Hodges and Gatley
[2016] FCCA 3486
•8 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HODGES & GATLEY | [2016] FCCA 3486 |
| Catchwords: FAMILY LAW – Parenting proceedings. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA, 65DAA, pt.VII |
| Cases cited: Goode & Goode[2006] FamCA 1346 |
| Applicant: | MR HODGES |
| Respondent: | MS GATLEY |
| File Number: | NCC 3322 of 2014 |
| Judgment of: | Judge Myers |
| Hearing dates: | 10 August 2016, 11 August 2016 and 12 August 2016 |
| Date of Last Submission: | 12 August 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 8 September 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Hannaway Lawyers |
| Counsel for the Respondent: | Mr Murray |
| Solicitors for the Respondent: | Toronto Legal |
THE COURT ORDERS THAT:
That the child X born (omitted) 2011 live with the father.
The parties have equal shared parental responsibility for the said child.
Each party has responsibility for decisions as to the day to day care, welfare and development of the child while he is in their care.
The said child spend time with the mother as follows:
4.1During the New South Wales school terms, each alternate weekend from the conclusion of school Friday until the commencement of school Monday, commencing immediately and thereafter commencing on the second weekend after school terms resumes in each instance provided that during any long weekend such time will be extended to cover the whole of any such long weekend;
4.2Each Wednesday night from collection at school Wednesday and return to school Thursday;
4.3For one half of each of the New South Wales holidays, the first half in even numbered years and the second half in odd numbered years.
Despite the provision of any other order the child shall spend time with the father from 2.00 pm Christmas Day until 5.00 pm Boxing Day in each even numbered year and spend time with the mother from 12.00 pm Christmas Eve until 2.00 pm Christmas Day in each even numbered year.
Despite the provision of any other order the child shall spend time with the mother from 2.00 pm Christmas Day until 5.00 pm Boxing Day in each odd numbered year and spend time with the father from 12.00 pm Christmas Eve until 2.00 pm Christmas Day in each odd numbered year.
Despite the provision of any other order the child will be with the father from 9.00 am Father’s Day until before school on the following morning, and with the mother from 9.00 am on Mother’s Day until before school on the following morning.
Despite the provision of any other order the child shall spend time with the parent he is not living with or spending time with on his birthday and that parent’s birthday as agreed between the parties and failing agreement between the hours of 4.00 pm and 8.00 pm.
The child spend time with the mother and father at other such times as agreed between the parties.
The parties shall forthwith do all acts and things and sign all documents necessary to cause the child to be enrolled into the (omitted) School, (omitted).
Where the child has not commenced school or on a non-school day the parties shall facilitate the collection and return of the child to and from preschool or otherwise to one another at the front of the (omitted) Petrol Station at (omitted) collecting at 3.30pm and returning at 9.00 am or at such other time as nominated for in these orders.
Both parties to have reasonable contact with the child by telephone, email and Skype or other electronic means when they are not spending time, as reasonable given the child’s age and stage of development. Such calls to occur prior on Tuesday and Thursday between 6.30 pm and 7.00 pm, be originated by the party without the child and the spending time parent to ensure the child is available, able to take the call and be given privacy.
Each party will communicate with the other about the child as agreed, but failing agreement, via SMS. Both parties are to maintain an environment of mutual respect and goodwill during such communication and are hereby restrained from being intimidating, abusive, threatening or provocative towards the other or allowing others to do so during any such communication.
The parties will advise and keep the other party advised of a telephone number to be used to communicate with the child within seven days of any change or prior to the child being in their care whichever shall occur first.
Each party is to provide such requisite consents and/or authorities that may be required by any school or extracurricular activity that the child attends, for each party to receive (at that party’s own expense) reports, photographs, order forms, newsletters and such other material as is normally communicated to parents of the child who attend.
Each party is at liberty to attend on and communicate with any person involved in any of the child’s educational, sporting or extra-curricular activities irrespective of whether or not the child is presently living with that party.
When attending the events referred to above, the parties are to follow the reasonable directions of any staff or official during such time and will not harass or intimidate the other party.
Both parties’ details are to be included on any school enrolment form for the child.
Each party provide such consents and authorities to allow any treating medical practitioner or practitioners to provide any medical report and discuss any treatment in relation to the child with both parties.
Both parties inform the other within 7 days of all medical and other appointments made on behalf of the child or any other matter of relevance to the child.
Each party is to contact the other as soon as is practicable upon the happening of any of the following:
21.1The child becoming seriously ill;
21.2The child becoming hospitalised;
21.3The child being involved in an accident;
21.4The child being placed on any ongoing medication;
21.5The child requiring professional advice regarding a medical or dental condition;
21.6Any other matter relevant to the care, welfare and development of the child.
These orders are sufficient authority for each party to obtain (at their cost) information in relation to the children from any medical professional treating the child.
The parents are restrained from:
23.1Discussing or questioning the child about the other parent or events in the other parent’s home in the presence or hearing of the child or permitting any other person to do so;
23.2Denigrating, criticising or speaking ill of the other parent, his or her partner or members of his or her family in the child’s presence, or within his hearing, or permitting anybody else to do so;
23.3Criticising or making derogatory statements to the child about any wishes he expresses regarding the significant people in his life;
23.4Discussing these proceedings, the child’s living or spend time arrangement with the child, in his presence or allowing any third party to do so.
That both parties are restrained from consuming illicit substances or becoming intoxicated within the meaning of intoxication as defined within section 5 of the Liquor Act 2007 (NSW) for 12 hours prior to or during any period in which the child is in that parties’ care.
Should the parties have difficulty communicating or otherwise facilitating these orders the parties are to attend family dispute resolution with a Family Dispute Resolution Practitioner registered with the Federal Attorney General’s Department.
THE COURT REQUESTS THAT the parties have regard to section 65DAC of the Family Law Act 1975 with respect to their communication and exercise of parental responsibility.
IT IS NOTED that publication of this judgment under the pseudonym Hodges & Gatley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3322 of 2014
| MR HODGES |
Applicant
And
| MS GATLEY |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE`
This is a decision in parenting proceedings following a three-day hearing commencing 10 August 2016 in respect of the care and living arrangements of a child, X. The applicant father, Mr Hodges, and the respondent mother, Ms Gatley, seek final parenting orders in respect of their son X who was born on (omitted) 2011. The father seeks orders as set out in his outline of case document that provide:
1.The father shall have sole parental responsibility for the child X born (omitted) 2011.
2.The child live with the father.
3.X shall spend time with the mother as follows:
3.1During school terms, each alternate weekend from after preschool or school on Friday until before preschool or school on the following Monday commencing on the first weekend of each school term.
3.2During the first week of the school term holidays from after preschool or school on the last preschool or school attendance day until 5 pm on the middle Saturday.
3.3In even-numbered years during the first half of the Christmas school holidays from after preschool or school on the last attendance day until the middle of the middle day if there is an odd-numbered day in the Christmas holidays and at 5 pm on the first of the two middle days if there is an even number of Christmas school holidays.
3.4In odd-numbered years commencing at 9 am 19 days before the last weekend of the Christmas school holidays until 5 pm on the last Friday of the Christmas school holidays.
3.5In even-numbered years, X will be with the father from midday on (omitted) until 9 am on the following day and odd-numbered years with the mother from the midday on (omitted) until 9 am the following day.
3.6X will be with the father from 9 am on Fathers Day until before school on the following morning, with the mother from 9 am on Mothers Day until before school the following morning.
3.7There be liberal telephone communication between the parents and X.
3.8The changeover place will be a preschool or school in accordance if it takes place immediately after or before school or at other times as agreed but in default of agreement at (omitted).
3.9 Or otherwise as agreed between the parties.
4.Each party will notify the other party as soon as is possible if X becomes ill and has to see a doctor or other health professional or is admitted to hospital and each will provide relevant medical practitioners with all consents necessary for the other party to be present and discuss X’s medical condition and treatment with the medical practitioner.
5.The parents will keep each other informed of their telephone numbers, residential address and email address and notify the other within 24 hours of any such change.
6.The father will not change X’s residence to any place outside the (omitted) area without the written consent of the mother.
7.The parties are restrained from physically disciplining or verbally abusing X or permitting any other person to do so.
8.The parents will take all steps necessary to ensure that X attends (omitted) primary school at (omitted) in 2017 and the father will pay the school fees for (omitted).
The mother sought orders that are as follows:
1.That the child X born (omitted) 2011 live with the mother.
2.That the parents have equal shared parental responsibility for major long term decisions concerning the child, including schooling, education, religion, medical and culture.
3.That each party has the responsibility for decisions as to the day-to-day care, welfare and development of the child whilst he is in the unsupervised care.
4.That the father spend time with the child as agreed, but failing agreement as follows:
a) if the father lives within 150 kilometres of the mother’s residence, then
i.during the New South Wales school terms, each alternate weekend from after the conclusion of school Friday until the commencement of school Monday commencing immediately thereafter commencing on the second weekend after the school term resumes in each instance provided that during any long weekend, such time will be extended to cover the whole of any such long weekend.
ii.For one half of each of the New South Wales holidays in the first half in even-numbered years and in the second half in odd-numbered years,
iii.Christmas Day:
1. with the father from 2 pm on Christmas Eve until 2 pm Christmas Day in odd-numbered years and with the mother from 2 pm Christmas Day until 2 pm 26 December and
2. with the mother from 2 pm on Christmas Eve until 2 pm Christmas Day in even-numbered years and with the father from 2 pm Christmas Day until 2 pm 26 December.
iv. Childs birthday:
1. On the child’s birthday, the child shall spend time with the parent who is not otherwise spending time with the child for the period of 4 hours
a) on a school day 4 pm to 8 pm
b) on a non-school day 10 am to 2 pm,
v.Mother’s Day/Father’s Day:
1. with the father on the weekend containing Fathers Day from the conclusion of school on Friday until the commencement of school Monday,
2. with the mother on the weekend containing Mothers Day from the conclusion of school on Friday until the commencement of school on Monday.
vi.Changeovers on non-school days shall be permitted as agreed, but failing agreement by the parties or their nominees, delivering and collecting the children from McDonald’s family restaurant at (omitted) at the commencement and conclusion of this time.
(b)If the father lives more than 150 kilometres from the mother’s residence, then;
i.for one half of each of the New South Wales holidays, the first half in even-numbered years and the second half in odd-numbered years,
ii.changeover on non-school days shall be implemented as agreed, but failing agreement by the parent or their nominees, delivering and collecting the children from McDonald’s family restaurant (omitted) at the commencement and conclusion of this time.
iii.As agreed between the parties when the father is spending time in the (omitted) area, providing he has given the mother at least four days notice of his intention to do so, changeovers on these occasions shall occur at McDonald’s family restaurant (omitted).
Electronic communication:
5.Both parties to have reasonable contact with the child by telephone, email and Skype or other electronic means when they are not spending time or as reasonable given the child’s age and stage of development, such calls to occur prior to Tuesday and Thursday between 6.30 and 7.30 pm be originated by the party without the child and the spending time parent to ensure the child is available, able to take the call and give privacy.
6.Each parent will communicate with the other about the children as agreed but failing agreement via SMS. Both parties are to maintain an environment of mutual respect and goodwill during such communications and are hereby restrained from being intimidating, abusive, threatening or provocative towards the other or allowing others to do so during any such communication. The parties will advise and keep the other advised of a telephone number to be used to communicate with the children within seven days of any change or prior to the child being in their care, whichever shall occur first.
Contact details:
7.Each party is to provide such requisite consents and/or authorities that may be required by any school or extra-curricular activity that the child attends for each child to receive at the party’s own expense reports, photographs, order forms, newsletters and such other material as is normally communicated to parents of the children who attend.
School & extracurricular:
8.Each party is at liberty to attend upon and communicate with any person involved in any of the children’s educational, sporting or extra-curricular activities, irrespective of whether or not the child is presently living with that party.
9.When attending the events referred to above, the parties are to follow the reasonable directions of any staff or official during such time and will not harass or intimidate the other party.
10.Both parties’ details are to be included on any school enrolment form for the child.
11.That each party provide such consents and authorities to allow any treatment, medical practitioner or practitioners to provide any medical report or report and discuss any treatment in relation to the child with both parents.
Medical:
12.Each party provide such consents and authorities to allow any treating medical practitioner or practitioners to provide any medical report or report and discuss any treatment in relation to the child with both parties.
13.That both parties inform the other within seven days of all medical and other appointments known on behalf of the child and any other matters of relevance to the child.
14.That each party is to contact the other person as soon as is practicable upon the happening of any of the following:
(a) the child becoming seriously ill;
(b) the child becoming hospitalised;
(c) the child being involved in an accident;
(d) the child being placed on any ongoing medication;
(e) the child requiring professional advice regarding a medical or dental condition;
(f) any other matter relevant to the care, welfare and development of the child.
15.These orders are sufficient authority for each party to obtain (at their cost) information in relation to the children from any medical practitioner treating a child.
Restraints:
16. The parties are restrained from:
a) discussing or questioning the child about the other parent or in the event of any other parent’s home in the presence or hearing of any of the children or permitting any other person to do so,
b) denigrating, criticising or speaking ill or any other parent, his or her partner or members of his or her family in the child’s presence or within hearing or permitting any other person to do so,
c) criticising or making derogatory statements to the children about any wishes they express regarding the significant people in their lives.
17.The father is restrained from leaving the child in the sole care of any third person when he is spending unsupervised time with him,
18.that both parties are hereby restrained from relocating X outside the greater (omitted) area without the prior consent of the other party,
Counselling:
19.that the child X and his parents continue counselling with (omitted), attend any such appointments and treatments and do such things as may be required by the psychologist at (omitted),
Notations:
1.that if a dispute arises between the parties over these orders in the future, that both agree to act with goodwill and attempt to resolve issues through professional mediation prior to taking legal action.
By way of background, the father was born on (omitted) 1986 and the mother was born on (omitted) 1991. The mother is in a relationship and engaged to her partner, Mr M. The mother has two children in addition to X, being B born (omitted) 2012 and A born (omitted) 2015. The father is in a relationship with Ms A, who was born on (omitted) 1989. Ms A has a child C aged seven years who lives with the father and his partner. The father and his partner Ms A are due to shortly have a child together.
The parties commenced a relationship in somewhere between January and March 2010 that ended in May 2010. The mother gives evidence of having been seven months pregnant when the parties separated. On (omitted) 2011, X was born. The mother suggests that following separation, the father did not communicate with her. The mother deposes that despite this, she continued to advise the father of appointments during the pregnancy, including antenatal consultations and ultrasounds. It is the mother’s evidence that the father refused to attend and he did not accept that he was the father.
The mother deposes the father refused to support her during the pregnancy by helping in any way, including providing her with financial support or even buying things for the baby. The mother suggests she sent a text to the father when she found out the sex of the baby and received a less than polite reply with words to the effect:
Stop messaging me about the baby. I told you. I don’t want anything to do with you or that baby.
The mother deposes she stopped contacting the father as a result of that message. Approximately five months following X’s birth, the mother deposes that the father had still spent no time with X. It is the mother’s evidence that when X was approximately three months of age, she was telephoned by Mr R, the paternal grandfather, during which she had a telephone conversation to the following effect:
The paternal grandfather: Would you agree to have DNA tests to confirm Mr Hodges is the father?
It is the mother’s evidence she responded saying:
Yes, I am sure Mr Hodges is the father.
Six weeks after taking the tests, the results were received, confirming that the father was indeed X’s father. It is the mother’s evidence the father contacted her and arranged to spend time with X. Initially, that time was spent at the mother’s home. In approximately October 2011, the mother stopped providing X for time with the father as she formed the view that the paternal grandparents were the only ones seen at changeovers and she believed that X was not actually spending time with the father.
The mother gives evidence that as at August 2011, she was in a relationship with a person by the name of Mr J but became concerned due to what she described as Mr J’s behaviour and decided to leave the relationship. It is the mother’s evidence she ultimately left the relationship for her own safety after taking advice from the police. The mother gave evidence that Mr J became violent when she was moving out from the home that she shared. It is the mother’s evidence that X was not present when this took place. The mother gave further evidence that she then formed a relationship with a person by the name of Mr D between November 2011 and October 2012 and that Mr D is the father of her second child B. It is the mother’s evidence that B has spent no time with his father as Mr D chose not to have a relationship with B.
Interim orders were made by consent at Port Macquarie Local Court on 14 May 2014 that provided for X to live with the father and spend five nights per fortnight with the mother. The father currently resides in (omitted) and the mother lives some 38 kilometres or somewhere between 35 and 40 minutes drive away at (omitted). X has lived with the father for the past three years of his life. Prior to this current arrangement, X lived in what was best described as a highly unsettled arrangement, including living in an equal time regime when he was only 18 months of age. X’s child care arrangements have offered little stability as to place of attendance. Both parties made concessions that they could facilitate X spending five nights per fortnight with the other parent and that transportation for X was not a real issue in the proceedings.
There were two family reports prepared in the proceedings. The first report was prepared by family consultant Ms D dated 15 December 2015. Family consultant Ms D noted that the parties reached agreement on most issues at the day of the interviews. The agreement noted by Ms D was:
·The parties will have joint responsibility for significant decisions of X.
·X will live with the father in the (omitted)/(omitted) area.
·The father will not relocate X outside the (omitted)/(omitted) area, without the written consent of the mother.
·X will spend five nights a fortnight with the mother, being each alternate Friday to Monday and each alternate Wednesday to Friday.
·X will spend half school holiday periods with each party, alternating half each year, to capture the Christmas period. X will spend the Christmas period with the mother in 2016 and each alternate year.
·X will spend time on special occasions with each party.
·Neither party will be able to abuse X or allow another person to do so.
·Neither party will physically discipline X or allow any other person to do so.
·Each party will advise the other as soon as is possible if X attends a GP, hospital or allied health practitioner.
·X will not commence formal schooling until 2017.
·The mother agrees, as X will remain living with the father, that X will attend a school in the (omitted) area.
·X will continue to attend his current preschool in 2016.
The family consultant noted at that time that the issues that remained in dispute were whether X will attend at (omitted) School in 2017 or another school in the (omitted) area where the changeovers would be from preschool and school in the future or whether handovers should occur at (omitted). The family consultant noted there were no issues of concern identified by the family consultant. Under the heading Recommendations, family consultant Ms D set out:
It is recommended the agreement reached between the parties on the day of the interview be reflected in final orders. If by mid-2016 the parties are in dispute in regards to which school in the (omitted) area where X will attend, it is recommended it be dealt with by the Court as a specific issue. Similarly, if the changeover point is in dispute, it is recommended that it be dealt with by the Court as a specific issue. It is respectfully recommended the Court ..... listed to address the father’s application in a case be vacated. It is respectfully recommended that this report be released prior to the directions hearing to enable consent orders to be drafted.
Despite the family consultant having recorded the parties reaching an agreement, the agreement did not translate into the parties providing the Court with terms of settlement, and the Court ordered a further family report to further assist the parties. The family consultant Ms L prepared a further family report dated 27 May 2016. The family consultant noted at the times of the interviews the father was seeking, amongst other orders, shared parental responsibility; that the child live with the father and spend time with the mother alternate Wednesdays to Fridays and alternate Fridays to Mondays and half school holidays.
The family consultant further noted the father sought that changeovers when required occur at (omitted); that the father was applying for restraints on physical discipline of the child; that the father sought the parties not remove the child’s residence outside the (omitted), (omitted) area without the mother’s permission and further the father sought that X attend at (omitted) Primary School in (omitted) from 2017. The family consultant noted at the interview the father stated he did not think shared parental responsibility would work and so he would be seeking sole parental responsibility.
The family consultant noted that the mother was seeking, amongst other things, shared parental responsibility; that X live with her and spends time with the father as agreed, but failing agreement each alternate weekend Friday to Monday and half the school holidays. The mother sought that X commence school at (omitted) in 2017. The family consultant noted both parents being of Aboriginal descent and that whilst the mother identified as being Aboriginal, the father did not. The family consultant noted that the issues in dispute between the parties would be where the child should live and what time he should spend with the parent.
During the course of the assessment, the family consultant Ms L noted the assessment identified further issues of concern being poor communication between the parents, ongoing high level of conflict and its effect on the child, and the need for the child to have stability in his living arrangements and school. During the course of the interviews, the father indicated to the family consultant that the relationship between himself and the mother was sometimes good and sometimes fraught.
The father stated that he was no longer seeking to relocate as proposed in his original application and suggested to the family consultant that X struggled with change and required preparation to cope with change. The father indicated to the family consultant he felt that recent changes had led to X having emotional issues, and he did not feel shared parental responsibility would work as the mother agrees to things and then changes her mind. The father felt medical and dental decisions could be shared, but not day-to-day decisions.
The father stated to the family consultant he had been in a relationship with his current partner for some two to three years and they were due to have a baby in 2016. He noted that he and Ms A had a cooperative co-parenting relationship with C’s father, who also lives in (omitted). Ms A was interviewed. The family consultant noted that Ms A was a (occupation omitted) who works at the (omitted) Hospital. Ms A indicated that she had been in a relationship with the father for some two years. She denied any issues of family violence within her relationship with the father. Ms A viewed the relationship as a long-term permanent one, and she reported that she lived with her older daughter’s father for some five years, and the relationship with him broke down some six years ago.
Ms A reported she had a good relationship with X. She stated there were no issues with X’s behaviour and he was not oppositional with her. She described X as having a good relationship with her daughter, though she saw her daughter as being quiet, whereas X was active and noisy. Ms A commented that she felt that given X’s history and how far he had come, she did not see the value in changing his living arrangements.
The parental grandmother was interviewed. The parental grandmother was noted as being an (occupation omitted). The paternal grandmother explained the history of the matter and said that X had spent a great deal of time with the paternal grandmother starting from when X was five months of age. The paternal grandmother reported to the family consultant that when X was about 14 months of age, he began to struggle with the parenting arrangement. The parental grandmother reported being disappointed when X was ordered to attend (omitted) Preschool, as she felt he had suffered what she described as enough upheaval in his life. The paternal grandmother was concerned of this happening in his final year before starting school, as she felt X needed consolidation of his education.
The mother reported to the family consultant having come from a childhood impacted by physical assault, exposure to family violence and prescribed drug issues mainly involving the maternal grandmother’s partners. The mother described a poor relationship with the maternal grandmother and stated she was unprotective of the mother. The mother left home at age 15 years of age. The mother denied having a criminal record to the family consultant.
The family consultant noted that the mother indicated that she had just finished studying for an (omitted) qualification and had left her job at (employer omitted) and had a new part-time job at (employer omitted). The family consultant noted that the mother’s partner works as a (occupation omitted) at (employer omitted). He works split shifts from about 10.30 am to 2.30 pm and from 4.30 pm until 9.30 pm. The mother’s partner Mr M’s assists with childcare if required.
The mother described her relationship with the father as some days good and some days bad depending on their moods and subject to them having to discuss issues. The family consultant noted that the mother indicated that she and the father used to have a very good relationship, which the mother felt changed when she moved in Queensland in November 2013.
The mother claimed she signed orders drawn up by Legal Aid, as she felt if she did not sign them she would have to wait another six months to see X. The mother mentioned to the family consultant that the judge had raised the possibility of X attending a school halfway between the two houses, but the mother did not think there were any schools in the area. The mother was hoping the parties could share parental responsibility and she stated that she hoped their communication would improve into the future and they would be able to focus upon X’s best interests.
The mother identified as Aboriginal, with both her biological and psychological fathers being Aboriginal. The mother commented to the family consultant she only found out about this recently and only identified as Aboriginal about a year ago and, therefore, had not had much involvement in Aboriginal culture. She noted that Mr M also identified as Aboriginal and had involvement with his Aboriginal culture.
The mother described X and B’s relationship as having their moments. She also noted that they tend to get along well when in big spaces such as in their backyard but tended to be at each other when in confined spaces. The mother was asked about Mr M’s relationship with X. It was apparent that X at times seemed not to like Mr M and would sometimes rebel against him. X would not always acknowledging or listening to Mr M and then ignoring him. The mother suggested that in those circumstances Mr M would have to raise his voice at X.
The mother indicated to the family consultant that she sought X be in her care so he could be raised with his siblings. The mother felt they had the right environment for X. The family consultant noted that the mother and her partner work. The mother explained that she had family support from Mr M’s family to assist them if needed. The mother noted to the family consultant that X was clingy and attention-seeking with her, stating that she felt this had happened since May 2014, whereas prior to that he was independent, resilient and tough.
Mr M was interviewed. Mr M advised he had been in a relationship with the mother since January 2014 and indicated to the family consultant he viewed the relationship as a long-term relationship. Mr M indicated that he and the mother have one child together, A, and Mr M also regards B as his child. Mr M reported a childhood impacted upon by his father’s drug use and family violence perpetrated by his mother. Mr M’s mother separated from his father and Mr M thereafter has had no contact with him. Mr M’s mother re-partnered. He has two sisters and two stepsisters. He has regular contact with his mother and sisters. He denies having a criminal record. Mr M identifies as Aboriginal through his father.
Mr M reported his relationship with X varies, and suggested that sometimes X does not listen to him. On those occasions Mr W uses a stern voice, and then X listens. Mr M advised the family consultant that he and X do do activities together like (hobbies omitted). Mr M suggested that X was listening better now and was being more helpful around the house. He described B as missing X, as does A. Mr M felt having X live with him would make their family complete.
X was interviewed. X was noted as being some five years and four months of age. He presented as a fairly reserved child to the family consultant. The family consultant suggested X was reluctant to discuss issues about his family. The family consultant noted that a psychologist’s report on X was prepared by Ms H from (omitted) dated 24 October 2014, where X was assessed as having an adjustment disorder with mixed disturbance of emotions and conduct, and possible compromised attachment.
When X was asked where he went to school, he described it as “the Aboriginal one”. X stated, “I don't want to go there.” He commented to the family consultant that he wanted to attend his sister’s school in (omitted) and he did not want to go to the (omitted) school. When asked further as to why he wanted to go to (omitted)’s, he said he gets to play with C. It was clear X has a close relationship with C the family consultant noted. X was asked by the family consultant about his relationship with B, and he indicated that B attends the Aboriginal school and he did not want to go there with him.
X was able to identify to the family consultant who lived in each of his parent’s houses. However, he did not appear to want to discuss his relationship with various family members, such as Mr M, so this was not pursued by the family consultant. When asked about the father and his partner having a new baby, he became quiet, looked worried and acknowledged that it would be different. The family consultant noted that it may be that X is unsure what effect the birth of this new baby will have on him and his relationship with the father.
X was asked by the family consultant about whether or not his parents got on together, and he replied no. And when asked how he knew this, he said, “Because they don't live with each other.” X went on to explain that, “Mum used to live with dad because dad used to be her husband.” The family consultant noted that X commented, “They don't talk much to each other,” but noted that, “Dad talks softly and mum talks loudly.” When asked by the family consultant what he liked doing at each parent’s home, X responded, saying, “Playing Xbox” at the mother’s with B and at the father’s home with C. X commented that at his old preschool, he used to get into trouble, adding that at B’s school he does not get into trouble. The family consultant noted X could count to 14 and knew his colours, but appeared to struggle to write his name.
The family consultant suggested that X has a very good relationship with his paternal grandparents and has spent a significant amount of time in their home in the past. The family consultant opined that it is likely that they had provided a stabilising and safe environment for him. The family consultant proposed X’s relationship with B is difficult at times noting both parents’ reports, with the father claiming X complains that B hits him. The family consultant suggested the mother noted a challenging relationship between the two children, with stronger elements of sibling rivalry and attention-seeking behaviour by X.
The family consultant suggested that X’s views were developmentally appropriate as he is a young child who has experienced many changes in his living and schooling arrangements. The family consultant further noted he has also been interviewed by a number of family consultants and at least one psychologist. It is difficult to know if X’s views have been influenced by exposure to conversations by adults or whether they are a reflection of his own real thoughts.
The family consultant noted the observations between the parents and X. In observations between the child and the mother, X was noted to ask about B’s whereabouts a couple of times before B joined the observations, as he could hear him in the next room. X enjoyed playing with the mother and continued to seek her out once the other children entered the room. When B entered the room, he was very happy to see X and constantly sought to get X’s attention. X was not very responsive to this. In observations between X and the father, X was observed to be very settled and demonstrate a mutually warm and close relationship with the father. X was noted to interact well with the father’s partner and was very responsive to the paternal grandmother.
The family consultant under the heading “Evaluation” set out that X’s early experiences of living in a shared care arrangement, one or two weeks about, then exclusively with one parent and then no time with the other appears to have led to some attachment issues and possibly anxiety-related symptoms. X requires what the family consultant describes as a reparative environment to assist him to overcome the effects of multiple changes in care and arrangements. The family consultant suggested it was important that X has stability and structure to his living arrangements that will allow him to settle into school, make friends and not be under stress.
The family consultant suggested it would not be appropriate for X to attend a school midway between both parents, as this would not allow him to make friends and engage in after-school and social activities in his local geographical area. The family consultant suggested it would also involve travel for X every week.
Both parents sought that X live with them and both discussed with the family consultant seeking orders that X spend five nights a fortnight with the other parent. The family consultant discussed this with both parents, and raised her concerns about an order midweek, given the distance between the parents, some 40 kilometres, X commencing kindergarten, him having a need for stability and a reparative environment, given the history of his care arrangements. It was acknowledged by both parents that they want X to have a good relationship with the other parent. It was stressed by the family consultant that orders need to be child-focused and not made to appease parents, no matter how well-intentioned their motives are.
The family consultant suggested X needs to live predominantly with one parent, attend his local school and spend alternate weekend time in the school holidays with the other parent. Weekday time with the other parent was not recommended, where the family consultant suggested it would be very tiring for X having to start kindergarten and be expected to cope with two days of travelling to and from school at least 35 minutes each way. The Court notes however that in the capital cities including Sydney, children often travel more than half an hour to get to school. If one lived at the top of the (omitted) Highway in (omitted) and had to go to a school perhaps down the (omitted) Highway as far as only (omitted), one could sit in the traffic on the (omitted) Highway for 35 minutes. 35 minutes in the view of the court is an extremely short distance. It might not be in (omitted), but for the greater part of Sydney, where the largest number of parents and children live in this state, a 35-minute drive to school is not a long one.
The family consultant suggested it is unlikely the parents will be able to guarantee X’s on-time attendance at school under such a plan. The court notes that the parents live in a geographical area where there is not a significant amount of traffic. They live in what might be described as a remote area, where there are long stretches of road without traffic lights. The court does not expect the parents will be caught in traffic, and on that basis it is the view of the court the parents could be trusted to get the child to school on time.
It is suggested by the family consultant to compensate for a reduction of midweek time, it might be appropriate for the child to spend more time with the other parent in school holidays if that parent could have extra time off work. The family consultant suggested if X lived with the father then X could attend (omitted) school in (omitted). If he lives with the mother, then he could attend (omitted) Public School. It is in the view of the court important for a decision to be made as to where X attends school in 2017.
The family consultant noted X expressed a view that he wanted to go to the school in (omitted) with his stepsister C and that such views should not be given great weight due to X’s young age and his reluctance to talk about his current living arrangements and his relationship with various family members. The family consultant suggested that from the report of both parents it was clear X’s relationship with B is characterised by significant sibling rivalry, and X appears to feel he must jockey for his position the mother’s household. The family consultant suggested X has a somewhat-difficult relationship with Mr M, and it is possible that as X does not respond to Mr M, Mr M raises his voice in a way X perceives is yelling.
The family consultant opined there seemed to be no concern for X in the father’s household and X appears to have a good relationship with the father and the father’s partner and her daughter. The family consultant suggests that it would appear that C and X have a more harmonious relationship with X and B. I will revisit that topic later in the judgment when I go through the evidence given during the course of the proceedings, where the evidence is suggestive that this is not the case.
The family consultant opined the impact of the father’s proposal on X would be that he will remain in a home where he is happy and well settled where X has easy access to his paternal grandparents, who are very important to him and provide stability. The family consultant suggested the impact of the mother’s proposal on X would see him spend most of his time in a household where he has somewhat-fraught relationships with Mr M and with B.
Paragraphs 101, 102 are at least in part the foundation upon which the family consultant makes her suggestions as to what should happen in the proceedings by way of recommendations. It is the family consultant’s view of the parties having shared parental responsibility that this would usually be the best outcome for a child. However, the family consultant suggested in this matter as the parents’ level of distrust is high, and their communication is poor, it may not be in X’s best interest and sole parental responsibility should rest with the parent he resides with. It was noted by the family consultant the father made false statements to the mother about the reason for X spending time with the paternal grandparents in the last school holidays.
Under the heading “Recommendations” the family consultant recommended that the parties have shared parental responsibilities relating to the subject child unless the court finds they are unable to communication respectfully and effectively, and where they cannot, sole parental responsibility should rest with the father. It is recommended X live with the father and spend time with the mother alternate weekends from Monday to Friday and time in the school holidays as agreed and failing agreement at least half.
It was clear from the father’s evidence given during the proceedings the father does not seek to live in (omitted). During the period in which the father lived in (omitted) he worked in a family business first working for (employer omitted). The father gave evidence during the course of his cross-examination that he saw the mother drinking, taking illicit drugs and smoking. The father gave evidence that during the periods the father was working the mother gave X to his parents to be looked after. X was diagnosed with ADHD as a child.
In August 2011 X lived with the father before the mother came back into his life. At that time X lived with the father’s parents in (omitted). In March 2012 the father gave evidence that X lived between the parties on a two-week on-off arrangement and this arrangement did not last long. X was at that time in a fairly disruptive living arrangement. X has been in some five different preschools. The first preschool with the mother, the second at (omitted) with the father and paternal grandparents. The third enrolment was by the father at a preschool at (omitted) for two weeks. The fourth preschool at (omitted) with the father. The fifth where the father changed X to the (omitted) family day care. The sixth was by order of the court that the child attending (omitted) preschool. The father suggested he made some of the changes because the preschools did not suit his working hours.
After the father moved to (omitted), X was having problems with his behaviour. The father gave evidence X was living with the father and mother at that time on a fortnightly basis from Saturday to Sunday and then Friday to Sunday each fortnight. The father took X to see a psychologist when X was at (omitted), and he blamed the mother for X’s behaviour. The father suggested that he was a more stable option for X because the mother had moved from place to place and relationship to relationship. The father was at (omitted) when X was born. The father then moved to (omitted) and then back to (omitted) and then to (omitted) and then to (omitted).
The father was asked how many times the mother had moved. The father suggested eight times, including a move to Queensland that the mother disputed. The father suggested that his moves were less noteworthy because he did not move because of the end of a relationship. The father conceded that the mother had moved on one occasion because of family violence. The father suggested in cross-examination he was concerned the mother would try and align X against him by telling X that he should not love the father. The father conceded that X did like spending time with the mother, but suggested that X did not like B. B is in these proceedings the little half-brother of X. The father has never seen X and B play together. The father accepted that B is much smaller than X. The father felt that X and B fight and squabble between one another. The father gave evidence that he felt X and B were fighting too much, although the father conceded that he had not seen the children together at any stage.
The father indicated that his partner has a daughter, C. She was seven years of age. The father proposed that C and X would fight less because C is a girl. The father does not suggest that the mother’s partner hit X but suggested that he yells at him. The father conceded that X has said that Mr M yells at him because he and his brother B are yelling at one another. The father suggested that X and C do not fight. Having heard the father’s evidence, the court cannot accept the suggestion by the family consultant at paragraph 102 that the impact of the mother’s proposal would see X spend most of his time in a household where he has a somewhat-fraught relationship with Mr M and his younger brother B. Instead the court accepts that X has a usual or typical relationship with his stepfather and brother.
At the time X was taken to see Ms H, he was then only spending time with the mother three nights per fortnight. At the time of the report of Ms H X had then been in three different preschools and then had been in (omitted) School for some six months. It was conceded by the father that in 2011 X began calling the paternal grandmother “Mum”. To say that X was in a situation of significant change in households and childcare arrangements between birth until he was three years of age is an understatement.
The father said that his greatest concerns are the way X is treated by the mother’s partner, where the father alleges the mother’s partner yells at X and B fights with X, taking his toys or hitting him. The father conceded that X has said the mother’s partner sometimes yells when he and B are fighting and at other times yells. However, the father does not know what the mother’s partner yells about. The court forms the view the father has failed to appreciate that sometimes siblings fight, noting that the father conceded that he used to fight with his siblings. The father suggests that X never fights with his stepsister. The father conceded that he is not sure how much X and B actually fight. The father told the court that X has a wonderful relationship with C.
The father agreed that his application would see X spend only some four days and six nights per four-week month with the mother. The father suggested it would be better for X to have a closer relationship with C than a closer relationship with B. The father agreed he sent X to his parents for a week during the last school holidays. The father did not think to send X to the mother for a week, telling the court X has a close relationship with his parents. The father said that he would be concerned if X were to be with the mother for a week. The father suggested during cross-examination that X should have a relationship with B but limited to four days per month. The father told the court he lied to the mother and told the mother he sent X to stay with his parents for a week because of behavioural issues. The father could offer no believable or plausible explanation as to why he would tell the mother he sent X to his parents because of behavioural issues. The father told the court that X co-slept with him until 2015.
The father told the court that X is excited by the upcoming birth of the father’s child. The court however notes paragraph 82 of the family report on the topic of the new sibling setting out X became quiet, looked worried and told the family consultant it would be different. The court accepts, however, that X will warm to his new sibling. The father said they speak about the baby at home in an excited way and now X is excited and talks about it. The father seemed to the court to have little insight into the importance of X’s relationship with his brother B.
The father took X to see a second psychologist in the earlier part of this year. The father failed to put that in his affidavit, although it is apparent that the mother was involved in that appointment. The father suggested that X was safer in his home away from yelling and fighting. The father told the court X remaining in his household would enable X to bond with the new baby. It is an agreed fact that X was present when the father assaulted Ms N. The father said that he moved to (omitted) as it was a cheaper place to live.
The father gave evidence of doing a lot of activities with X, including going fishing. The father indicated he was aware that X goes fishing with Mr M, did not know whether X kicks a ball with Mr M or goes swimming down at the lake with Mr M. The father conceded X sometimes finds it difficult to express he has been having a good time at his mother’s home, where he is aware the parents have been fighting with one another. The father conceded that X is at times aware that the parents are having disagreements or not getting along.
The father was asked about those paragraphs within his affidavit about X’s behaviour at preschool where X lashed out at other children. The father was unable to offer an explanation or clarify the events that relate to those matters found at paragraph 49 of his affidavit. The father conceded that X had bitten two children at the (omitted) preschool. The father told the court he was not sure whether X had hit another child at preschool. He could not recall whether he had been told X had hit another child. The father believes that B is negatively affecting X’s time enjoying preschool. The father suggested that B was hitting X and he had seen a letter from the preschool that confirmed the same. A call was made for the letter. It was ultimately produced. The letter did not make any mention of B in fact hitting X. The letter in fact produced from (omitted) Preschool suggested X had sought out B, had sat with him at lunch and there was no suggestion that B hit X at all. The letter forms exhibit B in the proceedings.
The father conceded there was family violence between himself and his former partner. The father was charged and convicted of common assault. An AVO was made for the protection of the father’s then partner Ms N. On that topic, the father suggested to the family consultant that the incident had been twisted the wrong way: that he had wanted to leave the house but that his partner had refused to give him the phone, wallet, keys and also X. The father denied hitting or choking his former partner but admitted to pushing her to get X.
The father has a child D aged three years to that partner. The father told the family consultant he was exploring options to spend time with D. The father has not spent any time with D since that occasion. COPS material produced on subpoena suggests that the father pushed Ms N to get his wallet. The father conceded he pushed Ms N when he was trying to stop X hitting one of her other children. The father suggested in cross-examination he did not threaten to kill his former partner Ms N. The father otherwise agrees with the contents of the COPS entry save except for the father tapping on the car window with a candle.
The father has not seen D since the night of the incident and the father cannot remember whether he did or did not refer to his partner Ms N’s past abusive partner Mr A. The father suggested he did not take the flyscreens off. The COPS entries that form exhibit B were read and considered by the Court. The father suggests that E, being his former partner Ms N’s child, would hit X and that X would kick E. E was some 18 months older than X. The Court has considered the father’s criminal history forming exhibit D in the proceedings.
The cross-examination of the father revealed he was well less than candid with the family consultant about the family violence perpetrated upon his former partner Ms N. The father conceded that he told the mother a lie about not working until after the father’s new baby was born. It would appear the father chose to lie at times to the mother. The father lacked insight into the appropriateness of lying to the mother telling her X was sent away with his parents because of behavioural issues when of course he had none.
The father sought to enrol X in the (omitted) preschool centre. X was ultimately enrolled. The father’s mother completed the enrolment form. Instead of the enrolment form providing for the father as the first contact and then the mother as the second contact, the form provided that the father was the first contact and the paternal grandmother was the second contact. The father indicated he could not remember if he included the mother as a contact person on the (omitted) preschool enrolment.
The father agreed that X tended to ignore the father at the paternal grandparents’ home. The father suggested that X wants to have a close relationship with the paternal grandparents. The father gave evidence in cross-examination that he believed X would suffer if he had to live with the mother because of B and Mr M. The father gave evidence that he had sought to relocate X to (omitted) because he could get work up in (omitted) with his father. The father conceded the relationship between X and the mother was important in 2015 and the father therefore amended his application whereby he no long sought to relocate as at March 2016.
The father’s partner Ms A said X will object to doing things he is told from time to time and he will not necessarily listen to things that he is told to do by the father and the father’s parents. On the topic of the relationship between X and C, Ms A said C is very important in X’s life because he can play with C and she is very patient and easy to get along with. According to Ms A, X sees C as an elder sibling. C has lived with X in his household for one year and three months.
X talks about the new baby daily, according to Ms A. Interestingly, Ms A gives evidence X was fighting with C hitting her with chairs in March of 2016. Ms A said X became violent towards C about four weeks prior to the interviews with Ms D for the preparation of a first family report. Ms A told the Court that the violence perpetrated by X dropped off over the Christmas break and then his behaviour deteriorated again.
Ms A gave evidence that the father would send X to his room for punishment. When asked about the frequency of X hitting C, Ms A gave evidence that X would hit C once per week and that this went on between March and April 2016. When asked about what he hit C with Ms A gave some evidence that he would hit her with a lounge, which the Court takes to be some sort of child’s foam lounge, and there was discussion about X attempting to hit C in the genital area.
Ms A said X would throw whatever he had in his hands: paint brushes, bikes, blocks. Ms A said she would ask X why he was hitting C in the genital area and he spoke to Ms A about kicking C in the balls. Ms A indicated that if X did not have something in his hands he would slap. This evidence is in stark contrast to what Ms A is reported to have told Ms L in that X’s behaviour was not oppositional with her and she described to the family consultant that X had a good relationship with C.
Ms A told the Court she went into great detail with Ms L about X hitting and slapping C including seeking advice from the family consultant as to whether she should tell C to punch X back. The Court notes there is no mention of that conversation in the family consultant’s family report. X is close on five years seven months. C is almost eight years. Ms A gave evidence of being completely committed to living in (omitted), that she has always lived in (omitted) and her mother lives in (omitted). Ms A gave evidence that C and X both go and see the paternal grandparents.
The parties exclusively use text messages to communicate. The mother accepts that she has occasionally stated in an affidavit that the father made a unilateral decision to move to (omitted). The mother in actual fact sent an email stating she did not mind if the father and X moved to (omitted). The mother conceded that she had relisted the matter in court telling the Court she had not agreed to X being placed in the long day care when in fact the text message to the father indicated she consented.
The mother suggested in her affidavit that she stopped X spending time with the father in 2011 is not correct when considering the material produced on subpoena from X’s child care centre.
The mother agrees that she had separated from her former abusive partner Mr J in August 2011. The mother at that time placed X into the father’s care. X stayed with the father for some three months and nine days.
The mother conceded that she stopped time between X and the father between March 2012 to September 2012 because she felt the paternal grandparents were doing most of the parenting. The mother did not know where the father was living at that stage. The actual fact was the father was living at his parents’. The mother raised the issue of who was parenting X with the father. The mother gave evidence that the father’s parents were doing the parenting. The mother ceased time with the father stating she did it despite knowing X would be heartbroken. The mother suggested in cross examination that she is not sure whether she would do the same over again.
The mother gave evidence that in September 2012 the mother was happy to allow X to spend week on week off time with the father even though X had spent no time with the father for the past six months.
The mother explained she changed her view of the father based upon the fact he was in a relationship with Ms N. X was then 17 months of age. The mother accepts X was confused by the arrangements the parties made for his care. The mother gave some evidence that she is on the real estate property management site TICA that might cause her some troubles obtaining rental accommodation in the future. Although the Court notes the mother has stable accommodation at this time. Before 6 November 2013, the mother indicated she had considered moving to Queensland and notified the father she had thought about doing the same by way of text message.
The mother gives evidence in her affidavit that prior to the move to Queensland she had reached an agreement the week about arrangement would continue and the parties would meet at a midway point. The father was not agreeable to the mother relocating with X as set out in the text messages forwarded to the mother by the father. The mother’s suggestion that the father agree to a week on week off arrangement cannot be maintained in light of the text message communication.
On 30 November 2013, the mother was in Queensland and demanded by text message that the father give X to her and set out in an email the father would not see X again. Despite evidence by the mother suggesting the move to Queensland was only for a while, the text message to the father was, in the view of the Court, clear that the mother had moved to Queensland on a permanent basis. The mother is disingenuous at paragraph of 47 of her affidavit where she suggested the father was refusing to allow X to spend time with her noting the threat made by the mother that the father would not see X again.
On 14 May 2014, final orders were made by consent in the Local Court that X would live with the father and ultimately spend time with the mother for five nights per fortnight. The consent orders form exhibit M in the proceedings. The mother gives evidence in her affidavit about various communications between the parties by way of text message. The mother concedes that the communication set out at paragraphs 58 to 65 were not as bad as she might have suggested after reviewing a series of text messages shown to her in cross examination.
The mother suggested at paragraph 63 of her affidavit the father sent her a very aggressive text message that stated:
You lying bitch. Why did you change your name and address on X’s records? Trying to cover up his leg fracture in 2013? Won’t do you any good.
The mother conceded the father never sent a text message to her calling her a “lying bitch” and that she had misinterpreted the nature of the text message sent to her by the father.
The mother gave some evidence about there being an assault upon the mother by her sister. In actual fact, the police took out an ADVO against the mother in respect of the alleged assault. The mother admitted that in late October 2013 she had a physical altercation with a room-mate. The mother went to punch the roommate. The mother missed and ended up hitting a doorframe hurting her hand. The mother admitted to there being pushing and shoving. The police were not called. The mother conceded B was in the home during the incident but suggests that he did not see the altercation.
In July 2012, the mother was living in (omitted). At the time the mother posted a comment on Facebook to the effect that she wanted to punch a person down the street in the face. The mother suggested she could not recall the post but accepted that she used to post things on Facebook like wanting to punch somebody. The mother in 2012 admitted she posted on a Facebook post:
If anybody knows Mr R, tell him he’s a dead cunt and I’m after him.
The mother gave evidence that it is not the way she speaks anymore. The mother admits she is ashamed about the way she used to speak. The mother accepted that she posted on Facebook that she was intending or going to burn down the (omitted) Police Station.
The mother suggests between 2011 and 2012 for some twelve months, she was what she describes as “not in the right state of mind”. The mother told the Court in cross examination she saw her doctor and was prescribed antidepressants. The mother states that she now sees a counsellor, and while she did have anger issues, she no longer has anger issues.
The mother accepted in cross examination that X can be a defiant child at times and that he and B can hit one another from time to time. The mother gave evidence in cross-examination that sometimes B hits X once or twice a visit each Wednesday through to Friday. The mother told the Court that the boys both fight with one another and it is not just one way.
The mother accepted in cross-examination that Mr M does raise his voice at X. The mother suggests that sometimes X likes Mr M and other times he does not. If Mr M does not do what X wants X is disappointed and tends not to like him. If X and B are hitting one another, Mr M will sometimes intervene, and X does not like it.
The mother stated to the Court that X tries to play the parents off against one another. The mother indicated that if there was ongoing significant conflict between X and B or X and Mr M, the mother would seek professional help from a counsellor to manage that conflict.
The mother gave evidence Mr M is able to take X to school in the mornings and that she can obtain assistance from Mr M’s mother. The mother gave evidence Mr M could facilitate taking X to school even if X attended the school that C attended. Mr M said he was aware that, on one occasion, X pulled on B’s penis in the shower. The parents spoke about it. It appears to the Court on the evidence that this is an isolated incident and an innocent one.
Mr M was cross-examined and gave evidence that he rarely sees X and B hit one another. Mr M works five days per weeks on shifts and starts at 10 am. Mr M gave evidence that he can and will arrange his shifts around the children. Mr M told the court he does not yell at X. He has shouted at X if they are outside in the backyard. Mr M does not accept X is afraid of him. Mr M indicated he believed that the challenges with X have existed because of different parenting styles, but things have now largely settled down.
The Court accepts that X has a normal relationship with Mr M and accepts the evidence of Mr M where he suggested that children do not like their parents when they are getting in trouble, but do like them when they are not. The evidence suggests that X’s behaviour can be challenging at times, and the Court accepts that such behaviour would, at times, cause Mr M to raise his voice at X and B to prevent them fighting in a usual sibling way.
The Court turns to those matters set out at section 60CC. The Court finds that there is a benefit to X having a meaningful relationship with both parents in this case. The Court considers the primary consideration with primacy over all others being the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence in both households.
The behaviour between X and B, where there is hitting, is not such that the Court finds X is at risk of suffering physical or psychological harm as a result of abuse, neglect or family violence. The Court also finds that the relationship between X and Mr M is an ordinary relationship where Mr M does seek to intervene in circumstances where two children, quite young, are fighting in his household.
The Court finds that X will not suffer physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence in either parent’s household. The Court considers the views of X in that he seeks to attend C’s school. X did not seek to talk about his relationship with the parties. The Court gives X’s views limited weight in circumstances where he has a limited level of maturity and level of understanding.
The Court considers the nature of the relationship between the child and each of the child’s parents. X has a good relationship with his mother and a good relationship with his father. He has a good relationship in the view of the Court with the father’s partner, Ms A, and also, in the view of the Court, has an ordinary – what is probably a good relationship with Mr M, noting that the father conceded that X does do some fun things with Mr M, and noting that the father conceded that X does find it difficult to express to the father he has been having a good time in the mother’s household.
The Court considers the nature of the relationship between X and C. It is a good relationship. It is one of stepsiblings. They fight. They are close in age. It is expected that they would. They are siblings, and there is some rivalry. The nature of the relationship between X and B is also a usual sibling relationship where there is rivalry. X is the older of the two siblings in that relationship, as compared to the younger of the two siblings in the relationship between he and C.
It is suggested that C has an easier-going nature perhaps than B, however B is a very small, younger child, but not by much. They are both important relationships and they are both relationships where there will be sibling rivalry. And it is important for children that they deal with that sibling rivalry, and it cannot be dealt with if X is isolated from either of his siblings. The sibling relationships are important ones, and they will be there for each other ultimately, when their parents pass away, they will be there to comfort one another.
It is important the Court give weight to the importance of the relationship of X with both of his siblings. X has a younger sibling in the mother’s household and will have a younger sibling in the father’s household. Those will be secondary relationships, at least, for the time being. Because those younger siblings are so young, those relationships will develop over time and become important to X. That can only take place if there is time. It is the view of the Court that X should not be isolated from one household because it will affect those relationships.
Neither parent has failed to take the opportunity to participate in making decisions about major long-term issues in relation to X, to spend time with X or to communicate with X. Both parents, in the view of the Court, have fulfilled their obligations to maintain X. The Court must consider the likely effect of any change in X’s circumstances, including the likely effect on X of any separation from either his or her parents or any other child or other person.
Both parties seek X live with them. Both parties seek X spend less than equal time and less than substantial and significant time with the other parent. The parties seek that the time spent with the other parent and the other siblings is each alternate weekend. If I made either set of orders, there would be a significant change in X’s circumstances such that it would detrimentally affect his relationship with his siblings.
X has had periods of turmoil and change for most of his life. He has been in and out of homes, he has been in an arrangement where the care between the parents has affected his attachment. Ms L gives evidence in her report as to the impact of the arrangements of change on X thus to date. He is a little boy who does have anxieties and attachment issues, according to Ms L. If the Court made the orders sought by the mother, it is the view of the Court it would detrimentally affect X’s attachment. It would further exacerbate his anxieties.
If the Court made the orders sought by the father reducing the mid-week time between X and the mother, X and Mr M, X and B, that would detrimentally affect X’s relationship with those persons. It would detrimentally affect what should be an ordinary, normalising sibling relationship with B where X is the big brother of his younger brother, of some eighteen months difference. That relationship will normalise with time. It will not normalise with absence.
It is the view of the Court that leaving the current arrangement in place where there is five nights a fortnight between X and the mother’s household will least impact upon X. To change the arrangements as suggested by the mother will, in the view of the Court, create significant change and significant disturbance to X in circumstances where he has attachment issues and anxieties.
To make the change suggested by the father to reduce the mid-week time, in the view of the Court, will detrimentally affect his ongoing sibling relationship, which will be an important relationship long-term. He still is just a little child, and B is even younger. They are just little children that need to sort out their differences. And, to be honest, given their age, it is not unusual that they should fight. One would think it would be unusual if they did not, noting the evidence of the father with respect to his siblings in that they did also.
The impact of reducing the mid-week time would also detrimentally affect X’s relationship with Mr M. The Court does not accept that Mr M has a bad relationship with X. Mr M is seeking to try and assist the mother is disciplining the children in circumstances where X and B are fighting, an ordinary set of circumstances where parents tell their children to stop fighting, something repeated throughout this society, day in, day out, where there are siblings in a household.
The Court considers the practical difficulty and expense of X spending time and communicating with a parent, and whether that difficulty or expense would substantially affect the child’s rights to maintain personal relations and direct contact with both parents on a regular basis.
The family consultant, Ms L, suggests that the 35-minute distance between the parties is too great for there to be mid-week time, that it will be disruptive for X to spend 35 minutes in the car to drive to his mother’s home one night a week and back, that there may be difficulties with the parents getting X to school on time. The Court does not accept that evidence. 35 minutes is not too far in the view of the Court, noting where the parents live. In any case, it is a 35-minute drive. They do not live in the middle of the Sydney CBD. They live in a country area where there would be limited traffic, where a 35-minute drive means a 35-minute drive.
The Court does not see the drive between the parents as causing a significant barrier to there being mid-week time. It is not a significant difficulty or expense that should prevent the Court considering, for instance, substantial and significant time as defined by subparagraph (3) of section 65DAA.
The Court does consider the issues to do with the school. Ms L gives evidence that X should attend the school closest to the parent with whom he lives because it will enable the child to form relationships and bonds with other children in that school. X has given some evidence that he wants to go to the school where C goes. It is clear on the material that for the moment X probably has a better relationship with C than with B. It does not mean that the relationship with B is a poor one; it means that his relationship, if X rates them, is probably for the moment a little better with C.
X is a child. He is going to school, and he wants to go to a school where his big sister goes. It is the view of the Court children know if they feel safe. Children know if they might want to have an older sibling to have comfort from. And while X is only very young, and whilst his level of maturity and understanding is limited, given his age, the Court does take it into account and gives X’s view some weight – not a great deal, but a little – because X says he wants to go to the school where his big sister goes, and it is important to him.
The Court takes into account the recommendations of the family consultant that X should go to a school close to where he might live because it will enable him to have relationships with other children and develop friendships close to the school where he lives.
The Court considers that there will not be any difficulty or expense of X spending time with the mother if X attends the (religion omitted) school close to where he lives. The mother gave evidence to the effect it would not cause a difficulty, that is, she could still facilitate mid-week time if X attended the (religion omitted) school.
The Court must consider the capacity of the child’s parents, any other person including a grandparent, to provide for the needs of the child, including their intellectual and emotional needs. The parents have historically had difficulties. There has been family violence in previous times in their life, much earlier than now. The Court might have at one time suggested there are capacity issues. The Court does not suggest that anymore.
Having heard the parties’ evidence, having heard their views about the changes in their lives, what the parents do now as compared to what they did before, the Court is of the view that both parents have the capacity to provide for the needs of the child X, including his intellectual and emotional needs, and, to that extent, so do the stepparents. They are involved in X’s daily life. They can provide and do provide for his needs from time to time.
The paternal grandparents have also been a source of provision. They have, when needed, provided for X’s needs, including his intellectual and emotional needs. X has a good relationship with his paternal grandparents. So the Court is not concerned in this matter about capacity. In fact, the Court finds in both households there is capacity to provide for the needs of X, including his intellectual and emotional needs.
There is nothing in the maturity, sex, lifestyle and background of X or his parents the Court gives weight. X is an Aboriginal child. His father is of Aboriginal heritage. His mother is of Aboriginal heritage. The mother’s partner is of Aboriginal heritage. But to be Aboriginal is more than just being of heritage; it is also whether one engages and identifies in one’s community and, is recognised by one’s community.
The mother seeks to be part of the Aboriginal community. She finds her culture important, whereas the father does not. It is the view of the Court that X will be able to enjoy his right to his Aboriginal culture by spending time with the mother in her household. That is, he will be exposed to that culture and exposed to people who enjoy that culture through spending time with the mother. The orders that the Court proposes to make will not impact upon X’s rights to enjoy his culture.
The Court considers the attitudes to the child and responsibilities of parenthood demonstrated by each of the child’s parents. It is true to say that the family consultant was highly critical of the care arrangements the parents made for X over his young lifetime. It is the view of the Court they were doing the best they could in circumstances where they did not have guidance or a parenting after separation rule book as to what they might or might not do.
At times, the parents sought mediation. They entered into a parenting plan. They tried. They entered into consent orders at a local Court. They were doing the best they could in circumstances where perhaps they did not know the arrangement they did place X into caused him disruption and caused him difficulties.
The Court finds that the parties have a good attitude towards X and they had a good attitude towards parenting. They have a good attitude towards the responsibilities of parenthood. There has been family violence historically in the father’s household. X was exposed to the same some time ago. The Court has heard from Ms A. She was a strong witness who indicated that there is no family violence in her relationship with the father. The Court accepts that evidence.
While there was family violence in the father’s household previously, it is something that has happened historically. The Court is not aware of there being any current apprehended violence order in place between the parents or any other person of currency. The court knows they have existed historically, but those AVOs have expired.
Whilst there may have been risk issues previously with respect to violence, violent behaviour of the mother, issues with the mother’s sister, one of her room-mates, with the father and his previous partner, those issues have dissipated over time, such that when the Court considers the issues of family violence and apprehended violence orders that are historic, the Court does not find that the parents lack capacity or otherwise will expose the child to risk.
The Court considers that it is preferable to make orders that would be least likely to lead to the institution of further proceedings and intends to make final orders today in that regard. The Court considers the provisions of section 61DA and has regards to the recommendations of the family consultant. There is presumption in favour of equal shared parental responsibility rebutted by reasons of family violence, abuse of the child or another child in the parties’ household or otherwise where the Court considers that it is not in the best interests that the presumption applies.
Having regards to the parties’ communication, the Court considers the parties’ communication has been bad but is currently not that bad. The parties are doing well enough in circumstances where they are separated. The Court does not rebut the presumption in favour of equal shared parental responsibility by reasons of abuse. The Court does not rebut the presumption in favour of equal shared parental responsibility by reasons of family violence. The Court does not rebut the presumption in favour of equal shared parental responsibility having had regard to those matters set out at section 60CC(2)(a) and (b), (3)(a) through to (m).
The Court finds that it is in the best interests of this child that the parties have equal shared parental responsibility for X. Save and except for this, the Court intends to make an order about the school at which X will attend, notable the (religion omitted) school close to where the father lives.
The Court considers the provisions at section 65DAA, having maintained the presumption in favour of equal shared parental responsibility. The Court firstly considers whether or not equal time would be in the best interests of the child.
Noting the child’s significantly disrupted past, noting what Ms L refers to as issues of attachment, his anxieties and otherwise some difficulties generally with X’s behaviour, the Court finds that it would not be in the best interests for X to live in an equal time arrangement in-between these parties. It would cause him significant ongoing anxiety in the view of the Court, as well as attachment issues, being those referred to by Ms L.
The Court considers subparagraph (5) of section 65DAA. The parties live 35-minutes drive apart. The Court does not propose to make a finding about whether, in these proceedings, it is too far apart for there to be equal time when neither party seeks it. And the Court has found that it is not in the best interests of X that there be equal time.
The Court does consider the current and future capacity to implement an arrangement for equal time. The parties have been able to do so previously, and the Court expects they probably could do it again. The parties have the current and future capacity to communicate sufficiently to resolve difficulties that arise in implementing an arrangement for equal time. However, as I have said, really, it becomes unimportant about practicalities in circumstances where the Court has already found that it is not in best interests of X that there be equal time.
The impact an arrangement of that kind would have on the child would be detrimental where it would exacerbate his anxieties and it would affect his attachment. So the Court also finds that it is not reasonably practical that there be equal time. The Court turns to substantial and significant time as being that defined at section 65DAA(3) as including:
(a) the time the child spends with both parents includes:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of particular significance to the parent.
As I have said, neither party seeks an order for substantial and significant time. Both parties seek an order well short of that. It is the view of the Court that it is important that X and the mother are involved in X’s daily routine. It is important that X does his homework at his mother’s home.
It is important in this relationship that X is in a position where he is at the father’s, doing the hard work, where it is the father who tells X, “Sit down and do your homework. Go upstairs, get in the shower, get bathed, get dressed, get to bed. You’ve got to go to school the following morning. Get out of bed. You’ve got to go to school.” Those are the things that would happen rarely in the mother’s household if the court made an order for less than substantial and significant time.
Noting issues of attachment and anxiety and generally X’s behavioural issues, the Court would be concerned that it would put X in a position where there would be such a difference in the households that it would cause X an ongoing problem with respect to his relationship with the father. That is, X may start to develop a view that the father’s house is more strict than the mother’s in circumstances where the mother would not need to be as strict if there was no mid-week time.
Currently, there is no evidence before the Court that suggests that X finds one household more difficult than the other in circumstances where he did not talk about the parents. I hear no complaint in the proceedings about X loving one household greater than the other because, currently, X is in a regime where he is exposed and the parents are exposed to X’s daily routine.
It is the view of the Court that it is important that X spends time not only with the mother on weekends and holidays, but also mid-week time, time that does not fall on weekends and holidays, so that X is exposed to the daily routine in the mother’s household so that he finds himself part of both households, rather than living in one and being a visitor in the other.
The Court considers that, having regard to the definition of substantial and significant time, that it is in the best interests of X to spend substantial and significant time with the mother, having regard to those matters set out at section 60CC(2)(a) and (b), (3)(a) through to (m). The Court considers the provisions of section 65DAA(5). The parties do not live too far apart for there to be substantial and significant time. The mother gave evidence that she can facilitate X attending upon his school, attending upon a school that is close to where the father lives, the (religion omitted) school. 35-minutes drive is not too far apart for there to be mid-week time.
The parents have the current and future capacity to implement an arrangement of substantial and significant time. The mother gave evidence of it. The evidence was not challenged. The parents currently facilitate it. It currently works. There is no suggestion in these proceedings that it does not, that is, with respect at least to facilitation. The parents have the current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind because, largely, X will be collected from school and returned to school/preschool.
The Court has read the communication between the parties. There have been emails. They do email. Not all of their communication is that bad. Some of it is actually all right. Some of it resolves issues. And the parties have demonstrated historically that they are able to reach agreements. They have had a parenting plan. They have entered into consent orders.
The parties have found themselves here in difficult circumstances, where they are seeking an order that X lives with both of them because they both love X and they both want him as a permanent member within their household. The parents have the current and future capacity to communicate with each other and resolve difficulties that might arise from implementing that arrangement.
The impact the arrangement would have on X would be a positive one. It would facilitate X maintaining a normal sibling relationship with B. It would facilitate him being part of the mother’s household, being exposed to daily routines. It would have a positive impact because X would not begin to see a difference in households, where one household is a good household, where, X might say “We can do anything we want because there is no mid-week time. We don’t need to get up early to go to school once a week. We don’t need to do homework at Mum’s house once a week”. X will be afforded a balanced view of both households if there is substantial and significant time. The impact on X’s relationship with B will be a positive one, if there is substantial and significant time.
Having considered those matters set out at part VII of the Family Law Act, having taken into account the case of Goode & Goode, particularly looking at sections 60CC(2)(a) and (b), (3)(a)–(m), section 61DA, section 65DAA, having read and considered the parties’ affidavits, having read and considered the material tendered during the course of the proceedings, having heard the submissions of the parties, having read and considered the outline of case documents, having considered the evidence of the family consultant the Court finds that the following orders are in the best interests of the child.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Myers
Date: 27 April 2017
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Procedural Fairness
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