Haywood and Haywood
[2017] FCCA 1017
•23 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAYWOOD & HAYWOOD | [2017] FCCA 1017 |
| Catchwords: FAMILY LAW – Parenting – where each parent seeks sole parental responsibility – where the presumption of equal shared parental responsibility is rebutted due to one parent’s attitude to communication and consultation – where serious concerns arise as to the capacity of one parent to recognise the children’s right to a meaningful relationship with the other parent – where the family report writer holds grave concerns as to that parent’s capacity to ever appreciate the need to foster a relationship with the other parent or to appreciate the harm cause to the children as a result of that attitude – where circumstances exist giving rise to the need to significantly change the current position with regard to decisions to be made in relation to the long term care, welfare and development of the children and with whom the children primarily live. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1), (2) & (3), 60CA, 60CC(2), (2A) & (3), 61C, 61D(1) & (2), 61DA, 65DAA, 65DAC, 65DAE |
| Cases cited: Lansa & Clovelly [2010] FamCA 80 Heath & Hemming (No.2) [2011] FamCA 749 AIF v AMS (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Chappell & Chappell (2008) FLC 93-382 Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010) Sigley & Evor (2011) 44 Fam LR 439 MRR v GR (2010) 240 CLR 461 |
| Applicant: | MS HAYWOOD |
| Respondent: | MR HAYWOOD |
| File Number: | TVC 16 of 2013 |
| Judgment of: | Judge Coker |
| Hearing date: | 15 March 2017 |
| Date of Last Submission: | 15 March 2017 |
| Delivered at: | Townsville |
| Delivered on: | 23 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mayes |
| Solicitors for the Applicant: | Lee Turnbull & Co |
| Respondent: | In person |
ORDERS
That all previous orders be discharged.
That the mother have sole parental responsibility for major long term issues of the children, X born (omitted) 2010 and Y born (omitted) 2011. Prior to making a decision in the exercise of her sole parental responsibility, the mother will notify the father in writing of the decision that is to be made and she will consider any views of the father before making the decision. Once the mother makes a decision in the exercise of her sole parental responsibility, the mother will notify the father in writing of the decision that is made.
Notwithstanding Order 2 herein:
(a)The mother shall be responsible for the daily care, welfare and development of the children whilst they are living with or spending time with her; and
(b)The father shall be responsible for the daily care, welfare and development of the children whilst they are living with or spending time with him.
That the children live with the mother.
That the children spend time with the father at all reasonable times as agreed between the parties and failing agreement:
(a)During the school term from after school Thursday until before school Monday each alternate week. The father’s time shall commence as follows:
(i)In even numbered years, the father’s time will commence on the first Thursday of each new school term; and
(ii)In odd numbered years, the father’s time will commence on the second Thursday of each new school term.
(b)For one half of the children’s school holiday periods namely the first half in even numbered years and the second half in odd numbered years.
(c)The children’s school holiday period is defined to commence from the end of the school day on the last day of school and to conclude at 5.00pm on the Sunday preceding the recommencement of school. The mid-point of the holidays will be calculated by dividing the total amount of nights by two, and in the event there is an odd number, the father will get the extra night. The changeover at the mid-point of the holidays will occur at 5pm.
The parent who has the children in their care for the second half of the Christmas school holidays spend time with the children from 2pm Christmas Day until 2pm Boxing Day.
That if the children are with the father, then the mother spend time with the children on the following occasions:
(a)On Mother’s Day from 9.00am until 5.00pm;
(b)On the mother’s birthday if on a school day from 3.00pm until 7.00pm. If on a non-school day from 9.00am until 4.00pm;
(c)On the children’s birthdays if on a school day for at least two (2) hours. If on a non-school day for at least four (4) hours.
That if the children are with the mother, then the father spend time with the children on the following occasions:
(a)On Father’s Day from 9.00am until 5.00pm;
(b)On the father’s birthday if on a school day from 3.00pm until 7.00pm. If on a non-school day from 9.00am until 4.00pm;
(c)On the children’s birthdays if on a school day for at least two (2) hours. If on a non-school day for at least four (4) hours.
That unless agreed otherwise in writing, changeovers occur as follows:
(a)On school days at the children’s school;
(b)On non-school days with the parent whose care the children are coming into, collecting the children form the other parent’s residence.
That the parent who does not have the care of the children have telephone communication with the children at all reasonable times as agreed between the parties and failing agreement each Tuesday and for the Father on the Thursday that the children do not come into his care between 6.00pm and 6.30pm, with the parent who does not have the care of the children to initiate the call to the other parent and the parent who has the care of the children to ensure that the children are available to take the call in a quiet and private environment.
That each parent is restrained from denigrating the other parent or their partners to or in the presence of the children.
That each parent is restrained from consuming alcohol over the limit of 0.05, using illicit substances or smoking cigarettes near the children whilst the children are in their care.
That if the father holds an Australian passport for the child X, then he provide that passport to the mother within seven (7) days of these Orders.
That within one month of either parent’s request to apply for an Australian passport for the children, the other parent will sign the necessary passport applications and documentation, and the parents shall equally share the costs of obtaining such passports which will be held by the mother.
That if either parent wishes to take the children on an international holiday, at least six weeks prior to the date of travel, they are to provide the other parent with a flight itinerary, a copy of return flight tickets, a list of countries intended to be travelled to, a list of the places and details of relevant addresses of where the children will visit and/or stay, and contact numbers for the children whilst away.
That on the father providing to the mother copies of the children’s flight itineraries and a copy of return flight tickets for the children’s overseas travel on a holiday, the mother will provide the children’s passports to the father. The father will return the children’s passports to the mother within seven (7) days of the end of the children’s overseas holiday.
That neither parent take the children to a non-Hague Convention country unless the attendance at a non-Hague Convention country is as a result of a stopover on an international flight, except the mother be permitted to take the children to the (country omitted) for a holiday.
That the father actively discourage anyone referring to his partner, Ms L, as the children’s mother and the father actively discourage the children from referring to Ms L as “Mummy” and “Mum” and that the father discourage Ms L from referring to herself as “Mummy” or “Mum” to the children and that the father actively encourage the children to refer to the mother as “Mummy” or “Mum” and to discourage the use of “Mummy Ms Haywood”.
That the mother and father shall keep each other informed of their contact telephone number and address and will advise each other within forty-eight (48) hours when there is a change to such details.
That if either parent intends to take the children out of the (omitted) locality for a period of in excess of forty-eight (48) hours, then they are to provide in writing to the other parent a contact address, contact telephone number and details of where the children will be travelling to and if the children flying, then flight itineraries for the children’s flights.
This order shall be sufficient authority for all schools, medical practitioners, general and special dentists and other special persons dealing with the children to provide to the parents any and all information, including but not limited to school reports, newsletters, school photographs, order forms sought by them and effect their request at their individual expense (if any).
That each party be granted liberty to apply within 28 days of the date of this order in relation to any point of clarification of the orders and in respect of costs.
IT IS NOTED that publication of this judgment under the pseudonym Haywood & Haywood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 16 of 2013
| MS HAYWOOD |
Applicant
And
| MR HAYWOOD |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION:
On 9 January 2013 an application was filed in this court by Ms Haywood. For convenience, I shall refer to her as the mother. The respondent to the application is Mr Haywood. For convenience, I shall refer to him as the father.
The mother’s application related to orders sought with regard to the parenting of the two young children of the relationship between the mother and the father. Those children are X, born (omitted) 2010 and Y, born (omitted) 2011. The original application filed in 2013 resulted in final orders being made on 27 June 2014. Those orders of 27 June 2014 were made following an undefended hearing. The situation that gave rise to that occurring came about as a result of the mother, who was the applicant in the original proceedings, disengaging from the proceedings.
A number of reasons have been put forward in relation to that disengagement by the mother, some of which have been raised by her as relating to difficulties or concerns with regard to her ability to remain in Australia, as well as suggested controlling or manipulative behaviours on the part of the father, which meant that she was unable to facilitate the opportunity for time with the children. From the perspective of the father, the mother’s failure to engage was more a reflection of an unsettled and erratic lifestyle, a lack of any real parenting ability and an absence of any intent on the part of the mother to fully meet the responsibilities and obligations that arose, with regard to the parenting of the children.
In any event, the mother did not, for a very significant period of time following separation, and certainly subsequent to the bringing of her current application, involve herself in the parenting of the children. In that respect, it is noted that when still engaged in the first proceedings, an order was made for the preparation of a family report and that family report was released by Registrar Boyd of this court on 30 October 2013. The family report noted at paragraph 12 as follows:
Ms Haywood was scheduled to be present for her interview at 9 am. When she did not attend, a phone call was made to her mobile phone at 9.08 am and a message left. At 9.12 am, the mother’s solicitor, Ms Sue Johnston, was notified. Ms Johnston reported that she had left messages on the mother’s phone and sent letters to Ms Haywood’s last known address to confirm today’s attendance but “got no response”.
On 24 October 2013 Ms Johnston filed a notice of withdrawal as a lawyer. The report then goes on to deal with issues in regard to the father’s concerns with respect to the welfare and the interests of the children. The father was noted in that earlier report, having been interviewed on 8 October 2013, to have said at paragraph 20:
I believed I could save her in the eyes of God. My intentions were honourable. I fooled myself to believe I was in love with her, believed I could save her from the situation she was in. Felt (he would then have a) partner and lover who would cherish the fact that I did do that. She told me she loved me. She cried. I believed her. Sorry if that sounds cheap. That’s how it was.
The father is noted at paragraph 19 of that same report to have met the mother in 2007 when on holiday in the (country omitted) and noted that the day before he was due to return to Australia was when the meeting occurred. He is reported there to have said that “Ms Haywood led a life of prostitution. That was how we met; It was paid for.” Mr Haywood then added “I don’t want that to be known to my family”. Some of those statements take some relevance, in relation to the ultimate determination of this matter.
It should be noted also, that the father does have some insight into his own behaviours and matters that were the subject of significant criticism, particularly in the submissions that have been filed in these proceedings. It is noteworthy, for example, that the father remarked, as recorded at paragraph 21:
I’m reasonably pig-headed. I’m old-fashioned. I think at the end of the day marriage needs two people to row the boat, needs one person to steer the boat to avoid the rocks. Doesn’t fit favourably with a lot of women. No disrespect. Everyone has their own opinion.
The father was certainly providing for and meeting the needs of the children as a result of the mother’s disengagement. It is noteworthy that the father was recommended to have the children live with him and when the matter subsequently came before the court in June of 2014, orders were made on an undefended basis, which reflected such an arrangement.
The orders of 27 June 2014 were short and to the point. They were in these terms:
1. That the children X born (omitted) 2010 and Y born (omitted) 2011 live with the Father.
2. That the Father have sole parental responsibility for decisions in relation to the long-term and day to day care, welfare and development of the children, subject to the communication and notification of such decisions to the Mother, including but not limited to:
a. the children’s education (both current and future);
b. the children’s religious and cultural upbringing;
c. the children’s health;
d. the children’s name; and
e. changes to the children’s living arrangements that make it significantly more difficult for the child to spend time with other parent.
3. That the children spend time with the Mother at all reasonable times as may be agreed between the parties and failing agreement as ordered by a Court of competent jurisdiction.
4. That each party be restrained from denigrating the other in the presence of the children or from allowing the children to remain in the presence of any other person acting in such a manner.
5. That each party be restrained from consuming alcohol (over the legal limit of 0.05) or using any illicit substances while the children are in their care.
What they meant was that X and Y lived with their father, and at the time of the making of the orders, and for some time preceding that, had limited interaction or time with their mother.
THE CURRENT APPLICATION:
However, in May of 2015, a fresh application was filed by the mother seeking further orders with regard to the parenting of the children. The application proposed that there should be orders made which could generally be summarised as follows:
·That all previous orders, including, the final orders of 27 June 2014 be discharged.
·That the parents have equal shared parental responsibility for decisions to be made in relation to the parenting of the children.
·That the children live with the father.
·That the mother spend time with the children, at times as agreed, and then went on to particularise how that was to occur. It was proposed specifically in that regard that the mother have the care of the children alternate weekends for a period of three months, and then every weekend from 3 pm Friday until 3 pm Sunday thereafter, until she successfully obtained a drivers licence, at which time it was proposed that there should be a week-about arrangement with regard to the parenting of the children.
·Orders were also proposed with regard to the sharing of school holiday periods and for special days such as the children’s birthdays, the parents’ birthdays, Mother’s Day, Father’s Day and the like.
·That the parties communicate with the children by telephone or by Skype, Wednesdays and Saturdays when the children are not in their care.
·That various restraints and injunctions be put in place, including a non-denigration clause, as well as machinery orders relating to each parent exchanging information about the children and their lives with the other parent and ensuring that each parent was authorised to obtain information with respect to the children.
The father responded to that application on 10 July 2015 and proposed orders on a final basis, which provided for some particularity with regard to the mother’s opportunity to spend time with the children, but also specifically sought the continuation of arrangements with regard to the children living with the father and with the father having sole parental responsibility for decisions to be made, in relation to the parenting of the children.
Rather than an open-ended order, providing for the children to spend time with the mother at all reasonable times as may be agreed between the parties, the father proposed that the mother spend time with the children, initially for a period of one month each Saturday from 9 until 5, followed by alternative weekends from 3 pm Friday to 5 pm Saturday. And then, after a further one month period, for alternate weekends from 3 pm Friday to 5 pm Sunday.
The father’s proposals then included arrangements similar to those set out by the mother, in relation to school holidays, special days and the like, as well as arrangements with regard to communication and injunctions, including injunctions not only with regard to non-denigration, but also a restraint on each party from the consumption of alcohol to give a blood alcohol reading over the legal driving limit of .05 per cent, as well as the use of illicit substances, the smoking of cigarettes near the children or from failing to appropriately parent the children. The father also sought an order restraining each party from removing or attempting to remove the children from the Commonwealth of Australia.
The position of each of the parties changed quite significantly leading up to the final hearing of the matter, and I shall come to the proposed orders in relation to this matter on a final basis in a moment. But it is important to note, that at the time that the mother filed her current application, she also filed a notice of risk which indicated that she did not hold concerns with regard to the children being abused or being at risk of abuse in her care or the care of the father, as well as noting that she did not hold any information as to referrals of the children to any external authority, including police, child welfare, medical practitioners or otherwise.
However, the mother did detail in her notice of risk, under the heading “Allegations relating to family violence,” specific concerns with regard to alleged family violence or risk of violence. There she noted the following:
On 13 July 2012 as I was packing to move out of the home, Mr Haywood took the children and placed them in his car without my knowledge. When I finished packing, I asked Mr Haywood where the children were, however Mr Haywood did not answer. I then went outside and saw the children in the car and when I tried to open the door, it was locked. The children were in the car crying and when I went to get the keys, Mr Haywood got into the driver’s side of the car and drove away. To stop Mr Haywood driving away, I did stand in front of the vehicle and Mr Haywood did hit me at least three times before I stepped away from the car.
Mr Haywood eventually returned and allowed me to take the children from the vehicle. I did return the following day to ask Mr Haywood for assistance with money as I had no access to Centrelink payments, nor was I working. Mr Haywood refused and said words to the effect ‘don’t care if you starve’.
On 15 July 2012, Mr Haywood attended the residence that I was staying at and took the children and placed them in his car and he did not have car seats installed. When I tried preventing Mr Haywood from taking the children, he grabbed me and shoved me away, saying words to the effect ‘It’s your fault’. Mr Haywood also said to me words to the effect, ‘you can’t see the kids any more’.
I was highly distressed after the incident and attended the police station seeking assistance. As a result I completed an application for domestic violence order, however this was later withdrawn, as I was hopeful that Mr Haywood and I would get back together.
Thereafter, the notice of risk notes the complaint to an external authority, the police, and then indicates that, under the heading “Allegations related to other risks,” there were no risks posed to the children as a result of either parent suffering from mental ill-health, either parent abusing drugs or alcohol, either parent suffering from a serious parental incapacity or otherwise expressing concerns with regard to the welfare of the children.
There were, therefore, limited concerns expressed on the part of the mother, though certainly some issues with regard to the matter of family or domestic violence were alleged.
The father was represented when his response to the current initiating application was filed on 10 July 2015. The notice of risk, which is required to be filed in relation to such proceedings, however, made absolutely no reference whatsoever to any risks relating to the welfare of the children. In answer to the question, “Has a child to whom the proceedings relate been abused or is a child to whom the proceedings relate at risk of being abused?” the father said no.
In relation to the question “Has there been family violence or is there risk of family violence by a party to proceedings or any other person who is relevant to the proceedings?”, the father said no. And, most particularly, under the heading, “Allegations related to other risks” and, in particular, noting whether there were concerns with regard to mental health, mental ill-health, abuse of drugs or alcohol, a serious parental capacity or other risks, the father each time noted “no”.
It should be recognised however that the father’s affidavit, and in fact every piece of material filed by the father, is overburdened with statements in relation to the concerns that are held, with regard to the mother. The very document that is required to alert the court to issues of concern with regard to the welfare and safety of children made no reference whatsoever to such issues arising.
When the matter came before the court on the first return date following the filing of the fresh application in May of 2015, the parties were able to reach an agreement in relation to the interim parenting of the children. The terms of those orders that were agreed between the parties on 13 July 2015 included, that until further order, the previous orders made on an undefended basis be discharged, but that the children X and Y continue to live with the father and for the father to have sole parental responsibility.
The orders did, however, provide, as proposed by the father, for the mother to have immediately an opportunity to spend time with the children and after one month for that time to progress to overnight periods and then, after a further one month, to alternate weekends from 3 pm Friday to 5 pm Sunday. The orders also included arrangements with regard for special days and the like. Unfortunately, the mother’s opportunity to spend time with the children pursuant to those orders, certainly once there was provision for more significant periods of overnight time, were honoured more in their breach than in compliance.
The position of the parties has been fluid. As indicated, the mother was seeking a move towards equal time, but that has been varied as a result of the matters before the court, including particularly the evidence that has fallen. The father’s position also has changed, specifically as a result of the mother’s relationship with Mr K having ended. At the present time, the mother continues to share a residence with Mr K but there is no longer a personal relationship between she and Mr K. More particularly, it is expected that within a short period, the lease that is jointly held by the mother and Mr K over the property at which the mother currently resides, (omitted), will come to an end and it is expected that the mother will then be required to move. The father’s position in relation to the mother’s time with the children therefore is subject to a clause relating to the mother ceasing to share a residence with Mr K.
The father’s proposed orders, as detailed on a final basis in his amended response, filed 24 February 2017, are in these terms,
1. That the orders of 13 July 2015 be discharged.
2. That the children X born (omitted) 2010 and Y born (omitted) 2011 live with the father.
3. That the father have sole parental responsibility for decisions in relation to the long-term and day-to-day care, welfare and development of the children.
4. That for the purpose of these orders decisions that in relation to long term day-to-day care, welfare and development of the children include but are not limited to:
a. The children’s education;
b. The children’s religion;
c. The children’s health;
d. The children’s name; and
e. Where the children live.
5. That while the mother lives with Mr K at the current address of (omitted), or until one of them moves out, or until the lease expires in October 2017, that the children spend time with the mother as follows:
a. From 3.00pm Friday to 5.00pm Sunday each alternative weekend.
Special days
6. The children are to spend 9.00am to 5.00pm on Mother’s Day, with the mother to collect and return them to the father.
7. The children are to spend 9.00am to 5.00pm on Father’s Day, with the father, with the father to collect and return them to the mother, if required.
8. The children are to spend their birthday’s each even numbered year with the mother.
9. The children are to spend their birthday’s each odd numbered year with the father.
10. In the event that the children’s birthdays or parent’s birthdays fall on a school day the parent that the children are to be spending time with will collect both children from school at 3.00pm that day and return them to the father at 7.00pm.
11. The children are to spend the father’s birthday with the father in the event the father’s birthday is in the mother’s time from 9.00am to 5.00pm with the father to collect and return them to the mother.
12. The children are to spend the mother’s birthday with the mother in the event the mother’s birthday is in the mother’s time from 9.00am to 5.00pm with the mother to collect and return them to the father.
13. The children are to spend Christmas Eve to 5.00pm Boxing Day with the mother on all odd numbered years.
14. The children are to spend Christmas Eve to 5.00pm Boxing Day with the father on all even numbered years.
15. The children are to spend the first half of all gazetted school holidays with the mother
16. The children are to spend the second half of all gazetted school holidays with the father.
17. For the purpose of the children spending time with the father as mentioned in paragraph 14 the father in all even numbered years is to collect the children at 9.00am Christmas Eve and return the children to the mother at 5.00pm Boxing Day.
18. Notwithstanding the order in paragraph 15 the children are to spend Easter Friday to 5.00pm Easter Sunday with the father in all even numbered years.
19. The children are to spend Easter Friday to 5.00pm Easter Sunday with the mother in all odd numbered years.
20. When the lease at the mother’s current address at (omitted) expires in October 2017, OR if Mr K moves out before that time OR if the mother moves out before that time the following changes are to take place:
a. Overnight visits with the mother will cease;
b. The children are to spend Saturday 9.00am until 5.00pm and Sunday 9.00am until 5.00pm on alternative weekends with the mother. The mother is to collect the children each day and return them to the father.
c. Mother’s Day, Father’s Day, and birthdays as outlined in Paragraphs 6-12 will remain the same.
d. The children are to spend 9.00am until 5.00pm each day with the mother on the first half of the gazetted holidays. The mother and father will alternate pickup and dropoff.
e. For the purposes of spending time with the mother at Christmas and Easter in alternative years as outlined in Paragraphs 13, 14, 17, 18 and 19, the children will be returned to the father each night at 5.00pm.
Communication
21. The mother be at liberty to call the children on the father’s mobile phone. The father to ask the children if they would like to take the call within an agreed window of time. The father may end the phone call if the children are visibly upset.
22.That each party is restrained from denigrating the other in the presence of the children.
23. That each party is restrained from consuming alcohol over the limit of 0.05, using illicit substances or smoking cigarettes near the children whilst they are in their care.
24. That each party is hereby restrained and an injunction issue restraining either party from or attempting to remove the children from Australia or any of its Territories.
25. That no passports be issued for the children until they are both 16 years of age, that is when Y turns 16 on (omitted) 2027.
The mother’s application, as I indicated, was the subject of amendment, and on 14 February 2017 the mother’s proposed orders were for the parties to have equal shared parental responsibility and for the children to live with each parent on a shared care, week on, week off basis, which was to continue during the short end of term 1, end of term 2 and end of term 3 school holiday periods, but to be suspended during the end of term 4 Christmas school holiday period, so as to provide a more lengthy opportunity for each parent to holiday with the children.
The mother’s proposals then went on to deal with issues in relation to special days, telephone communication, necessary injunctions, the surrender up of passports for both children, though the mother suggests that she is only aware of a passport held in the name of the child X, and that they only be released upon the written consent of both parents or an order of a court of competent jurisdiction. Thereafter the mother’s proposals with regard to the passports and holidays that might be able to be taken by both parents with the children were detailed, including, specifically, proposals with regard to provision of information with regard to international holidays and specifically arrangements with regard to the mother seeking the opportunity to holiday with the children in the (country omitted) during occasions that the children were in her care.
The mother’s proposals with regard to equal shared parental responsibility and with respect to equal time being spent with each parent were, to a significant degree, reflective of the recommendations contained within the family report of family consultant Ms M, which report is dated 2 September 2016.
The mother’s position, however, changed significantly during the course of the hearing. And in written submissions that were provided as to the ultimate outcome of these proceedings, the mother’s final position was as detailed in schedule A to the submissions filed on 23 March 2017. The final orders proposed were in these terms:
1. That all previous orders be discharged.
2. That the mother have sole parental responsibility for major long term issues of the children, X born (omitted) 2010 and Y born (omitted) 2011. Prior to making a decision in the exercise of her sole parental responsibility, the mother will notify the father in writing of the decision that is to be made and she will consider any views of the father before making the decision. Once the mother makes a decision in the exercise of her sole parental responsibility, the mother will notify the father in writing of the decision that is made.
3. Notwithstanding Order 2 herein:
a. The mother shall be responsible for the daily care, welfare and development of the children whilst they are living with or spending time with her; and
b. The father shall be responsible for the daily care, welfare and development of the children whilst they are living with or spending time with him.
4. That the children live with the mother.
5. That the children spend time with the father at all reasonable times as agreed between the parties and failing agreement:
a. During the school term from after school Thursday until before school Monday each alternate week. The father’s time shall commence as follows:
i. In even numbered years, the father’s time will commence on the first Thursday of each new school term; and
ii. In odd numbered years, the father’s time will commence on the second Thursday of each new school term.
b. For one half of the children’s school holiday periods namely the first half in even numbered years and the second half in odd numbered years.
c. The children’s school holiday period is defined to commence from the end of the school day on the last day of school and to conclude at 5.00pm on the Sunday preceding the recommencement of school. The mid-point of the holidays will be calculated by dividing the total amount of nights by two, and in the event there is an odd number, the father will get the extra night. The changeover at the mid-point of the holidays will occur at 5pm.
6. The parent who has the children in their care for the second half of the Christmas school holidays spend time with the children from 2pm Christmas Day until 2pm Boxing Day.
7. That if the children are with the father, then the mother spend time with the children on the following occasions:
a. On Mother’s Day from 9.00am until 5.00pm;
b. On the mother’s birthday if on a school day from 3.00pm until 7.00pm. If on a non-school day from 9.00am until 4.00pm;
c. On the children’s birthdays if on a school day for at least two (2) hours. If on a non-school day for at least four (4) hours.
8. That if the children are with the mother, then the father spend time with the children on the following occasions:
a. On Father’s Day from 9.00am until 5.00pm;
b. On the father’s birthday if on a school day from 3.00pm until 7.00pm. If on a non-school day from 9.00am until 4.00pm;
c. On the children’s birthdays if on a school day for at least two (2) hours. If on a non-school day for at least four (4) hours.
9. That unless agreed otherwise in writing, changeovers occur as follows:
a. On school days at the children’s school;
b. On non-school days with the parent whose care the children are coming into, collecting the children form the other parent’s residence.
10. That the parent who does not have the care of the children have telephone communication with the children at all reasonable times as agreed between the parties and failing agreement each Tuesday and Thursday between 6pm and 6.30pm, with the parent who does not have the care of the children to initiate the call to the other parent and the parent who has the care of the children to ensure that the children are available to take the call in a quiet and private environment.
11. That each parent is restrained from denigrating the other parent or their partners to or in the presence of the children.
12. That each parent is restrained from consuming alcohol over the limit of 0.05, using illicit substances or smoking cigarettes near the children whilst the children are in their care.
13. That if the father holds an Australian passport for the child X, then he provide that passport to the mother within seven (7) days of these Orders.
14. That within one month of either parent’s request to apply for an Australian passport for the children, the other parent will sign the necessary passport applications and documentation, and the parents shall equally share the costs of obtaining such passports which will be held by the mother.
15. That if either parent wishes to take the children on an international holiday, at least six weeks prior to the date of travel, they are to provide the other parent with a flight itinerary, a copy of return flight tickets, a list of countries intended to be travelled to, a list of the places and details of relevant addresses of where the children will visit and/or stay, and contact numbers for the children whilst away.
16. That on the father providing to the mother copies of the children’s flight itineraries and a copy of return flight tickets for the children’s overseas travel on a holiday, the mother will provide the children’s passports to the father. The father will return the children’s passports to the mother within seven (7) days of the end of the children’s overseas holiday.
17. That neither parent take the children to a non-Hague Convention country unless the attendance at a non-Hague Convention country is as a result of a stopover on an international flight, except the mother be permitted to take the children to the (country omitted) for a holiday.
18. That the father actively discourages anyone referring to his partner, Ms L, as the children’s mother and the father actively discourage the children from referring to Ms L as “Mummy” and “Mum” and that the father discourage Ms L from referring to herself as “Mummy” or “Mum” to the children as well. That the father also actively encourage the children to refer to the mother as “Mummy” or “Mum” and to discourage the use of “Mummy Ms Haywood”.
19. That the mother and father shall keep each other informed of their contact telephone number and address and will advise each other within forty-eight (48) hours when there is a change to such details.
20. That if either parent intends to take the children out of the (omitted) locality for a period of in excess of forty-eight (48) hours, then they are to provide in writing to the other parent a contact address, contact telephone number and details of where the children will be travelling to and if the children flying, then flight itineraries for the children’s flights.
21. This order shall be sufficient authority for all schools, medical practitioners, general and special dentists and other special persons dealing with the children to provide to the parents any and all information, including but not limited to school reports, newsletters, school photographs, order forms sought by them and effect their request at their individual expense (if any).
THE EVIDENCE:
It has been necessary to provide a lengthy recitation of the history in relation to this matter. It is particularly important that it be understood that dispute has continued in regard to the parenting of these children since they were both very young. As noted, X was born on (omitted) 2010 and therefore the proceedings commenced before he turned three, and, of course, in relation to Y, she was only a little more than 18 months old when the proceedings first were instituted.
Therefore, these children have been the subject of all of the tensions and difficulties that arise for parents, and which flow from parents to children as a result of litigation which has continued for a significant period.
The parties are now as far apart as they have been in relation to what each propose in respect of the parenting of the children. Earlier in these reasons, I made reference to the comments that were attributed to the father, in respect of his discussions with Ms M on the occasion of the first interviews relating to the preparation of the family report in October 2013. The father’s views of relationships and, more particularly, his views in relation to the mother remain unchanged.
The mother was not required for cross-examination. The father was self-represented and, out of an abundance of caution, the father was advised of the fact, that if the evidence of the mother, as contained within her affidavits filed on 26 May 2015 and 14 February 2017, were not challenged, then there would be a presumption that what was contained in those affidavits was generally true and correct. The father considered that and indicated that he would address matters in his submissions to me.
And to some extent he has done so in the written submissions that have been filed. However, it is certainly clear that the father had many disputes with what was detailed in the material filed by the mother, but did not directly challenge her, in relation to such matters. In any event, as the case progressed and evidence fell in relation to this matter, I gained the distinct impression that there would have been little to be gained from the father’s perspective in cross-examining the mother, because of the fundamental differences that existed in respect of what each party considered were the failings and deficiencies on the part of the other party.
In that respect, the father, in his submissions to me, noted that, at least in his view, counsel for the mother goaded him, dominated him and cajoled him in the witness box and, in his view, if he had asked the mother even one question in a manner similar to that to which he was cross-examined, then there would have been the opportunity for him to have been suggested to have been harassing, intimidating, controlling or manipulative. I shall come to any assessments of both parties including their demeanour after I more comprehensively deal with issues in relation to the evidence in respect of this matter.
I should also note that Ms M, the family report writer in these proceedings, was required for cross-examination by both counsel for the mother and by the father. The evidence of Ms M had some significance in relation to these proceedings and the ultimate outcome.
THE PARTIES:
Insofar as the evidence is concerned, the mother was not required, as I have indicated, for cross-examination. She detailed in her two affidavits her position with regard to the parenting of the children, and particularly in her trial affidavit filed on 14 February 2017. She set out matters which she said were relevant in relation to the orders that she ultimately now proposed with regard to the parenting of the children.
The mother detailed at paragraphs 22 through 30 matters that she says were reflective of the personality, needs and attachments of the children and noted at paragraph 25 in relation to X that he:
Often wants to cuddle me and often does drawings of me and writes that he loves me.
She noted at paragraph 29 that Y was also “sweet and active” and went on to note that she:
Loves cuddles and often wants affection and can become quite jealous if X is giving me a cuddle.
The father’s views in relation to the mother’s relationship with the children was entirely different and generally critical of the mother, though the father, in cross-examination, did acknowledge that he had no personal experience of the mother’s interaction with the children, other than what he might have been specifically told by the children. The father indicated that he certainly accepted the word of the children over and above anything that might be suggested by the mother.
The mother also suggested in her trial affidavit that she had been, until separation, in July of 2012, the children’s primary caregiver as well as being the principle homemaker, and that she experienced difficulties during the relationship because of feeling homesick and depressed with the situation in Australia.
The mother then went on in her trial affidavit to detail the circumstances that she says surround separation. As I have noted, the circumstances are very different to those deposed to by the father. The mother then basically suggests that after she commenced the initial proceedings in January 2013 there was, to some extent, a workable arrangement but that the father continued to be controlling and dictatorial in relation to her opportunity to spend time with the children.
More particularly, the mother says that she “forgot” to update Ross Lawyers with her new contact details and they could not contact her and therefore withdrew from the proceedings that were originally commenced by them. She then details, as I have previously referred, to the stress associated with the court proceedings and sorting out visa issues and that as a result of the stressors that were placed upon her, she disengaged. She says, however, that her disengagement was from the proceedings generally and not from the children and that she continued to ask the father to allow her to spend time with the children.
The mother directly suggests in paragraph 59, that the orders that were obtained on an undefended basis on 27 June 2014 were obtained irregularly, in that she was not present at court, though she had been communicating with the father about arrangements with regard to the parenting of the children and was informed that she was due in court on a different date. The mother says that the father had told her that the two of them could come to an agreement between themselves and that they would not need to, “waste money on lawyers and going to court”.
The father was not cross-examined in relation to that particular aspect of the matter and the father, as noted, did not cross-examine the mother with regard to that issue. Suffice it to say that there is a vast gulf between what each parent proposes in relation to the relationship with the children.
The mother then went on at considerable length to detail what she says are the difficulties associated with her having a relationship with the children, notwithstanding her contention that the children are seeking more time with her. From paragraph 80 onward, the mother details what she says are her concerns with respect to any dealings with the father, though, as I have noted, the mother in her amended initiating application still sought orders with regard to equal shared parental responsibility. With respect, the evidence would clearly indicate that any such proposal was a triumph of hope over expectation.
The mother then details what she says are the factors which give rise to her being concerned that the father does not consider her an equal parent. She makes reference to the fact that she does not think that the father believes that she is intelligent or as smart as him and therefore lacks the ability to look after the children. She also says that she is an intelligent woman and speaks two languages, (language omitted) and English, and that she learnt English from the time when she was a young child and is able to both read and write the language.
The father deposes in his material, and certainly in his submissions, to this being untrue and that the mother sought, as he put it, to play the “victim card” in earlier proceedings requesting the assistance of translators and the like.
The mother most specifically suggests that the father has no appreciation of her importance to the children and being in the life of the children and suggests that the father considers that he and his partner Ms L, are more important to the children. She goes on specifically to refer to an advertisement in a backpacker website in May 2014, eight or 10 weeks prior to the original final orders being made, to an advertisement which includes paragraphs relating to the children experiencing love from someone as they have “no mummy” and the need and desire of the father and the children to experience food, cooking and language from other nations.
The mother generally suggests that the father has manipulated and controlled her, insofar as convincing her that court proceedings and the like were not necessary. The mother says that she realises this was a “big mistake” and that it effectively gave the father the control that he has sought to exercise over the children and over the mother’s relationship with the children.
The mother completes her affidavit commenting upon her proposals, as they were in early March 2017, and concludes that she has a lot to offer the children, and that in her assessment, it is in their best interests that they spend more time with her. I accept that the mother is genuine in that desire.
I must obviously, however, note some concerns with the mother’s disengagement in the past, and whilst there may have been some involvement of the father which led to her misunderstanding, the requirements that arose with regard to the proceedings that were on foot, her failure to maintain communication of any proper nature with her solicitors, is exactly what has given rise to the difficulties that now exist in relation to the parenting of these children. Notwithstanding that criticism, however, I am certain that the mother loves the children and, more importantly, that the children love their mother and that the mother wishes to be far more significantly involved in the life of the children.
The father also has much to offer the children, but many of his attitudes and statements give rise to serious concerns as to his real willingness, though it may not even be appreciated by him as being a failure, but rather, as he would suggest, protective measures that preclude the mother from any real relationship with the children.
The father’s trial affidavit filed on 24 February 2017 is 451 paragraphs in length. It commences with a statement by the father about his past and his upbringing and how that has made him the person that he is. He says in paragraph 10:
I feel that I became a responsible adult with a well-adjusted sense of my place in society.
He also notes the various qualifications that he held and the places that that took him as a result of the opportunity to work, not only in Australia but throughout the world. It was during various travels that the father met the mother and a relationship developed.
The father has absolutely no appreciation of the denigrating and demeaning nature of his statements that then litter the next 400 or more paragraphs that follow, the motherhood statements that he makes about his idyllic upbringing and the qualities that he brings both as a member of society and a father.
Under the heading “The relationship,” the father says the following in paragraphs 21 through 27:
21. As to how I met Ms Haywood, to start at the beginning, I was walking down “(omitted)”, in (country omitted), (country omitted). A bargirl was calling from the front of a bar, she looked good, I went in with her, we got on ok, she could speak reasonable English, after a couple of hours and several drinks, the Madam said to me that I had to pay barfine for her, or move on to another bar, so I paid the barfine (400 pesos, approx.. $13 Australia) for her for the night, we left and went back to my hotel room, we had sex, she left and went back to work.
22. The next night, I went out again, to a couple of different bars, I went back to the same bar, I was looking for another girl, but this same girl spotted me and basically catted any other girl who tried to come over to me. I shrugged resignation, asked the Madam how much for 2 whole days, paid, and left with her.
23. We took a bus to a beach resort, a couple of hours away and settled into a weekend of eating, sex and shopping. I spent money with her freely, I was on holidays.
24. On the second night, as we were having sex, she cried and I asked if I was hurting her, she said “No, I just love you”. I fell for it. Here was this starved little woman, 4 foot high and maybe 35 kilos, whose friends constantly stole from her, a boss that was selling her, and she was using her body for sex.
25. My saddened heart went to her. I vowed to myself that I could do the right thing by this woman, save her from this place, bring her home and take care of her.
26. This woman was Ms Haywood.
27. I cannot and never will say, that the above actions were a mistake, if I had not done these things, then we would not have our children that we have today.
The father is demeaning of the mother in the extreme. She is a prostitute and, she has no redeeming qualities. He degrades her, even to the extent of noting, as he does, that he vowed to himself that he would do the right thing by the mother and save her from this place. The father genuinely sees himself as a saviour, but he also clearly saw himself as the head of the household, needing and requiring a compliant (nationality omitted) woman, as he indicated in his cross-examination by counsel for the mother.
The father fails to recognise the abundant hypocrisy that arises from his statements made about the mother. He says in paragraph 24 of his affidavit, “I fell for it.” It was as if he suggests that the mother was determined to trap him into the relationship. Of course, it was he who was the first-world visitor to a country suffering from abject poverty. It was he who used a “four-foot high and 35-kilo woman for sex”. He was the person who paid A$13 to use her. It was he who failed entirely to recognise that it was persons just like him and others, who use and abuse women and children, who are the subject of criticism throughout the world. The father has no appreciation whatsoever of the abhorrent nature of his attitudes and of his demeaning approach to the mother.
I do not intend to provide a lengthy dissertation about the evidence of the father. It was tragic in the extreme that the father could not or would not see anything other than his own view. The mother refused to breastfeed X, not because she suffered from mastitis and the pain associated with that, as well as the difficulties no doubt associated with a “tiny little woman” giving birth to a child, but rather it was her attempt to minimise breast sagging.
The father was demeaning of the mother in every way that could be suggested. The father was abusive of the mother and nursing staff when he did not get his way, failing to appreciate at all that there may have been legitimate and proper medical reasons for the mother not being able to feed. The father only has one way, his, and if anyone opposes him, there is nothing but hard times to be experienced, as the father has no appreciation of the consequences of his actions.
The father could not even contemplate that there may have been difficulties in a relationship brought about as a result of his actions. At paragraph 115 of his trial affidavit, he simply mentions in passing that the mother’s friend Ms J:
was the instigator for all the troubles in my marriage, she was a very vindictive person and her own marriage was visibly a mess and she had already kicked her husband out of his house.
The fault lay with the mother. The fault lay with the mother’s friends. There was no fault in the father or in his overbearing and dictatorial behaviours. Though at least, to some extent, the father acknowledged that he had been physically abusive toward the mother, noting that after the mother had smashed a number of plates in an altercation with the mother he had slapped her face. He indicates that he was ashamed of that slap and will one day have to face his children over his behaviour.
Unfortunately, there would seem to be much, much more than simply one altercation that led to a physical exchange between the mother and the father. The father, though not appreciating it, will have much to explain to the children as they grow older and realise the hurt and the harm that has been done to the relationship between the mother and the children and the long-term consequences of that.
In cross-examination, the father was repeatedly challenged about his attitudes to the mother and his belief that he was ultimately the only arbiter of what was appropriate, in relation to the parenting of the children. The father suggested that the children were not fed properly, that their educational needs were not met and would not be met by the mother, that they would not be given the opportunity to socialise and to develop relationships in Australia, but would be forced into a situation of only having relationships with members of the (nationality omitted) community. The father suggested the mother would not allow the children to sleep or to rest properly.
The father spoke in his affidavit of the re‑introduction of some opportunity for time to be spent by the mother with the children. But when X had only just turned three by a matter of a few weeks, he had returned from an opportunity to spend time with his mother, “with hate in his eyes”. That was a reflection of the mother. When X was selfish, it was as a result of the mother’s behaviours or influence upon the child.
The father could not accept that selfishness on the part of a young child, particularly directed towards a younger sibling, might be simply a reflection of a child’s general egocentricity at the ages that the children were. The father acknowledged that there might be a little of that occurring, but in his experience, it was as a result of the mother. The mother’s treatment of the children was deplorable, the mother’s treatment of the children, in the father’s view, was the cause of every ill that had befallen the father and, more particularly, was the cause of any perceived difficulties that the father assessed existed with the children.
If the children exhibited sexualised behaviours, it was as a result of matters that had arisen in the mother’s care. The father could not and would not accept that children pick up behaviours, words and attitudes in the playground as a result of association with other children and certainly would not concede that he and Ms L living in a (omitted) without walls, but only cupboards and curtains to separate different areas within the (omitted), might actually give rise to some opportunity for the children to inadvertently pick up on sexualised or adult behaviours simply as a result of passing in the night. It did not happen, it would not happen in the father’s household. He was in control. The mother was responsible.
When asked whether he had stopped time on occasions with the mother for significant periods, he said that he had done so and he made no apologies for that. The father would not concede a fault on his part. Everything was done by him to protect the children. And whilst I accept absolutely that he genuinely holds that belief and will go to his grave holding that belief, the great tragedy is that it is a misguided and damaging viewpoint, and one that gives rise to very serious concerns as to any possibilities of the parents being able to work together, with respect to decisions to be made with regard to the children.
If the past is the best indicator of the future, and one would generally expect that that would be so, then there is little hope at all that these parents will be able to communicate or discuss issues with regard to the parenting of the children.
The father was asked in cross-examination whether he would respect the mother’s opinion and views if the parents had equal shared parental responsibility. He indicated that he would have to do so, but there seems little in the evidence that that would be the case. When asked about his desire for an “(nationality omitted) bride”, he acknowledged that that was the case, and when asked whether that was because they were, “more compliant”, he responded, “You could say that.”
When being asked about the issue of the mother failing to breastfeed, the father suggested that the mother had not tried hard enough to breastfeed X. When it was put to him that the medical records suggest that when the mother was unable to breastfeed, the father had become verbally abusive of both the mother and of maternity staff, the father suggested that that was a result of his emotional state. It would appear that only the father has emotions that are worthy of consideration and it is only the father whose views and attitudes should be considered.
Following that line of questioning, the father indicated that he was “extremely tired and upset as a father that the children were not breastfeeding”. The father had absolutely no appreciation of the difficulties that the mother might have been experiencing and certainly did not even consider for a moment the upset that the mother might have experienced being unable to meet the maternal needs of the children and the hurt that might have arisen.
The father demeans the mother in every way that could be imagined. When asking about arrangements with regard to the children’s education, the father said that there was nothing more fundamental than the children’s education and that it was “obvious that the children would go to (omitted) School”. The obvious nature of that arose, the father said, from the quality of the education, but also no doubt from the fact that it was convenient for the father.
The father, when asked whether it was in fact the case that he didn’t want to consult with the mother, responded that there was nothing that had come up that would require consultation. The father failed to in any way appreciate again the ludicrous nature of such a statement, when he had only then been questioned about the educational needs of the children and had made a fundamental decision with regard to such arrangements.
The father had no recognition or appreciation of the role of the mother or the importance of the mother to the lives of these children. His response to a suggestion that he now considered his partner, Ms L, the real mother of the children, he responded with an interesting and rather troubling response which was to the effect that, “She has stepped in admirably.”
The father could find nothing good about the mother and, as I noted, the 451 paragraphs of his affidavit were littered with assumptions and criticisms of the mother. There was nothing positive, though the father suggested in his oral evidence that there were positives that he saw in the mother, though he was unable to elaborate at all upon what they might be, but had not included anything in the affidavit, because that was what was expected in relation to the case.
The father was questioned at length about issues in relation to his belief of what the children might say. He indicated the children may not always tell the truth but that he believed “our children”. When asked about whether, as identified by Ms M, X might be in a loyalty bind, he indicated that X might have some loyalty to his mother, but when asked whether X might experience conflicted loyalties to his mother and to his father and therefore be telling the mother or the father what one or the other might have said, he suggested that there was no such loyalty bind in existence.
The father was an honest witness, though, as I have indicated, one whose attitudes were troubling. He noted that he had said nothing about the mother that she had not similarly said about him, though there was no evidence to that effect, other than assumptions and opinions stated by the father. He indicated that he had, “stood up and manned up” for the children when they needed care and certainly his role in relation to stepping up and providing for the children cannot be underestimated.
But the father’s suggestion that there is therefore nothing that can or should be done to reinvolve the mother in the life of the children, exemplifies the lack of appreciation on the part of the father, of his responsibilities other than to put food on the table or a roof over their head. The father has no appreciation whatsoever of the consequences of his action and the hurt that he causes.
He indicated that he was an “alpha male” and “liked to see things run smoothly”. He then went on to answer, quite truthfully, when asked whether people might see his attitude and approach as wrong, as indicating that he acknowledged that that might be the case. But when asked whether he cared, he responded simply “no”. The fact is that the father has no appreciation or care as to the effects of his actions upon the children or any others.
The father suggested that the family report prepared in relation to this matter was superfluous to needs, particularly in light of the fact that any of the recommendations, etcetera, were a reflection of the mother’s circumstances, and her relationship with Mr K. As that relationship no longer was in place, it was not able to be relied upon.
The father genuinely believed that he had done what was best for the children. He had certainly stepped up in circumstances where the mother was not able, for a time, for whatever reason, to do so. But the father’s attitude thereafter was an attitude which gave rise to serious concerns as to the father’s ability to in any way foster a relationship or even appreciate the relationship and importance of the relationship between the mother and the children.
As is obvious from what I have detailed here, I have serious concerns about the father and his capacity to even appreciate the needs of these children other than to see them as a direct reflection of his wishes, wants and attitudes.
I turn now to the evidence of the family report writer, Ms M.
THE FAMILY REPORT:
I turn now to the evidence of the family report writer. As previously indicated, two family reports have been prepared, the first in October of 2013, which was relied upon when making the first orders in the undefended hearing in June of 2014, as well as a far more comprehensive report, and I say that in the sense that the mother fully participated, which report was dated 2 September 2016. The report writer, Family Consultant Ms M, was required for cross-examination.
Ms M was asked whether she had read the trial affidavits filed by each of the parties, and indicated that she had not completely read the father’s trial affidavit, but was certainly more than halfway through and had a very clear picture of the positions of each of the parents. Literally the first question that was directed to Ms M by counsel for the mother was to inquire what her impression was of the father’s affidavit. Ms M responded rather tellingly as follows:
There are still elements of wanting to control the children and the mother’s relationship with them.
It was clear that Ms M identified the issue of control, even if it were not recognised by the husband as being a significant element in relation to these proceedings. She went on to note that the father’s insistence that the mother must be the person responsible for the care of the children at all times and that if the mother were not to care for the children then he would have the absolute right to approve any carers with whom the children might spend time reinforced her assessment of the father’s longstanding distrust of the mother and of the continuing elements of control.
Ms M indicated that the father’s comments about being an “alpha male” and “steering the ship of a relationship”, whilst two rowed, showed either his characteristics as a controlling person or certainly what she described as strong patriarchal views. She was asked to comment about the father’s affidavit being, as was put to her, relentlessly negative and strongly denigrating, and she responded that that was clearly the case, and it indicated that the father had, in her assessment, no respect for the mother whatsoever.
What this led to were a series of questions with regard to Ms M’s proposal that there might be an opportunity for final orders to be made, which provided for equal shared parental responsibility. In light of the material, and of course the evidence that had fallen in relation to the proceedings, the family consultant was asked whether it may simply be putting in place a situation where the mother would be required to acquiesce to the father’s views or be bullied until, finally, she did acquiesce.
Ms M suggested that that would probably be the case, and that unless there was, “a framework as to how decision making was to work”, that there was little likelihood that the parties would be able to civilly and courteously discuss issues with regard to the future parenting of the children.
Ms M suggested that perhaps a third party as a neutral person might be utilised for the purposes of facilitating such discussions, but in the end acknowledged that it would be an extremely difficult path to follow, and in her assessment probably one party or the other should have sole parental responsibility. She indicated that if that was to be the case, then she would favour the mother having sole parental responsibility, as the father would, as has been evidenced over the last few years, use his position as the parent with the sole decision making responsibility, to simply crash through any opposition or considerations that might be raised by the mother.
Significantly, Ms M was asked about the father’s appreciation of the effects of his attitude and behaviours upon the children, and of course, particularly upon their relationship with their mother. She acknowledged that the father had no recognition or appreciation of the damage that is caused to the children and his position of simply suggesting that anything that might be considered adverse to the interests or welfare of the children arises as a result of the mother’s influence or interaction with them did not auger well for the future.
Ms M noted that the father appeared to have little, if any, appreciation of the effects of his behaviours upon the children, and went so far as to note that the father was unable to even countenance a suggestion that there may be deficits in his parenting of the children. Ms M was asked about the fact that the father’s partner, Ms L, was referred to, it would appear within the household of the father as “Mummy”, and the mother was referred to as “Mummy Ms Haywood”. It was emphasised that this was, according to the father, a choice made by the children, but Ms M noted that it raised a question as to the father and Ms L’s view as to the mother’s place in the children’s lives, and more particularly noted that it distances the mother from the children.
She went so far as to say that even if the father did not recognise that it was the effect of he and Ms L’s stance letting the children call her “Mummy” and the mother “Mummy Ms Haywood”, it was in fact pushing the children away. Ms M certainly suggested that it raised a concern, again, as to the father’s lack of respect for the mother or appreciation of the importance of the mother in the lives of the children.
Ms M noted in her second report that X, in particular, displayed what she described as a loyalty bind. She noted that children pick up emotionally on the facial features and body language of those significant in their lives, and went so far as to note that some research would indicate that the words that are spoken or not spoken, only constitute about seven per cent of the actual input that is received in relation to communication. She emphasised that this was significant here, because although the father was adamant that he had never denigrated the mother, she was concerned that his attitude and beliefs in relation to the mother would be obvious to the children, and that, as she put it, there were “many ways to convey a message”.
Perhaps most significantly, in respect of the cross-examination of the family consultant, Ms M was asked about her professional views or opinions in relation to whether the father would or would not cooperate with the mother, particularly if orders where equal shared parental responsibility were made. She concerningly suggested that she did not believe that the father had any real intent to cooperate.
She certainly noted that the father said that he would behave differently, and that if ordered to do so, would negotiate with the mother. But it was abundantly clear that such statements were mere words, and that the actions of the father throughout the relationship subsequent to separation and even during the hearing were indicative of the view of the father that it was he who had the intelligence, the education and the best interests of the children to the fore. Therefore no matter whatever a child or the children might say or the mother might propose, unless it accorded with his wishes and suggestions, there was no means by which agreement being reached.
Ms M assessed that in her view, there was nothing that she had heard which would suggest that the father had any real or true belief that there was a benefit to these children in any relationship with their mother, other than one of a particularly limited and controlled nature, and that he should have the control of that relationship. This was notwithstanding the fact that the children had, in the assessment of Ms M, a close and loving bond with their mother, that their mother was important to them, and that their mother had much to offer them.
Ms M acknowledged that the mother loved the children. And whilst it was true and clear that there had been difficult times for the mother and she had made decisions that in hindsight no doubt caused her considerable pain, both in respect of her earlier life and in relation to the parenting of the children, she had much to offer the children. The concern of Ms M was that the father does not recognise the difficulties that the mother has had to deal with, and certainly shows little if any inclination to even appreciate that the mother has benefits to offer the children, and has worked to be a better parent, and person, than she may have been in the past.
The father’s demeaning and negative approach to the mother in the affidavits and in particular the trial affidavit that was filed by him emphasise that lack of any real appreciation of the mother.
The questions for Ms M then move toward alternative proposals, in relation to the parenting of the children, noting that her recommendations contained within her report of September 2016 were for the parents to have equal shared parental responsibility and equal time with the children. When questioned about the greatest risk for the mother, she emphasised that, in her assessment, the greatest risk was the children’s loss of a relationship with the mother, though the father emphasised that there were certainly far more significant, physical risks, in relation to the welfare of the children.
Ms M indicated that she felt no surprise that the father would assess the physical wellbeing and needs of the children ahead of any suggestion as to the children having emotional needs and, of course, consequences in the longer term, for their own stability. Ms M then went on to acknowledge that, in light of what had fallen, certainly, since the writing of the report and particularly as a result of the evidence contained within the affidavits and those other matters which had been put to her, it was in her assessment, now, most appropriate if the mother should have sole parental responsibility and that there should be significantly more time spent with the mother, perhaps, even greater than equal time.
It was put to her that if were not to be the case, that the father would run “roughshod over her”. Ms M responded, succinctly, that there was every possibility that that would be the case.
Ms M acknowledged in questions directed to her by me, that the father’s views of a patriarchal system in relation to his family unit were genuinely held views, and that it was the case that the father genuinely and truly believed that he was acting protectively of the children. I must say that I have no doubt that that is the case in relation to this matter and, of course, it gives rise to greater concerns and difficulties with regard to what might be the final arrangements made.
I say that, in the sense that the father is determined that his concerns are genuine and that there is a need to protect these children from their mother and the excesses of her behaviours, as well as the neglect that he assesses is inherent in her parenting. However, as assessed by Ms M, there are no indicators of that inherent inability to provide for, and to meet the needs of the children, or to protect the children, then the difficulty arises as to how arrangements could properly be put in place, which would facilitate a relationship with the mother of a proper and appropriate nature, particularly when the father’s views would be unchanged.
Ms M also was asked by me about the importance of the relationship between these children and their brother, A. It is clear, for example, that they have lived since A’s birth with the child and spent the vast majority of their time with their brother in their household. Ms M noted that there was, of course, significance and importance in the relationship with A, but indicated that in her assessment, the children would be able to continue to develop and foster their relationship with their younger brother, through regular and consistent time, without there being a specific need for there to be an arrangement for the children to live in the same household.
The father also cross-examined Ms M. His approach was an entirely different one, and I must say that I thought Ms M’s answers to the father, and to his questions, clearly indicated an appreciation of the difficulties the father was experiencing, particularly when being challenged as to the consequences of his parenting, when he was, and remained firmly, of the view, that his parenting had been nothing other than exemplary and had protected the children.
When putting to Ms M that he had been marked as a controlling person, but that it might be more accurate to assess it as genuine concern as a father and husband, Ms M acknowledged that she firmly believed that the father was concerned for the children, but went on to say that his behaviours and his control of the children’s relationship with their mother had been without any awareness of the effect on the children and of their relationship with their mother.
She went on to emphasise that to the father with words to the effect:
You can be concerned with the children’s welfare without such overarching controls.
Ms M emphasised that, in her assessment, the father’s behaviours were based on his assessment of concern, but underlying such behaviours was, as she put it, a longstanding mistrust of the mother and a need to control the environment that the children were in. The father then asked a question, which perhaps displayed his own underlying fragility. He said to Ms M:
I don’t sleep at night when the children are not there. I worry about them.
Ms M responded with an indication that she understood that, and that he needed to be aware of the fact that a controlling person, when not in control of circumstances, such as a situation where the children were with the mother and the father was not present, would give rise to high anxiety. It leads to people, such as those in the situation of the father, considering only the worst possible scenarios that could arise, and allowing them to play out in their mind. Ms M noted, toward the end of the cross-examination by the father, that she did not see the father as a bad father but, rather, as one who did not appreciate the concerns that arise as a result of his behaviours.
She acknowledged that all parents, particularly when they do not have the children in their direct care and control, have normal concerns, but in this case, the distrust that the father has of the mother gives rise to scenarios being imagined by him which are, in all likelihood, far worse than anything that could properly have been expected to occur when the mother had the care of their children. Ms M went on to emphasise that all parents want to protect their children and to teach them how to be independent and self-protective, but that the father’s behaviours, particularly with regard to his control of the children’s opportunity to interact with their mother, won’t foster that independent and self-protective knowledge and behaviour in the children and, more particularly, will not give rise to him being able to accept that there is less likelihood of risks for the children, with the mother.
The father, finally, asked Ms M about the, ‘(omitted)’. He particularly raised with her the issue of (omitted), and of the concerns that he had with regard to the children if even their basic needs were not met. Ms M acknowledged that she was aware of the theories of (omitted) and indicated that whilst the father had fears and distrust, there was no real evidence of the mother being unable or unwilling to meet the basic needs of the children.
When the father put to Ms M that the children had made comments, such as those attributable to X, with regard to a meal including vegetables, Ms M, rather astutely, noted that she was not confident that the children are accurate recorders of what occurred in the mother’s house, and if the father was told such things, it did not make them true. The father finally raised with Ms M issues in respect of the mother’s breakdown in her relationship with Mr K, and whether that breakdown in the relationship might be of some significance in relation to her recommendations.
As I noted previously, the father certainly was of the view that the report was of little consequence now as the recommendations for equal time and equal shared parental responsibility were based upon assessments of the mother’s capacity to care when in a relationship with Mr K. Ms M noted, that the primary relationship of these children was with their mother and their father and, whilst the relationship with Mr K, and the interaction that he had with the children was a loss to the children and, no doubt, to the mother, it was not wholly destabilising. He was significant in the children’s lives, but in the assessment of Ms M, the mother had skills which would enable to her to both relocate the children and to make decisions which were appropriate for their care and supervision.
Ms M’s evidence was compelling. Her assessment of the father as being a concerned parent, but one who had let his concerns run rampant was obvious. She noted that the father’s concerns, and the scenarios that he formulated in his mind were his issues and his alone, and it was he who needed to address them. She acknowledged that they were disproportionate to the actual circumstances that existed, particularly with regard to the relationship between the mother and the children and that, whilst the father continued to hold the views that he had, and there was no indicator that he would be in any way able to rein in those concerns, then it would continue to affect the mother-child relationship and, ultimately, would affect the wellbeing of the children.
Ms M indicated that the father’s escalation or exaggeration, at least in his own mind, of the risks to the children arose out of his controlling nature and his continuing need for control, such that he needed to justify his attitudes in relation to the children and, therefore, explained why he had behaved in the manner that he did.
Statements such as “I am an alpha male” and “I steer the ship” are simply indicators of the father’s need to be absolutely in control, and the suggestion that he chose to marry an (nationality omitted) bride as she would be more “compliant”, but that the mother here has finally broken free of that control flies in the face of his need for such control.
Ms M’s evidence in relation to this matter was of particular assistance to me in relation to these proceedings. Her report of September 2016 was comprehensive and nothing that was seen in the evidence countered the assessments that she had made.
It is, perhaps, necessary only to note that in September 2016, Ms M indicated, at paragraph 176, the following:
As observed in 2013, and present day, Mr Haywood disparages Ms Haywood on a range of levels, including her behaviour and intelligence, standard of dress, ability to uphold cultural traditions, spirituality, parenting capacity and co-parental relationship.
She goes on to note that the father’s partner, although not a witness in these proceedings, was interviewed for the purposes of the report, and at paragraph 177, stated:
Ms L supported the father in his interpretations, pointing out the undesirable influences of Mr K’s lisp and “(nationality omitted) communication” on the children’s speech.
Equally, Ms L remarked negatively on the mother’s capacity to uphold Christian traditions and her “very revealing clothing”.
It is noteworthy that in the father’s submissions in relation to this matter, reference was made to the fact that Ms L would never have used the term “Christian” in her communications with Family Consultant, Ms M, but of course, that was never put to Ms M and I accept on the face of it, that it is a significant matter in these proceedings, and a statement that was made perhaps even unknowingly, by Ms L, in her attempts to emphasise the distinct differences and benefits that she says arise from the father’s relationship with the children.
The children’s views of a relationship with the mother are significant. The fact that both children drew family images which depicted the mother’s role as diminished or excluded give rise to concern. Whether the father believes that to be the mother’s real attitude or not, the father’s obligation overridingly, is to ensure that the children’s emotional wellbeing is met and, therefore, to encourage the relationship with the mother and to do all that he can to foster that relationship. There is no indication whatsoever of the father’s capacity to provide for the children and their needs in that respect.
With regard to parenting capacity, the difference between the position of each of the parents could not have been clearer. The mother sought a relationship with the children, but not to the detriment of the relationship that they hold, and should hold in the future, with their father. The father, on the other hand, could not recognise at all any benefits to the children of a proper and loving relationship with the mother and was quick to make assessments without any real basis as to the mother’s lack of capacity to provide for, and to meet the needs of the children.
Ms M noted, in her report, under the heading, “risks to children”, concerns as to the long-term effects upon the children if the circumstances as they then existed and continue, at the time of trial to exist were to persist into the future. She says, at paragraph 205, the following:
The lack of respect is a theme present in each of the family reports. This is a risk to the children. As each matures, one or both parents may come to expect that X, and then Y, are old enough to take a stance on parental disputes. Research indicates that children between the ages of 9 to 12 are most at risk of forming strong alignments with a parent. The children love each parent, and they love their parents’ partners, as well.
It is clear that the circumstances which currently exist must be addressed in order to ensure that the welfare and the interests of the children are able to be more fully and comprehensively attended to. At the present time, the circumstances of these children is of such a nature that there can be little, if any, expectation other than that change must occur or long-term harm will obviously follow.
THE LAW:
I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, relating to the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the child. In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA of 80, a decision handed down on 11 February 2010, his Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136]The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137]Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138]But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139]The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140]No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141]The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142]Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143]“Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144]Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145]Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146]Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147]A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148]The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149]If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150]The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151]An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152]Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75. In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76. We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
Obviously the issue of parental responsibility is one of great significance. Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
In Heath & Hemming (No.2) [2011] FamCA 749, decision of Justice Kent, his Honour when discussing a parenting case, went on to comment about the decided law in respect of parenting decisions. His Honour said, at paragraph 87, the following:
87.Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: -
(a)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(e)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
(a)Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
(b)Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
In paragraph 87, his Honour detailed a checklist of those matters that need to be considered and, of course, they are reflective of the guidance also provided in Lansa & Clovelly (supra).
DISCUSSION:
It is therefore necessary to follow as Kent J described it, “The logical and practical approach”, to meet the statutory imperatives leading to a determination. The first of those has already been dealt with earlier in these reasons where I have detailed the final respective proposals of each other parties and, noting that they are so divergent from each other, acknowledging that there are no alternatives that were identified as being able to be considered.
Accordingly, the first of the real steps to be considered is the consideration of the best interests of these children as set out in section 60CC having regard to the respective proposals. In my assessment there are a number of both primary and additional considerations as detailed in section 60CC(2) & (3) which loom so large as to be overwhelming significant in respect of the determination of this matter.
The first of those considerations is that required to be considered pursuant the provisions of section 60CC(2)(a). There is clearly a benefit to both of these children in having a meaningful relationship with both of their parents. The family report writer spoke glowingly of what the mother could offer these children and to be fair also noted clearly the benefits that flow to the children as a result of their relationship with their father. The difficulty in this matter is that whilst the mother clearly recognises the benefits to the children of a meaningful relationship with both parents, though her position is a little changed following the consideration of the evidence that has fallen, the father has absolutely no appreciation of the benefits to the children of the relationship with their mother or more particularly, the harm that will flow if their relationship is not fostered and developed with their mother.
The father was an honest witness both with regard to his attitude and appreciation or perhaps more accurately lack of appreciation of the importance of the mother in the children’s lives, and also of his beliefs about the world and how people coexist within his world. From the father’s perspective, there is only one person in a relationship who “steers the boat”. There is only one person who is the “alpha” in the relationship. In the father’s world it is the man and choices are made about partners which include consideration of their compliance and willingness to bend to the whim or decisions of the alpha.
The father has no insight whatsoever therefore into the importance to the children and in fact the future significance to the adults that they will grow to be of a meaningful relationship with their mother. From the father’s perspective she has failed to be the parent that he expected but she has also failed certainly in recent times, to be the compliant wife that he married and to be grateful for what he has provided for her. The lack of any appreciation by the father of the fact that the children do not view the world and their mother for his perspective but simply wish a relationship with their mother is telling in respect of the second of the primary considerations that must be considered pursuant to the provisions of section 60CC(2)(b).
The need to protect these children from psychological harm is an overwhelmingly significant consideration weighing in favour of the mother. The father emphasised repeatedly the protective nature of his actions when the mother disengaged from the proceedings brought about as a result of the first application. But the father’s determined intent to not accept the genuineness of the mother’s desire to be parent to these children and more particularly to recognise the benefits to the children of her involvement in their lives means that the father’s stance is directly harmful to the children.
Ms M in her evidence alluded specifically to the lessons that the children would learn from the father and his attitudes. X’s view of women and of the nature of relationships with women would be a reflection of the father’s view and ultimately could have serious consequences for the child’s ability to form appropriate and lasting relationships. More particularly, Y’s view of what a relationship between a man and a woman would not be reflective of equals in that relationship but unfortunately a positon of compliance on her part and acceptance of the will of her partner to the detriment of that relationship.
It is hard to imagine a more damaging psychological consequence for either of these children insofar as their ability to form, establish and maintain relationships as young adults and in to the future. Section 60CC(2A) recognises the importance of the considerations detailed in section 60CC(2)(b) and notes that greater weight must be given to that consideration, the protection of the children, than to the benefits of a meaningful relationship with both parents.
Both of these parents can and should have a meaningful relationship with the children but there can be little expectation that the mother’s relationship with the children will be appropriately fostered and developed by the father when he holds such negative view of the mother and more significantly of the significance or importance of her involvement in the children’s lives. In the view of the father, she is uneducated and unable to provide for even the most basic needs of the children and they need to be protected from her. It is hard to imagine a more damaging position that could be taken by a parent in respect of the importance of the other parent in the life of their children.
Additionally, consideration needs to be given to those matters that arise pursuant to the provisions of section 60CC(3)(a), (b), (d), (f), (g) and (i), being matters which in my assessment are relevant to the ultimate determination of this matter. The views expressed by the children are relevant subject to the maturity of those views but it is clear that the children love their mother and seek a relationship with their mother. That is at least in part reflective of the fact that the father has not completely undermined the children’s desire for a relationship with their mother but it is also clear that whatever relationship the children have with their mother and whatever wishes they might be able in a childlike manner to express with regard to that relationship with their mother exists not because of the encouragement of that relationship by the father but rather exist notwithstanding the attitude of the father.
It is a significant factor to be considered therefore because the children’s desire for a relationship with their mother must be fostered and developed and there significant concerns as to whether that would continue to be the case particularly in light of the fathers intractable position.
Similar considerations arise pursuant to the provisions of section 60CC(3)(b). These children have a positive relationship with both of their parents and that is an important consideration but just as clearly the relationship now and into the future between the mother and the children can only be seen to be at risk if the children were to primarily live with the father when his attitude to the mother is so negative especially with regard to her importance in the lives of these children. Quite simply if there is a positive to be drawn in relation to the children’s relationship with their mother, it is in no way a reflection of the encouragement of the father but rather as I previously indicated exists notwithstanding the attitude of the father.
There are concerns with regard to the mother’s proposals in relation to the future parenting of the children particularly when consideration is given to the fact that the mother’s proposal would result in a significant change in the residential arrangements for the children and of course, the time therefore spent with the father. But it is not an issue which looms so large that it would preclude ultimately an action which will be beneficial to the children and their relationship with both parents. These children will no doubt experience some degree of distress as a result of their current arrangements but ultimately the benefits of an opportunity of a relationship with both parents outweigh any perceived detriment.
Of particular significance are those considerations which must be looked at pursuant to the provisions of section 60CC(3)(f) and (i). Despite the father’s firm belief to the contrary, both of these parents can meet the intellectual needs of the children and are able to meet the more general expectations and obligations that arise with regard to ensuring the children’s day-to-day requirements are met. But the father is entirely unable to even recognise the harm that he does to the children emotionally as a result of the attitudes that he displays and in fact, seems to revel in.
There needs in his world to be a leader, one who steers the boat or is the alpha male. He believes that to be a positive in his character and cares little if at all for what others in our society consider appropriate. He saved the mother, he believes, from her life of poverty and depravation. She no doubt regrets her past if it involved a life as a prostitute but there is no suggestion that it was a decision made by her other than one that arose out of need. The father’s belief that he saved her even though he bought her like a commodity fails to appreciate in any way the dreadful effects of his beliefs.
More particularly, his determination that there is no fault in him, his attitudes or his actions give rise to the greatest concerns that could be imagined in respect of being able to meet the emotional needs of these children. One can only be concerned at the father’s reactions to either child expressing admiration for their mother or even love for her just as she is. The father has no appreciation whatsoever of the consequences of the children of his determined beliefs about the faults of the mother and the refusal to even consider the possible need for change or reassessment of his attitudes give rise to overwhelming concerns about the emotional and psychological harm to these children if there is continued majority time spent with the father.
Similarly, the considerations that arise as a result of the father’s attitudes and beliefs is significant. He believes he is without fault. He believes he protects the children and as long as their physical needs are met there is no necessity to consider the psychological or emotional wellbeing of the children. The father has no appreciation of the responsibilities of parenting at least insofar as they include the need to put the children’s best interests ahead of his own hurt or determined beliefs. The father’s attitude to the responsibilities of parenthood are framed entirely from the perspective of the father’s belief as to his own self-worth and the lack of any appreciation of the children’s need for a relationship with their mother.
Additionally, there is a consideration that is an almost opposite to that which arises pursuant to section 60CC(3)(c). The court is required to consider normally the extent to which a child’s parents has taken or failed to take the opportunity to participate in the decision making process as well as to seek to spend time and communicate with children. The alternative that arises here is a consideration of the father’s determination to preclude the mother from involving herself in the lives of these children.
He did not appreciate at all that a decision as to the children’s school was a matter of significance. It was “obvious” but that was only because it suited the father and his wishes in relation to the school that the children would attend. His evidence, that no significant or long term decisions had been required to be made, was damning of the father and his attitudes to the mother because it had not even crossed his mind that such a decision was one which should have properly been discussed between the parents.
Similarly, the orders that were made by agreement in respect of the mother’s opportunity for time to spent with the children never really took hold because the father exercising his “rights” determined that it was not safe for the children to spend time with the mother in the circumstances that she found herself in.
It is hard to imagine a more damning indictment of the father’s attitude and belief that there is only one view that prevails and that is his.
It is then necessary in light of the findings that I have made to consider the best interests of these children. I do not make specific reference to abuse and family violence in this instance other than to note that the father’s attitude generally has been to totally disregard the mother’s wishes and hopes for a relationship with these children and that there are obvious concerns as I have identified for the psychological and emotional wellbeing of the mother and the children flowing from the father’s behaviours.
The matters that I have referred to in these reasons, weigh so heavily in favour of the mother’s proposals with regard to the future parenting of these children, that it is unnecessary to say other than that every piece of evidence, when considered in light of those matters that arise pursuant to the objects and principles as set out in section 60B(1) and (2) and which are reflected in section 60CC(2), (2A) and (3) fall in favour of the proposals by the mother with regard to the best interests and welfare of these children.
It is necessary to consider the presumption of equal shared parental responsibility that arises pursuant to section 60DA but in light of the findings I have made with regard to the father’s beliefs and attitude to the mother and her role in the life of these children, it cannot be imagined that the basis for rebuttal that arise pursuant to section 60DA(4) are not satisfied. It is clear that any order which presumes that these parents could discuss cooperatively and courteously the issues in respect of the future decisions to be made in respect to these children would be illusory at best and that the father’s attitude to the mother would be such that he would dismiss, unless it accorded with his views, any suggestion of the mother.
The presumption of equal shared parental responsibility cannot stand in this case because of the determined and demanding stance that continues to be taken by the father. There can be no other finding in my assessment than that the presumption of equal shared parental responsibility is rebutted.
Accordingly, there is no necessity to take the step of considering equal time or significant and substantial time pursuant to the provisions of section 65DAA, though of course, such arrangements are not excluded as a result of the consideration of those matters pursuant to the provisions of section 60CC. I am of the view however, that any arrangement which would reflect even equal time in each parent’s household would not be in the best interests of these children as a result of the inability on the part of the father to keep in check and in fact shelter the children from his views and attitude to the mother.
However, these children deserve and will benefit from the father having substantial and significant involvement in their lives provided there is the counterbalance of a relationship with the mother which reflects the importance of her role in the children’s lives and most significantly, protection from the harm that would be caused emotionally and psychologically if the children were influenced by the father without the counterbalance of significant time and interaction with the mother.
In the circumstances, I am of the view that the proposals put by the mother best reflect an opportunity for the children to have a meaningful relationship with each of their parents in a situation where there is a real prospect of balancing the negatives that flow from the fathers influence upon the children by more substantial time being spent with the mother than the father. Accordingly the orders of the court will be as detailed at the commencement of these reasons.
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Judge Coker
Date: 23 May 2017
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