there are no such orders in existence at the moment.
The likely effect of any change in the child’s circumstances
When he was cross-examined by counsel for the mother, the psychologist said this about the child’s attachment to his mother:[86]
I think that [the child] has his primary attachment relationship with his mother. That may still be an insecure attachment relationship, that was the impression that I formed, in fact an insecure avoidant attachment relationship. On the one hand, that will make him, you know, still very close to his mother, but also more sensitive to any separation from her, than a child who is securely attached. A child who is securely attached could move more freely, more confidently from one parent to another. This is a child who seems to me to be more insecurely attached, and so he would find separation from his mother actually very distressing.
[86] Transcript, Day 1 at page 24
The ICL suggested to the psychologist that “it would be a monumental change … for [the child] to be living with his father primarily” and to that he responded:
Yes, it would. Monumental is not an understatement. Sometimes necessary, but only in very dire circumstances.[87]
[87] Transcript, Day 1 at page 30
The ICL then said that he did not get the impression that the psychologist had been suggesting that such a situation existed in this matter (i.e. that the circumstances were very dire). The psychologist responded:[88]
That would be correct. I’m hoping that the parties can perhaps maintain some level of shared parenting and that [the child’s] primary place of residence remains with his mother. However, if it came to a decision as to who is maybe better to manage – provide his long-term needs, my impression was that the father probably had better skills to be able to do that.
[88] Also at page 30
However, it is my view that the psychologist’s opinion as expressed in the last sentence of that quotation is based upon a lack of proper information on one hand and the provision of inappropriate information on the other. Consequently, I do not accept it, and I would be very concerned about the effect of a monumental change in the child’s life.
Whether it is preferable to make an order that is least likely to lead to further litigation in relation to the child
In his report, the psychiatrist said:[89]
The management of the Mother's condition by her general practitioner, using a well tolerated and effective antidepressant, is satisfactory. Continued counselling by her psychologist [named] is recommended. The Father has had counselling relating to his problems in the past. Both parents would benefit from renewed parent effectiveness training. Both parents are likely to comply with recommended treatment, but their ongoing stability as carers for [the child] would require some regular re-assessment in the future.
[89] Psychiatrist’s report at page 18
The psychiatrist’s use of the words “regular re-assessment in the future” suggests that perhaps interim orders should be made. However, he went on to add:
This could be maintained by keeping an open file with Child Protection Service in liaison with [the child’s] school.
On the evidence available to me, I do not consider that it is appropriate to keep a Child Protection file open (which I do not have power to do, in any event), nor do I consider it appropriate to make interim orders. I say this in the light of what the psychiatrist said in the next paragraph of his report. He said:
The level of conflict between the parents is likely to abate considerably when final orders concerning residence and contact between the parents and the children have been made.
Should the parties share parental responsibility for the child?
As mentioned above, section 61DA of the Act provides a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence. In this case, the parties have been involved in family violence so that presumption does not apply. However, it is clearly a very significant step to deprive a parent of responsibility for his or her child.
The ICL and counsel for the mother both sought to persuade me that I should order that the parties have equal shared parental responsibility for the child. Counsel for the father sought to persuade me that I should award sole parental responsibility to his client.
I am grateful to the ICL for referring me to Lansa & Clovelly[90] and Petit & Jacaruso. [91]
[90] (2010) FamCA 80
[91] (2010) FMCAfam 450
An order for equal shared parental responsibility will require the parents to consult with each other in relation to long-term issues, such as education, religion, the child’s name and medical matters. Certainly, the parents’ history would suggest that their ability to do so may be problematic, but I take some encouragement from the mother’s stated willingness to communicate with the father, even if he appears to be a little reluctant. However, I intend to order that the both parties attend parenting courses, so that may assist them with their communication difficulties. The simple fact is that these parties need to communicate in the interests of their child. Initially, that should be by text message and in a communication book.
After considering all the evidence, I will order that the parties share parental responsibility equally, subject only to an order that will allow the mother to enrol that child at the [E] School (about which I will say more below).
With whom should the child live?
Naturally, answering this question will also involve a consideration of the time the child should spend with the other parent.
In my view, it is very clear that the child should continue to live with his mother, because the “dire” circumstances necessary to bring about a “monumental change” in his life do not exist.
I agree with the psychologist that the child’s time with his father should not be reduced, and I am pleased to see that the mother changed her mind about that part way through the hearing. That may have been the result of legal advice about a probable outcome, but it was a step in the right direction.
Where should the child go to school?
I conclude that there is an overwhelming case for the child to be enrolled at the school across the road from the mother’s home. His current school has significant disadvantages for the child, including:
·transport difficulties (and the resulting significant cost to the mother, who can ill afford it);
·the substantial lack of any working relationship between the principal of his current school and the mother; and
·the lack of other children from [E] in the child’s class, which must create difficulties in relation to his socialisation with school friends outside school hours.
The mother will need to confer with the principals of both schools about when the change should occur. However, I note that the Easter school break is almost upon us, and that may be a suitable time for such a move. Consequently, the mother will need to confer with the principals quickly.
Should the parents be ordered to have psychotherapy?
The psychologist and the psychiatrist were in agreement that both parties should have some psychotherapy.
The father said he would attend if it was ordered but he would probably not attend as a volunteer. When he was questioned further by the ICL, he made it clear that he did not think that it is necessary. [92] His partner also told the ICL that she does not consider it to be necessary.[93]
[92] Transcript, Day 2 at page 110
[93] Transcript, Day 2 at page 139
That clearly suggests to me that both the father and his partner would be likely to have negative attitudes to any psychological counselling. In those circumstances, I feel that any real benefit from psychological counselling would be unlikely.
The mother, however, could see the benefits of psychological counselling, but she was concerned about the possible expense.[94] Given that she was in receipt of Centrelink benefits and receiving no Child Support from the father, that is quite understandable.
[94] Transcript, Day 5 at page 146
Consequently, it is for different reasons that I will not order that either party attend psychological counselling. However, I note that the mother has a good relationship with a psychological counsellor that she has seen in the past in relation to a motor vehicle accident, so I will simply suggest that she may wish to explore the possibility of a further referral from her GP.
As stated above, I will order that both parties attend a parenting course. I will also be ordering that their attendance is to be arranged and monitored by the ICL. His commission will be extended to enable him to do that, and I will grant him liberty to apply in relation to that.
Should the child’s name be changed?
The father is seeking an order for a change of the child’s surname to a hyphenated one combining the surnames of each parent.
In Chapman and Palmer,[95] the Full Court of the Family Court of Australia stated that the general principle appeared to be that a Court should not intervene to prevent a residential parent from changing the name of a child unless it is satisfied that “the change was made without the consent of the other parent and that it does not promote the welfare of the child.”
[95] (1978) FLC 90-510
The Full Court set out the factors to which the Court should have regard in determining whether or not there should be a change in the child’s surname. They are:
a)the welfare of the child is the paramount consideration;
b)the short and long-term effects of any change in the child’s surname;
c)any embarrassment likely to be suffered by the child if (the child’s) name is different from that of the parent with whom the child lives;
d)any confusion of identity which may arise for the child if his or her name is changed or not changed;
e)the effect which any change of surname may have on the relationship between the child and the parent whose name the child bore during the marriage (or during the period of cohabitation); and
f)the effect of frequent or random changes of name.
Connor J took into account the matters set out in Chapman and Palmer in Beach and Stemmler,[96] but added other matters that may also be relevant, such as:
a)the advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now;
b)the contact that the husband (or father) has had and is likely to have in the future with the children;
c)the degree of identification that the children now have with their father; and
d)the desire of the father that the original name be restored.
[96] (1979) FLC 90-692
In Mahony and McKenzie,[97] Warnick J attached no significance to the surname used to register the child’s birth, and held that a number of benefits could arise from the use of a hyphenated surname, made up of the surnames of each parent. One such advantage was that the use of the name accorded with the reality of life. The child in that case had an ongoing relationship with both his parents, even though they did not live together.
[97] (1993) FLC 92-408
While there may have been some academic differences of opinion in the past about whether or not the child’s best interests are “paramount” in deciding whether to issue an injunction to prevent changes to a child’s name,[98] it is clear that changing a child’s name is an “aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”,[99] so an order in relation to a child’s name is a parenting order for the purposes of Part VII of the Act. Consequently, the paramountcy principle must apply.
[98] See Flanagan and Handcock (2001) FLC 93-074 and Handcock and Flanagan (2002) FLC 93-102.
[99] Sec. 64B(2)(i)
However, all that may be somewhat academic in this matter also, because the father has provided absolutely no evidence to support a change of name. His counsel attempted to rectify the dearth of evidence in his cross examination of the mother. He asked her whether she could see “a positive symbolic benefit in having a hyphenated surname” and she replied:
Yes. I can see that but I’m also thinking about [the child] having to write down two surnames his whole life throughout high school and primary school. I don’t think that that makes any kind of sense.[100]
[100] Transcript, Day 5 at page 102
Although counsel for the father appeared to suggest in his next question to the mother that the change of surname sought by the father related only to official records and not daily use, it is clear to me that that would not be the case. I have absolutely no doubt that, if his name was to be changed for official record purposes, the father would insist that he use that official name on a daily basis at school and elsewhere.
There is no evidence at all of how a name change will affect the child and without any evidence of a positive nature supporting a change, I find that I am in agreement with the sentiment expressed by the mother in the quotation set out two paragraphs above. Consequently, I will not make any order in relation to the child’s name.
Conclusions
As mentioned above, sub-section 65DAA(1) provides that if I order that the parents are to have equal shared parental responsibility, I must consider whether the child spending equal time with each of the parents would be in the best interests of the child whether it is reasonably practicable.
Neither party is seeking orders for equal time. Notwithstanding that, I do not consider equal time to be in the best interests of the child. I am also mindful that some research suggests that it may be adverse to a young child’s best interests to order equal time in high conflict cases.[101]
[101] For example see McIntosh and Chisholm – “Shared Care in Conflicted Separation: A Cautionary Tale from Current Research” (printed in Australian Family Lawyer, January 2008)
Further, with the decision in MRR v GR in mind, I consider that it would not really be practicable with the parents living in different towns and their current poor communication skills.
Some years before the enactment of section 65DAA, Federal Magistrate Ryan (as she then was) gave a very useful summary of the law as it then was in relation to equal time in H and H.[102] She said:
[102] (2003) FLC 93-168
47. Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
· The parties' capacity to communicate on matters relevant to the child's welfare.
· The physical proximity of the two households.
· Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
· The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
· Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
· Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
· Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
· Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
· Whether or not the parties respect the other party as a parent.
· The child's wishes and the factors that influence those wishes.
· Where siblings live.
· The child's age.
48. This list is not exhaustive. It does no more than set out some usual elements that a court will consider to the extent that each may be relevant.
It seems to me that many of the matters listed there by her Honour relate directly to the reasonable practicability of equal time and, notwithstanding the changes to the law in 2006, they are still relevant considerations.
Putting it simply, as things currently stand I have no confidence at all that the parties could make equal time work so it is not a reasonable practicability.
With some minor variations, I shall make orders that are essentially in accordance with what the mother is seeking.
I certify that the preceding two hundred and thirty-four (234) paragraphs are a true copy of the reasons for judgment of Roberts FM
Date: 8/4/11
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