Jacobs and Halse
[2009] FMCAfam 741
•12 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JACOBS & HALSE | [2009] FMCAfam 741 |
| FAMILY LAW – Parenting orders – consideration of the “rule” in Rice & Asplund – consideration of the evidence of witnesses and in particular, the truthfulness of the mother – determination that there has been no significant or substantial change in circumstances – finding of intent on the part of the mother to thwart the operation of previous consent orders – consideration of variation of existing orders for particularity without variation of intent of previous orders. |
| Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) 39 FLR 295 |
| Applicant: | MS JACOBS |
| Respondent: | MR HALSE |
| File Number: | TVC 749 of 2007 |
| Judgment of: | Coker FM |
| Hearing dates: | 4, 5 & 11 June 2009 |
| Date of Last Submission: | 11 June 2009 |
| Delivered at: | Townsville |
| Delivered on: | 12 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Betts |
| Solicitors for the Applicant: | Eureka Legal Pty Ltd |
| Counsel for the Respondent: | Mr Fellows |
| Solicitors for the Respondent: | S R Wallace & Wallace |
ORDERS
That all previous court orders which have been made be revoked.
PARENTAL RESPONSIBILITY AND COMMUNICATION RELATING TO AND ABOUT THE CHILD
That the parents have equal shared parental responsibility for the care of [Z] (born in 2005).
That each parent shall have the sole responsibility for the child’s day-to-day care, welfare and development during such times as the child are in the respective parent’s care.
That without limiting the parental responsibility of either parent pursuant to paragraph 2 of these orders, each parent shall keep the other parent informed of and shall properly consult with the other with respect to any significant parenting issues affecting the child. For the purpose of these orders, a “parenting issue” is:-
(a)any medical or health matter concerning the child;
(b)any medical or health matter affecting either parent which may effect the ability of that parent to care for the child;
(c)matters relating to the education of the child, including, but not limited to, the choice of school and curriculum and the provision to the other parent of all school reports, school photographs and all communications from the child’s school other than with respect to routine or administrative matters;
(d)disciplinary matters other than of a trivial nature;
(e)matters concerning the social development and sporting activities of the child;
(f)any change of place of domicile or telephone number of either parent;
(g)any intended change in the surname by which the child are commonly known from that which appears on the child’s birth certificate;
Both parties are to keep the other informed of a current contact address and telephone number and will inform the other parent in writing within 48 hours of any change.
That this order authorises the child’s medical practitioner or any health care practitioner to communicate directly with either parent any matter concerning the child and is to provide copies of any reports or any other written information available pertaining to the child at each of the parent’s request.
That the mother and father are to inform the other parent of any medical emergency and serious injury involving the child as soon as reasonably practical.
That the parties will communicate about issues regarding major long-term issues, and any proposed changes or swaps to the contact arrangements, medical matters, or other incidental matters regarding the child by way of email.
That the use of email is only to be used for the purposes of communicating in relation to matters pertaining to the child and not for any other purpose.
That the parties do not denigrate the other, or members of the other parent’s family to, or in the presence or hearing of the child, and will use their best endeavors to ensure that no other person denigrates the other parent or members of the other parent’s family to or in the presence of the child.
That the parent (the 1st parent) delivering the child to the other parent (2nd parent) at the commencement or conclusion of contact, will return with the child all clothes, personal items, and toys (if any) provided by the 2nd parent.
LIVING AND COMMUNICATION ARRANGEMENTS FOR [Z]
That [Z] live with the father in Mackay.
That the mother communicate with [Z] at all such times that can be agreed on the basis that the mother initiate the call to the father’s landline or mobile telephone number between 6.00pm and 6.45pm on each of the following occasions:-
(1)On each Wednesday and Sunday when [Z] is in the father’s care;
(2)In the event that [Z] is with the father on any of the following special occasions, [Z]’s birthday, the mother’s birthday, Mothers Day, Christmas Day and Easter Sunday.
That the mother’s family be able to spend time with and telephone [Z] when he is in the care of the father at all reasonable times.
From court hearing until [Z] commencing preparatory schooling
That [Z] spend time with the mother at all such times as can be agreed but in particular for the first two weeks out of each calendar month commencing on Sunday and concluding on Sunday
When [Z] starts school
That [Z] spend time and communicate with the mother at all such times as can be agreed but in particular on the following terms:-
(a)In the event that the mother is in Mackay at such places and times that can be agreed but in particular for the May long weekend and June long weekend;
(b)For school holidays as follows:-
(1)For the entire Easter gazetted school holidays for the first two years in every three year period commencing in 2010. Such holidays to commence at 1.00pm on the first day following the conclusion the school term with the period to end at 1.00pm on the day prior to school recommencing;
(2)For the entire June/July school holiday period for the second and third years in every three year period, with the first of such holidays to be in 2011. Such holidays to commence at 1.00pm on Saturday and conclude at 1.00pm the Sunday before returning to school;
(3)For the entire September/October school holiday period for the first and third years in every three year period, with the first of such holidays to be in 2010. Such holidays to commence at 1.00pm on Saturday and conclude at 1.00pm the Sunday before returning to school;
(4)For the first three weeks of the gazetted Christmas school holidays in 2010 and every even year thereafter. Such holidays to commence on the first Sunday following the conclusion of school until 1.00pm on the Saturday three weeks later;
(5)For the last three weeks of the Christmas school holidays in 2011 and every alternate year thereafter from 1.00pm Saturday until 1.00pm the Saturday prior to the commencement of school.
LIVING AND COMMUNICATION ARRANGEMENTS FOR [X] AND [Y]
That the children [X] (born in 1992) and [Y] (born in 1997) live with the mother, Ms Jacobs.
That [Y] (and [X] if desired) spend time and communicate with the respondent, Mr Halse, at all such times as can be agreed but in particular on the following occasions:-
(a)By telephone on the basis that the respondent initiate the call to the children’s mobile’s directly or the children initiate the call to the respondent and the applicant not hinder the children communicating with the respondent. Specifically the respondent intends to communicate with the children on the following special occasions between 6.00pm and 6.45pm on each of the following occasions:-
(1)On Sunday, at least once a month;
(2)On each of the birthdays of [X], [Y] and the respondent together with Christmas Day and Easter Sunday when they are not with the respondent.
(b)Up to a further two weeks in the gazetted school holidays in each calendar year with the time to be taken when [Z] is with the respondent. The respondent will liaise with [Y] and the mother regarding holidays prior to confirming when [Y] shall travel. He shall confirm the arrangements for [Y] to travel to Mackay and advise the mother no less than two months prior of the commencement of such time. The mother will ensure that she does not hinder [Y] spending time with the respondent.
CHANGEOVER ARRANGEMENTS
That for the purposes of changeover and facilitating the arrangements in clause 16 unless otherwise agreed the:-
(a)Father or the father’s nominated representative shall deliver the child to the mother at Brisbane airport at the commencement conclusion of each period of time the mother spends with the child;
(b)Mother shall collect and deliver the child to Brisbane airport at the commencement and conclusion of each period of time with the child;
(c)Father shall pay the costs associated with the airfares from Brisbane to Mackay at the conclusion of each period of time when the mother shall spend time with the child;
(d)Mother shall pay the costs of all other transportation between Brisbane and Mackay for the father and for the child including the father’s two flights required to collect or drop off the child;
(e)Each parent provide a copy of the flight itinerary to the other parent no less than four weeks prior to each trip;
When [Y] is also going to be spending time with the respondent the arrangements described above shall be that same with respect to travel occurring by plane. However the arrangements will change in that where [Y] is traveling with [Z], [Z] will not travel accompanied by the respondent. The cost of [Y]’s flights shall be shared as follows:-
(a)The respondent shall pay for the costs associated with getting [Y] to Mackay;
(b)The mother shall pay for the costs associated with getting [Y] to Brisbane.
That each parent ensure that when booking the flight, they book a flight that arrives in Brisbane late morning and leaves to return to Mackay in the early to mid afternoon;
In the event that either the mother or father are in a position to facilitate their trip (eg delivery or collection of the child or children by car to either Mackay or Hervey Bay, they shall notify the other parent no less than 5 weeks prior to the scheduled trip.
That pursuant to s.65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
THE COURT FURTHER DIRECTS THAT:
Each party file and serve a financial statement within 17 days of the date of these orders.
Each party have liberty to apply within 28 days of the date of this order in relation to any point of clarification in relation to the orders and in respect of costs.
IT IS NOTED that publication of this judgment under the pseudonym Jacobs & Halse is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 749 of 2007
| MS JACOBS |
Applicant
And
| MR HALSE |
Respondent
REASONS FOR JUDGMENT
I should say at the outset of the giving of the reasons in relation to this matter that I have agonised over the decision that I am required to give. As will perhaps become evident from the many comments that I intend to make in relation to the proceedings, I have grave concerns in relation to both parents and to their capacity to fully, appropriately and properly provide for the needs of the child. It is one of those tragic situations where, in my assessment, and I would think, to a significant degree, supported by Mr Jordan, the report writer, both parents have failed to fully and appropriately appreciate the obligations and the responsibilities that they had in relation to their son and have let a multitude of other considerations come to the forefront, all of which have affected their capacity to properly and fully parent this child.
At the beginning it seemed so very different. As I understand it, on
9 July 2007, a matter of only three weeks or so after an initial application was filed, final orders were made in relation to arrangements with regard to the parenting of [Z]. Those orders were in these terms:
(1)That the orders made on 22 June 2007 operate until the mother relocates to Hervey Bay or until 1 August 2007 whichever is the earlier. Upon the mother relocating those said orders shall be revoked and the following orders operate instead.
(2)That the child, [Z], born in 2005 live with the father, Mr Halse.
(3)That [Z] spend time and communicate with the mother, [Ms Jacobs], at Hervey Bay, at all such times as can be agreed but in particular on the following terms:-
(a)For the first two weeks out of each calendar month (excluding December) commencing on 5 August 2007 and on the first Sunday in each month thereafter;
(b)For two weeks in December
(i) In 2007 and every odd year thereafter commencing on the 1st day of the month;
(ii) ii. In 2008 and every even year thereafter commencing on the 14th day of the month.
(c)The changeover at the beginning and conclusion of each two week period shall occur on Sunday at 1 pm:
(4)That each parent be at liberty to telephone [Z] at all reasonable times.
(5)That the parents share equally the costs associated with the child’s travel to spend time with each of the parents and specifically:
(a) That the mother pay for [Z] to travel from Mackay to Hervey Bay at the commencement of the mother’s time with [Z];
(b) That the father pay for [Z] from Hervey Bay to Mackay at the conclusion of the mother’s time with [Z].
(c) If no agreement can be reached between the parties with respect to travel and flight times then the parties shall meet half way between Mackay and Hervey Bay for changeovers, namely at the Mobile service station in [address omitted], Rockhampton.
(6)In the event that the parents are in the same town or city as [Z] on Christmas Day or on [Z]’s birthday in any year each parent will be entitled to spend half of that occasion with [Z].
(7)Neither party is to:
(a) denigrate the other parent in the presence of the child; or
(b)discuss these proceedings with or in the presence of the child.
(8)That each parent have the sole responsibility for the child’s day to day care, welfare and development during such times as the child is in the respective parent’s care.
(9)That the parents shall have equal shared parental responsibility for [Z] in relation to long term major issues including education, health, religion, the name by which [Z] is ordinarily known.
(10)Both parents must provide written notice to the other parent at least two months prior to any changes in their living arrangements which would make it significantly more difficult for [Z] to spend time with either parent.
(11)That [X] and [Y] live with the mother and spend time and communicate with Mr Halse in accordance with the wishes of [X] and [Y]. It is noted and expected that [Y] will spend time in the school holidays with Mr Halse.
(12)It is agreed between the parents that [Z] will return to live in Mackay prior to commencing prep provided the father is residing in the Mackay district at that time. If the mother also chooses to return to Mackay at that time, then [Z] will live with each of the parents on a shared care week about basis.
In particular, those orders provided for [Z] to spend time and to live with each of his parents. The orders specifically were in these terms, that [Z] live with the father and that [Z] spend time and communicate with the mother. However, it was also provided, that the time with the mother was almost the equivalent of the time to be spent with the father. The orders provided in order 3 that the child spend time with the mother for the first two weeks of each calendar month, excluding December, in which there were specific arrangements placed, commencing on 5 August 2007 and on the first Sunday of each month thereafter. That worked and continues to work with some occasional difficulties up until now.
However, the real issue that has given rise to further proceedings are the provisions of order 12. It provides for [Z] to return to live in Mackay prior to commencing preparatory school. That would be in 2010. The mother is not agreeable to that particular arrangement and in fact suggests, obviously by the filing of the new application in relation to these proceedings, that the best interests of the child would be met more particularly by orders being made in terms that she now seeks.
Accordingly, between 9 July 2007 and the fresh application filed on 5 September 2008, a period of about 14 months, the father at least, proceeded upon the general understanding that [Z] would be returning to his care, one would presume, at the conclusion of the Christmas school holiday period 2009/2010. The mother's proposals as detailed, however, in her most recent material indicate that that is not the case.
Handed up to the Court at the commencement of these proceedings in Mackay, was a copy of a document headed "Response". It in fact is not, of course, a correct document, the mother being the applicant in relation to the proceedings, but it was accepted that they set out precisely the orders that the mother seeks in relation to arrangements with regard to the future parenting of [Z].
(1)That all previous court orders that have been made are revoked.
(2)That the parents have equal shared parental responsibility for the care of the child [Z], born in 2005.
(3) That each parent shall have the sole responsibility of the child’s day to day care, welfare and development during such times that the child is in the respective parents care.
(4)That without limiting the parental responsibility of either parent, pursuant to paragraph 2 of these orders, each parent shall keep the other parent informed of, and shall properly consult with the other, with respect to any significant parenting issues affecting the child.
(5) Both parties are to keep the other informed of the current address and telephone number, and will inform the other parent in writing within 48 hours of any change.
(6)That this Order authorises the child’s medical practitioner to communicate directly with either parent on any matter concerning the child, and is to provide copies of any reports and any other written information available relating to the child at each of the parents request.
(7)That the mother and father are to inform the other parent of any medical emergency and/or serious injury involving the child as soon as reasonably practical.
(8)That the parties will communicate about issues, regarding major long term issues, and any proposed changes to the contact arrangements or medical matters or any other incidental matters regarding the child by way of email.
(9)That the use of email is only to be used for the matter of communicating in relation to matters pertaining to the child, and not for any other purpose.
(10)That the parties do not denigrate the other, or members of the other persons family, while in the presence of the child and will use their best endeavours to ensure that no other person denigrates the other parent or members of the other persons family, while in the presence of the child.
(11)That the parent delivering the child to the other parent at the commencement or conclusion of contact, will return with the child’s own clothes, personal items and toys provided by the other parent.
(12)[Z] live with the mother in Hervey Bay.
(13)That the father communicate with [Z] at all such times that can be agreed, on the basis that the father initiate the call to the mother’s land line, or mobile telephone number between 6 and 6:45pm on each of the following occasions:
(a)On each Wed and Sun when [Z] is in the mother’s care;
(b) In the event that [Z] is with the Mother on any of the following occasions, [Z]’s birthday, the father’s birthday, Father’s Day, Christmas Day and Easter Sunday.
(14) That [Z] spend time with the father when can be agreed and in particular on the following terms:
(a) For the entire Easter gazetted school holidays for the first two years in every three year period. Such holidays to commence at 1pm on the first day and following the conclusion of the school term with the period to end at 1pm on the day prior to school recommencing;
(b)For the entire June/July gazetted school holidays for the first two years in every three year period. Such holidays to commence at 1pm on the first day and following the conclusion of the school term with the period to end at 1pm on the day prior to school recommencing;
(c)For the entire September/October gazetted school holidays for the first two years in every three year period. Such holidays to commence at 1pm on the first day and following the conclusion of the school term with the period to end at 1pm on the day prior to school recommencing;
(d)For the first three weeks of the gazetted Christmas school holidays in 2009 and every odd year thereafter. Such holidays to commence on the first Sunday following the conclusion of school until 1pm on the Saturday, three weeks later;
(e)For the last three weeks of the Christmas School holidays in 2010, and every even year thereafter, from 1pm Saturday until 1pm the Saturday prior to the commencement of school.
(15)That the children [X], and [Y], live with the mother.
(16)That the children [X], and [Y] spend time with and communicate with the respondent at all such times that can be agreed, but in particular on the following occasions:
(a)By telephone every Sunday, at least once a month, and on each of the birthdays of [X] and [Y] and the respondent, together with Christmas Day and Easter Sunday when they are not with the respondent.
(17)That for the purpose of changeover unless otherwise facilitating the arrangement unless otherwise agreed:
(a)The mother, or the mother’s nominated representative shall deliver the child to the father at Mackay airport at the commencement/conclusion of each period of time the father spends with the child;
(b)The father shall collect and deliver the child to the airport at the commencement and conclusion of each period of time;
(c)The father shall pay the costs of the associated with the airfares of Brisbane to Mackay and return at the conclusion of each period of time, when the mother shall spend time with the child;
(d)The mother shall pay the cost of all other transportation between Hervey Bay and Mackay.
(18) Pursuant to section 65DA(2), the particulars of the obligation these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in annexure A and these particulars are included in these orders.
The father's amended response, filed 18 May 2009, set out the orders that the father sought in relation to these proceedings. Those orders are detailed at some length as, of course, are those orders sought by the mother and they address a multitude of issues, including arrangements that might be in place between now and the end of the Christmas school holiday period 2009/2010 and what the father says are the appropriate arrangements in relation to the parenting of [Z] subsequent to those school holidays. In other words, when the child commences preparatory school, preschool or otherwise.
Both of the parents propose that there should be orders for equal shared parental responsibility. It is appropriate that that should occur, though in light of some of the further comments that I intend to make in relation to the matter, it is a real case of whether in fact the parties, jointly “talking the talk”, will actually be able to “walk the walk”. The reason for that is obvious. The communication between the parties is, until right now, appalling. There have been difficulties, no doubt both ways, but in particular I gain the distinct impression, and I will comment upon it at some length, that the mother has been far more likely to be uncommunicative, or downright misleading, in every manner of the exchanges that she has with the father, in relation to the matter.
Otherwise the parents appear to jointly be in agreement with almost all that is to occur except, of course, for with whom [Z] should live. The father says that it should be with him. He says that that is in accordance with what was agreed in the consent orders of July of 2007 and is, he says, in any event in the best interests of the child. The mother says that the child should live with her. She relies upon a number of considerations in that regard including, of course, the issue of siblings in her care and the fact that there is a significant relationship in existence between [Z] and his older brothers [X] and [Y].
They again are significant in relation to the determination of this matter and I will comment further in respect of their circumstances during the reasons.
Both the mother and the father acknowledge, that if the child is living with one or other of them, then in that event, there should be very significant opportunities for [Z] spending time in each parent's household. The father's orders are perhaps a little more precise in that regard, but the general arrangement which appears to be proposed by both the mother and the father, is for [Z] to spend two out of each three years of each school holiday with the other parent. The basis upon which the father proposes it, however, is that there should be some variation so that, for example, it is not a situation where the father has the child in his care for the entirety of the school holiday periods in two years and then no school holidays, or at least mid year school holidays, in the third year, but rather that there is some form of rotation so that Easter, June/July and September/October are divided on the basis of two out of each three being spent with the mother and one being spent with the father.
It shows perhaps, just a little more thought in relation to what arrangements should appropriately be put in place with regard to the parenting of this child.
Before addressing, as I obviously must do, issues in relation to the evidence of the mother and the father, I intend to touch upon the evidence of others who were required for cross-examination and also, at least insofar as it might be relevant, the evidence which was not the subject of cross-examination, being the evidence contained within the affidavits of Ms C and Mr T.
Two witnesses were relied upon on the part of the mother, other than of course herself. The first of those was her partner, Mr B. Mr B is a [occupation omitted]. He now resides with the mother in Hervey Bay and is, of course, supportive of the mother in relation to the orders that she seeks with regard to the parenting of [Z]. Mr B was cross-examined at some considerable length in relation to issues with regard to the commencement of his relationship with the mother. The reason for that is obvious. The mother was challenged repeatedly as to the circumstances of her relationship with Mr B, when it may or may not have come into existence and how, if at all, it has affected the course of these proceedings in particular.
The mother says in her material, though it appears now generally to be conceded as an inaccurate statement, that she met Mr B in January of 2008. That is, of course, wholly inaccurate. She has known Mr B for a period, she says, of about 10 years and he said in evidence of about eight to 10 years. They in fact holidayed on a cruise to Hawaii in September of 2007 and, in fact, the arrangements with regard to that cruise were formalised in May of 2007. The mother was not simply mistaken in relation to those arrangements. The mother was clearly well aware of exactly what transpired in respect of the development of her relationship with Mr B. She was untruthful in that particular respect, as she was untruthful in such a great amount of the evidence that she gave in relation to these proceedings.
Mr B, I thought, tried to be a little more precise in relation to the evidence, though in some respects he also fell short. For example, it was clear from the evidence that he gave that the relationship between he and the mother had commenced, at least to a level where they contemplated the purchase of land and the construction of a home, by the latter part of 2007. Quite clearly, that was not deposed to in the material. However, Mr B was adamant that his relationship with the mother was one that really simply grew, perhaps from the cruise in September of 2007 until they considered themselves more of a couple by the latter part of 2007.
I simply cannot accept that that was the case. No matter what the social mores might be, or the circumstances of the times that we live in, one does not commence, out of the blue, a two week holiday with a person with whom there has been little, if any, communication, of any real nature for years on end. The mother's evidence, in any event, was to the effect that the interaction with Mr B had been sporadic at best, perhaps years apart, and that the call to Mr B in May of 2007 was out of the blue as a result of two other possible persons accompanying her, her sister and a friend, not being available.
I found that evidence wholly unbelievable. More particularly, Mr B's statement that such arrangements were made, as best he could assess, only a few weeks before September 2007 were obviously, both from the evidence given in relation to the matter and the documentation made available in relation to the matter, inaccurate.
Mr B, however, was at least a little more honest and open in relation to the evidence in that regard, in that he did speak of more regular exchanges and correspondence between himself and the mother over time. His evidence that the relationship, and perhaps what might be described as, the intimacy of the relationship, did not commence until the latter part of 2007, was again, in my assessment, unbelievable and somewhat misguided. My own observations, albeit from a person somewhat older than them, is that the relationships nowadays between younger persons are couched more in terms of their physical intimacy than their emotional intimacy.
There is nothing right or wrong in relation to what form the relationship between Mr B and the mother might take. What is wrong is the fact that it was simply the subject of lies. They were not truthful in relation to their relationship and it gave rise to concerns in respect of so much of the other evidence that was sought to be relied upon.
In passing, I note that the father in cross-examination was asked whether he trusted the mother and he quite honestly responded that he did not trust her. He said that that was based on the concerns with regard to the relationship that developed between Mr B and the mother, leading up to the trip overseas and that further events that had occurred subsequent to separation continued to reinforce the concerns that he had with regard to trust. The father's position in that regard was wholly understandable. The mother was untruthful in almost all of the evidence that she gave.
Mr B was at least less than full and frank in relation to the evidence that he gave, particularly with regard to the development of the relationship between he and the mother. The truly tragic event or circumstance of that, of course, is that society witnesses the breakdown of relationships in almost one half of all relationships that are formed. It is not something unusual, but it is unfortunately, a fact of life. Why there would be such continued untruths in relation to the matter is beyond understanding, certainly by me, but what it does reflect is the determination on the part of the mother to continue the farce that is the statements she makes in relation to her relationship with Mr B, her reasons for travel to Hervey Bay, and so many other matters upon which she was so far short of truthful, that it was troubling in the extreme.
Also called on the part of the mother in relation to this matter is her sister-in-law, Ms R. Ms R was called in order to confirm or corroborate in particular the concerns that the mother says arose in relation to the father, and in particular with regard to his consumption of liquor.
I will comment a little later in that particular regard, but suffice it to say, the father drinks far too much, and it is irresponsible. He is not a boy any more at 35 years of age, and the nonsense in that regard must stop, if for nothing else, because of the health concerns that arise in relation to him, but perhaps more particularly, because he has a four year old son who is dependent upon him and upon his mother, and the consumption of alcohol and the inappropriate consumption of alcohol entered into by the father, is simply a matter that raises concerns as to his responsible and appropriate attitude to parenting. The father has had three drink driving offences or convictions. He suggested in evidence that they were the only times that he had drunk and driven. I have not heard such aberrant nonsense in a long time. It stops, and it stops now.
In any event, insofar as Ms R was concerned, she did not have a kind word for the father. Interestingly, of course, she had nothing but positive concessions to make in relation to the mother and confirmed in paragraph 10 of her affidavit that she believed that it was not in [Z]'s best interests to live with the respondent on a full-time basis because he will become socialised into being a product of the respondent, namely that heavy drinking is the normal activity, aggression and obsessive tidiness together with the lack of emotion are not, in her view, she says, something that a child should be subjected to on a constant basis.
Unfortunately, Ms R's evidence was of little, if any, assistance in relation to the matter because it was so biased in the extreme that it provided the unclearest of pictures in relation to the matter. For a start, it was obvious that the relationship between Ms R and the father was one which was based upon the relationship with the mother and when the matrimonial relationship between the mother and the father broke down, the friendship broke down. But it is also clear that the socialisation between Ms R and her husband, as well as the mother and the father in this matter, was a relationship which was developed entirely around the social aspects of their lives and, of course, it was one that involved heavy consumption of alcohol.
In that regard, I note that there was not a concession at all on the part of Ms R, as to her consumption, or more specifically, of course, the mother's alcohol consumption and that, of course, again gives rise to troubling matters. Additionally, and perhaps of greater concern, is the fact that Ms R's material was abundant with criticisms of the father and yet, as is so obvious from so much of the evidence and what must have been obvious to Ms R, are the very real failings in relation to the attitudes and responsible approaches of the mother, in relation to the parenting and arrangements with regard to the parenting of this child.
I turn now to the evidence of the other witnesses called on behalf of the father. As I say, two of those witnesses were not required. Ms C, understandably, was not required in relation to the evidence that she gave, contained within her affidavit of 18 May 2009. She comments upon the fact that she and her family lived next door to the mother and the father at one stage and indicated that, although they did not socialise to any great extent with the mother and the father, they did have a get-together on one occasion. There is no date, of course, in relation to that and Ms C's comment that she did not recall any incident with a lighter, may simply arise as a result of the fact that the incident, as alleged to have occurred by the mother, occurred, if it did occur, at another time and at another place.
Ms C's evidence was of virtually no assistance to me in relation to this matter, other than perhaps the final comments that she makes in paragraph 4 of her affidavit, where she notes that the houses were close enough together that, no doubt, each family was able to hear an argument or raised voices in the other household. She comments that she could clearly recall often hearing the mother yelling at the father and that she could recall hearing the mother yelling more than the father.
Perhaps the extent of the exchanges between them were more balanced than that which is suggested by Ms C, but in any event, the one thing that it does indicate is that the mother is not, as she would continue to try and suggest throughout her evidence, both written and oral, something of a “shrinking violet”. A person who was just too nice. A person who tried throughout the relationship to just let the situation float along without difficulties. The mother's painting of herself in that way is simply an exaggeration in the extreme and the evidence of Ms C is supportive of the fact, that the finding that I make in relation to the mother is of a very different personality than that which the mother would wish to be considered.
The affidavit of Mr T was relied upon, no doubt, primarily to explain the role that the father has at his employment and, in particular, to confirm the drug and alcohol policy that the company, [E], has in relation to its employees. He says, in paragraphs 3 and 4 of the affidavit filed 18 May 2009, the following:
3. The alcohol and drug tests occur at random and not even I know when the testing occurs as it organised by the Occupational Health and Safety officer. The amount of testing each year varies but is generally between four and five times a year when everybody who is employed by the company is tested.
4. In the event that there is a breach of the alcohol and drug test, their record confirming the breach placed on the employee's file. There are no breaches of this policy noted on file for Mr Halse. In addition as his immediate supervisor I am not aware that Mr Halse has ever had a positive test result for either drugs or alcohol. I would expect that there have been at least 22 tests since Mr Halse has been employed.
He then goes on to say the following:
Apart from the testing I work closely with Mr Halse and have never noticed or observed Mr Halse to be affected by alcohol and have always noted that he takes great pride in his work.
Again, it is clear, and particularly when the evidence is unchallenged, that whilst the mother alleges consumption of alcohol at the extreme range, it does not, apparently, appear to be in any way reflected in the conduct by the father of his business with his employers. An assessment of perhaps 20 or more drug and/or alcohol tests over the period of the father's employment, all of which are clear, would indicate that the mother's suggestion of the father's consumption of alcohol is an exaggeration, but as I have already indicated, the other side of the coin is that the father's driving history and the admissions made by him in relation to his consumption of alcohol, as well as certain other matters, give rise to concerns in relation to the appropriateness of that consumption. I accept the evidence of Mr T in relation to this matter.
I turn now to the evidence of Ms G. Ms G is the paternal grandmother of the children, [X] and [Y]. In other words, Ms G is the mother of their deceased father. Ms G sets out in her affidavit concerns that she had, and continues to have, with regard to the relationship she has sought to have with her grandchildren and what she says has been the interference by the mother in that regard.
Ms G was cross-examined by counsel for the mother in relation to the attempts by her to foster and continue a relationship with [Y] and [X]. Ms G, I thought, was an honest witness. She had not been as determined as perhaps might have been expected, particularly at the time shortly following the death of her son, but in light of the circumstances of that death, a tragic suicide arising from schizophrenia, no doubt the grandmother in that instance was distressed in the extreme and one could imagine that she would be less than as determined as one might normally have expected, in relation to the continuation of the relationship with her grandchildren.
In any event, I am satisfied, and she was really unchallenged, that she has certainly since about 2000 or 2001 made attempts to rekindle the relationship, both with the grandchildren and with the mother in these proceedings, and that the mother has been less than determined to foster and develop that relationship.
I was generally impressed with Ms G and the evidence that she gave in relation to this matter and accept, where there is conflict between her evidence and that of the mother, that the evidence of Ms G is far more reliable in all the circumstances.
Similar comments can, of course, be made in relation to evidence of Ms J. Ms J is the paternal aunt of [X] and [Y]. In her affidavit of
18 May 2009she talks of the various attempts made by her to foster a relationship, particularly with [X] and [Y]. She sets out in some detail, the steps that were taken by her in that regard and, in particular, sets out an attempt, she says, to locate the mother in Mackay, which she did, and the approaches that she made in relation to attempting to have the opportunity to meet with [Y] and [X].
She says that it was a situation where the mother was less than cooperative and clearly a situation where the mother was not committed to the fostering of that relationship. In fact, her evidence is to the effect that when, on the first occasion that she was able to locate the mother, she was in fact given at least a courteous greeting and the opportunity was taken to come into the home and she saw some photographs of the boys, but when other arrangements were put in place for her to meet the boys, obviously after they had returned from school, she says that the mother was certainly less than cooperative and that, if anything, steps had been taken by the mother to preclude her from having the opportunity of meeting with the boys, she says, this being evidenced by the fact that the father, apparently at the direction of the mother, was sent out to send Ms J away.
Ms J was challenged in relation to those particular aspects of the matter and I thought that her evidence in that regard was believable and certainly, I found it far more reliable than the evidence which was given by the mother in relation to this matter and no doubt far more reliable than the basis upon which a challenge was raised in relation to the evidence of Ms J.
Again, as I indicated in relation to the evidence of the paternal grandmother of the boys, [X] and [Y], where there is conflict or difference between the evidence of Ms J and the evidence of the mother, I am far more comfortable in accepting the evidence of Ms J, particularly with regard to the attempts made by her to foster some form of relationship with her nephews, [X] and [Y], and unfortunately the obstructive nature of the mother's behaviour in that regard.
The final witness called on behalf of the father, at least in Mackay, was his mother, the paternal grandmother of the child, [Z]. I generally found Mrs H to be an honest, open and frank witness. Unfortunately, I found some of that honesty and openness rather disconcerting and, in some instances, misguided. Mrs H clearly loves her grandson and clearly loves her son. No doubt that is reciprocated and it is an understandable interaction that exists between them. As a result of that however, Mrs H is blinkered at best and blind at worst to the failings that clearly arise in relation to her son.
In that regard in particular, and obviously, I note that she was less than open and frank in relation to issues with regard to the parenting of [Z] by both the mother and the father. She was asked, for example, and it is not an uncommon line of questioning, about the father's consumption of alcohol. In particular, she was asked whether the father drank too much. She said that she did not think so. How she could not think so, in light of three drink driving convictions, the last in the major range when he was 28 or 29 years of age, is of concern, because it means that she is not attuned to such matters.
I accept, of course, that she would not under any circumstances have allowed [Z] to come into a situation of risk with the father, but the fact that his consumption of alcohol is as significant as it is, is troubling and it is more troubling that the paternal grandmother fails to appreciate that.
Of greater concern to me, however, in relation to Mrs H's evidence, was the evidence that she gave when asked, about positives and negatives, with regard to each of the parents of the child.
She was asked, for example, what good things could be said about the father's parenting. She was effusive in her comments. She noted that when he came home, when the parents were still living together, he would play with [Z], he would bathe him, he would feed him, he would read him stories and would be involved entirely in the child's life. I accept that as perhaps, an accurate reflection of the father's wish to be as involved as possible in relation to this child.
She also was asked whether she had ever witnessed the father withdraw, as the mother suggested, such that he would, for example, sit by himself and drink. She said that she had not ever seen that and whilst I accept that her evidence was open and honest, it is only, of course, a snapshot of the entirety of the matrimonial relationship whilst the mother and the father were together.
What was troubling, however, were the answers that she gave in relation to the mother. She was asked whether there were any positive observations that she could make of the mother's parenting. She was abrupt in her answer. She immediately said “no” and went on to explain, "Because if I was there, then he was with me".
A more blinkered view could not be imagined in relation to what might or might not have been the situation with this little boy. The father, at the time, was working, on his own admission, about 60 hours per week. The mother, obviously, had a significant involvement in relation to the child's life, in fact the primary or paramount involvement. Whilst no doubt when Mrs H was present she was closely involved in relation to the child's life, the real concern arises from the fact that she could not, under any circumstances, countenance the making of a positive comment in relation to the mother and yet, of course, the father could clearly do so and did do so.
She was asked whether the mother's parenting was in any way exceptional and she acknowledged at best, that it perhaps was what she would describe as just “normal parenting”. She was then asked what negatives there might have been in relation to the mother's parenting and her comment was a little troubling, in that she answered that she had not seen the mother cuddle her children enough and that she was somewhat, one would think, uninvolved in the children's lives because when the parties were together, she would bring [Z] to the grandmother's place of work a lot.
Of course, they are only small points, but it is troubling that there was little of a positive nature, if at all, that the grandmother could say in relation to the mother. The really troubling aspect of that, of course, is that quite clearly the father's application is, to a significant degree, revolving around the particular involvement of the grandmother in relation to this matter and whilst there are criticisms obviously of the mother's fostering of the relationship with the father, just as clearly the grandmother would have a significant role in that regard and I do have concerns as to whether she fully appreciates the importance, not necessarily to the mother or to the father, but to [Z] of having a positive reinforcement, in relation to his relationship with the other parent.
Most troubling of all was the grandmother's answer in relation to whether there were any criticisms of the father. In answer to that, and in particular to whether there were criticisms of the father's parenting, the grandmother simply said that she did not have any at all. None of us are without fault. The fact that a mother loves her son and therefore sees only the best in her son is an understandable reaction by any parent, but it is also a rather one sided and blinded view of the world.
In this matter, the father, like all of us, has failings. It does the father no benefit to be told that he is without fault. It does the grandmother no credit to feel that there is such a difference in the position to be taken with regard to the mother and the father. If, as it should be, the paramount consideration is the welfare and the best interests of this little boy, then of course, the failings and the positives of each parent should be recognised, by all significant in relation to the child's life and, unfortunately, as I say, I did have concerns in that regard that the grandmother was so blinkered that there would be a real issue of the relationship with the child and how it would be fostered, particularly with the mother, if the grandmother was having so significant a role in the care and supervision of [Z].
Whilst there are those negatives, as I say, I was generally impressed with Mrs H. She clearly loves her son, but more particularly, would do anything in relation to her grandson. I have no doubt whatsoever that she was absolutely sincere in the statements that she made with regard to any risk to the child, particularly if, for example, she had occasion to be in the motor vehicle with the father when he was under the influence of liquor. Without hesitation, I would think that she would come to the fore, would probably, and one would hope, significantly chastise the father in relation to such behaviours, but more particularly, I accept that on no occasion, and there have been many that she has travelled with the father, has he been either hung over or, in fact, intoxicated to a degree where he could not drive the vehicle.
In any event, I note that the father made reference in his evidence to having been stopped, he thought, on about five occasions and breathalysed at times when handovers were to occur and his response in that regard was, "I'm still driving". The grandmother's position was to say that she recalled, she thought, two or three occasions when that had occurred and, of course, the fact was that on none of those occasions was the father under the influence and unable to operate the motor vehicle.
As I say, the two areas of concern that I had were specific. They both relate to the grandmother's assessment of her son and whilst perhaps understandable, as is the love of any parent, particularly mother's for their sons no matter how old they might be, it was somewhat blinkered and needs, one would think, to be reviewed, at least to some extent, because there are positives and negatives in the parenting of all parents and there are certainly positives and negatives in the parenting of both the mother and the father in this particular matter.
Finally, I turn to the evidence of Mr H. Mr H was called on behalf of the father. He was called, similarly one would think, to Ms C to make comment in relation to the allegations by the mother that the father had at a barbecue attempted to set her on fire. Mr H says that he knew both the mother and the father and at around the time of their wedding, one would think therefore at around the time that the mother alleges this incident occurred, they were living as neighbours and that they spent time at each other's residence.
Mr H says in his affidavit, that from time to time there were parties or barbecues at his house, however he did not remember an incident where the father had attempted to set fire to the mother's clothes. He was cross-examined in relation to that particular aspect of the matter. I thought that his evidence was quite full and frank and generally of assistance.
The mother tried to paint Mr H, similar to the painting that she attempted to do of the father, as drug addled, alcoholic, irresponsible and any other detrimental comment that could perhaps be made. Not a skerrick of evidence was, of course, produced in that regard, other than the allegations by the mother.
Mr H's evidence in relation to the consumption of liquor was that, he did not mind a drink. He was quite prepared to consume significant amounts of alcohol and admitted that he did so. However, there was no evidence that he, similar to the father, was not able to, at least recognise when consumption was or was not appropriate and I am satisfied that his recollection of the occasion or occasions that he and the father and mother may have been together, is an accurate reflection.
I find specifically that there is no basis whatsoever upon which there could be a suggestion that the father had attempted to set the mother's clothing on fire. Her evidence in that regard was wholly unbelievable. It is simply one more of the instances of exaggeration on the part of the mother or outright untruths on the part of the mother. There is no evidence whatsoever that such an incident occurred. There was no attempt by the mother, for example, for any other evidence in support of her position to be called. In that regard, for example, I note particularly that the mother when pushed to give more specifics in relation to the alleged incident of fire lighting, specifically notes that she was speaking with another woman at the party and one would have thought that if there was corroboration that could have been called in relation to the matter, it would have been called.
It was not forthcoming and was again a matter which gave rise to greater concerns in relation to the mother and her evidence, than any concern that arose in relation to the father.
Before turning then to the evidence of the mother and the father in relation to this matter, I turn, as I must, to the report of the psychologist, Peter David Jordan. Mr Jordan prepared a Family Report on 8 February 2009 and that report is now before the Court marked as exhibit 17, in relation to the proceedings.
Mr Jordan's report was comprehensive. Mr Jordan made recommendations in relation to this matter which are set out in part 9 of the report. In so far as [Z] is concerned, his recommendations are generally reflective of what the mother proposes in relation to this matter. He recommends that there should be equal shared parental responsibility. He recommends that there be an equal shared care arrangement in relation to responsibility for [Z]'s care for the remainder of 2009 and that if the parents live in the same town, then that he live equally with each parent. He then goes on, however, to propose that from the time that [Z] commences prep in 2010, he spends two-thirds of the school holiday periods with his father and obviously by inference therefore lives with the mother.
Mr Jordan was questioned, understandably, in relation to that particular aspect of the matter. Counsel for the father asked, as I would think was appropriate as an opening question, whether in fact the determination or recommendation in relation to this matter was a finely balanced one. Mr Jordan acknowledged that it was. Mr Jordan clearly had been made aware, as was appropriate, of the trial affidavits filed in relation to this matter and of the further evidence that had fallen, particularly in respect of issues of concern that arose in relation to both the mother and the father.
Counsel for the father cross-examined Mr Jordan in relation to those recommendations that were made and, quite properly, challenged the basis upon which certain assumptions were made. Mr Jordan, when asked whether the assumptions that he made in relation to the matter were based on the truthfulness of the parties, he acknowledged that they were. He was then asked whether it might be a situation where those recommendations might change if it were found that one party or the other were not a credible witness.
Mr Jordan responded that it would raise concerns and he went on to be more specific and say that it would specifically raise concerns about the mother's integrity. But his further answer or comment was significant. He went on to say that whilst that might be the case, the best interests of the child, of course, had to come to the fore. He acknowledged, however, that it would clearly be the case that if the mother was untruthful in relation to the evidence that she gave, then it would raise some concerns about the legitimacy or genuineness of any attempts by her to foster any relationship with the father.
He was asked about the situation in May of 2009 when the father was returning [Z] to Brisbane. I will comment a little further in relation to that when I deal with the evidence of the parties, but I thought
Mr Jordan's comment was perhaps understandable. He found the whole situation very confusing and, when asked whether it raised issues as to credibility and whether the mother was child focused, his response was, I thought, telling. He simply said that he could not work it out. Unfortunately, that was a recurring theme in relation to much of the evidence of the mother, in relation to this matter.
Mr Jordan, when commenting again upon that particular aspect of the matter, noted that if the father were, as put to him by counsel for the father, innocent of any manipulation or inexactitude in relation to communications between he and the mother, then what would be the situation or his view in relation to it. Mr Jordan said that it was very worrying and was a reflection of problematic communication which would, no doubt, be something that would be of concern. He also noted that it reflected on her insight in relation to the need for appropriate communication, if the best interests of [Z] were to be met.
It was also interesting, that the circumstances that existed between the mother and the father in relation to this matter, was one where each was far more likely to blame the other for the difficulties that arose in respect of the relationship than to recognise that they each had a role to play and input in relation to those difficulties. When cross-examined by counsel for the mother this particular issue was specifically addressed and Mr Jordan was asked whether he had gained the impression from the father that the father was not responsible for the problems that were now existing in the communication and exchange between he and the mother.
Mr Jordan responded:
My impression was that each blamed the other.
When asked to be more specific and in particular to address the circumstances both prior to and after separation his position was unchanged. He said that his impression again was that each thought that the problems in the marriage was due to the other party and the problems post separation was due to the other party. The fact is, of course, that both have responsibilities in that regard. Both have fallen short of what could, and should, properly be expected in that regard. I was assisted by the evidence of Mr Jordan in relation to this matter and of the recommendations that were made.
I turn now, as I must, to the evidence of both the mother and the father in relation to this matter. As is perhaps obvious from many of the comments that have already been made, I was troubled in the extreme by both the mother and the father and to their attitudes, perhaps to differing degrees, but both gave rise to concerns from me in relation to the appropriate arrangements that might be put in place with regard to this child. Before launching into what will no doubt appear to be a serious criticism of both the mother and the father, it is important that I acknowledge, and I do, that I have absolutely no doubt as to the love, devotion and affection that each parent has for [Z] and more importantly, that [Z] has for each parent.
I have absolutely no doubt as to their capacity to ensure that [Z]'s day to day needs are met, that there is a roof over his head, clothes on his back and food on the table. The mother says that she is available full time to provide for the day to day care of the child and whilst the father works I, of course, accept without hesitation that appropriate and proper arrangements in every respect would be put in place with regard to supervision and care provided for by a loving and doting grandmother or by appropriate child care.
The real issue here is not the question of what the psychologists sometimes refer to as whether one or other of the parties or both are, "good enough", but rather the more esoteric or fine points in relation to the parenting of the child. Real issues arise, for example, in relation to the attitudes to parenting, the capacity to foster and to develop a relationship with the other parent and a real acceptance and understanding of the importance of the other parent in the child's life.
To a significant degree, I was troubled by both parents in that regard.
In relation to the mother, I have already commenced to comment upon many of the untruths in her evidence. I could go through a litany of matters where I simply did not believe her. The commencement of the relationship with Mr B is perhaps a starting point in that regard. She indicated that she, having known Mr B for about 10 years, had communicated with him sporadically over years. There may have been months or even years between communication, and yet out of the blue she says on or about 22 May, after having not spoken to Mr B, upon her evidence, for a period of about 12 months, she called him, asked whether he would like to accompany her on a two week cruise to Hawaii and share a cabin.
I have not heard such nonsense in a very long time, and I hear a lot on a day to day basis in this Court. The mother lied. I still, as is obvious from the comments I have previously made, struggle to understand why she lied. There is no criticism in relation to her morals. There's no criticism that I would, of course, bring in relation to the breakdown of the relationship and the establishment of another relationship. What I would criticise is the attitude, and the issues that arise in relation to her personality, where the mother would continue to lie right up to the moment that she sat in the witness box and continued to say that there was no relationship between her and Mr B.
She similarly was adamant that [Z] had not had any interaction with, nor had he had the opportunity to meet Mr B, until the relationship between she and Mr B had become more determined or more comprehensive, in or about December 2007, or January 2008. That, of course, flew in the face of the determination made by them, at least in December of 2007, to purchase land. But, of course, it also flew in the face of the evidence that was given by Mr B as to the fact that he was attending at the mother's residence, initially I got the impression he said more regularly than not, but when realising that there were then questions being asked about the relationship with [Z], backtracked significantly and said that it might have only been a coffee on a few occasions and I accept on some of those occasions, at least, the child would have been with the father and therefore not interacting with him.
Again, there was no need for the lie and the far greater concern was that the lie was continued in relation to the matter. I was troubled by that particular aspect of the matter and the fact that there was continuing determination, on the part of the mother to mislead. The mother's evidence in relation to the arrangements with regard to the overseas travel with Mr B were an exaggeration. At one stage it was put to her that she was making up the story on the run. She denied that. I find without a moment's hesitation that the story, and that is all it was, that was given by the mother in that regard was a total fabrication. It was evidence on the run. It was conflicting, confusing and simply untruthful.
Again, it was troubling, not so much because of the events that might or might not have occurred, but the real concern arose from the untruthfulness of what had occurred during that period from May until December of 2007. The mother continued to suggest that she had simply followed directions and advice from her solicitor in relation to the arrangements with regard to orders that came into existence in July of 2007. But, of course, the mother when given advice, quite properly, determined that she would not waive legal professional privilege. She is perfectly entitled to do so, but I am perfectly entitled to draw an inference from that that the reason the privilege was not waived was because it would be expected that the evidence to be given by her legal representative in relation to that particular aspect of the matter would not be corroborative of what she said, in relation to the matter.
In any event, it is clear that the orders that came into existence on 9 July 2007 came about as a result of the mother's legal representatives, no doubt upon instructions having discussed issues with her, formulating proposals. More particularly, it is not, in my assessment, at all a situation where the mother had been given advice as to what should or should not happen. The fact is, I have no doubt that she was given advice to the effect that she would not be able to move on an interim basis and that she would be required to remain in the locality, enabling the father to foster and develop his relationship with the child, until at least a final hearing could be had.
Accordingly, I find that the mother knowingly entered into the consent orders of 9 July 2007 with no intention whatsoever of abiding by them. It was her clear intent, simply to have the opportunity to leave and to continue the relationship already commenced with Mr B, rather than to have that put on hold whilst proceedings awaited hearing in Mackay or wherever the matter might have been heard. The mother was untruthful in the extreme in that regard. As I have said, I have no doubt that the mother at no stage intended to comply with the orders in relation to the return of the child at the commencement of the 2010 school year.
It is certainly a sham. It was a sham from the beginning and it was a sham known exactly by the mother. I was troubled by much of the mother's evidence. As I say, there was an ongoing element of untruthfulness in what she did and said and she was untruthful in the witness box. The mother did not give me the impression that she was an unsophisticated woman. I gain the distinct impression that she had a degree of what might be called street smarts, as well as an innate intelligence.
Interestingly, and she was caught out, she was asked whether there was subterfuge in the correspondence that she had written over years to the father. In other words, she was seeking to manipulate him, trick him, mislead him, or whatever other term you might like to use, and she indicated that she did not understand the term. The interesting point that arose in relation to that is that it was a word that was contained within her own affidavit and it was clearly a situation where, in my assessment, she knew exactly what was meant, but she tried to paint herself into a position of being a person of limited grasp of the circumstances. Under no circumstances do I find that that was the case.
The mother was untruthful. The mother was misleading. The mother was manipulative in the extreme. In that respect, I note that there were tendered to the Court a significant number of letters that had been written by the mother to the father over years, both prior to their marriage and subsequent to their marriage, including the period during the mother's pregnancy with [Z].
The mother said that she was a nice person. The mother said that she thought it was her job to be positive in relation to the father and that she was, as she put it finally in cross-examination, lying to the father. I get the distinct impression that lying, whether it was to the father, to herself or to the world in general, was not a situation unfamiliar to the mother in any way, shape or form.
The mother was an arch manipulator. She attempted to manipulate the situation in relation to this relationship. She attempted to manipulate the Court. Unfortunately for her, at least, she found that those who practise in this jurisdiction are very experienced in the forensic tasks involved in finding the inaccuracies and the untruths and in this matter she was caught out repeatedly in the untruths that she put forward.
She repeatedly suggested that there would be other evidence which would show her position to be one of accuracy. Never, on any occasion, did she subsequently produce documentation. Two of the clear examples in that regard related to the time that the father says he found a quotation for the removal of goods from the matrimonial home in Mackay. The quotation was dated, apparently, 24 May 2007. It showed an uplift date of 20 June 2007. The mother denied that that was the case. She suggested that in some manner the paternal grandmother had impersonated her and had suggested that that date be included in documentation. She said that that could be proven by the fact that she had the real quotation which was in the terms of a date to be advised and not a fixed date.
She was given the opportunity for that to be produced. On the next day when the matter came before the Court it was not produced. I find that the mother lied again in that regard on two bases. Firstly, that she had another document and secondly, that she was not fully aware of 20 June 2007 as being the uplift date.
Similarly, the mother also was caught out in relation to the arrangements for the return of [Z] from the father to the mother's care on or about 3 May 2009. Tendered to the Court was a string of SMS texts which passed between the mother and the father in relation to arrangements for the child's travel on or about 3 May 2009.
The final exchange was on 24 April 2009 and basically provided, from the perspective of the mother, that the father make the arrangements for travel and have the child in Brisbane for collection by the mother. The mother said that that was not correct. The mother said that she had sent a further text saying that she would be in Mackay and that the father had refused to cooperate in that regard. The mother was not able to produce the text.
I am not technically savvy enough to know what might or might not be able to be retrieved, but one would have thought, that with this matter only a week or two before trial, the mother would have been astute enough to recognise that a text sent by her on such a critical issue would be something that could, and properly would be, relied upon at hearing.
The mother lied. No such text was ever sent by her. If anything, the mother set out to paint the father into some situation where he was required to travel with the child. The illogiciality of that is almost overwhelming. In particular, of course, I raised with her, and I must apologise to counsel for doing so as I do not like to interfere in cross-examination, with the nonsensical suggestion that she was put to the expense of paying one half of the transportation costs when it was unnecessary and she made no complaint.
She had previously answered counsel for the father in a manner of suggesting that she had raised it in texts and the father had refused. She was asked whether she had communicated that to her solicitors and her first response was to say that she was not legally represented at the time. When it was pointed out that that was in May and she was represented since March, she indicated then that she had not contacted her solicitors in relation to the matter because she was not troubling them in relation to inconsequential matters, though one could not imagine that this was inconsequential.
More particularly, however, when I asked her about the unnecessary expense that she was put to, she in fact told me that she had spoken to the solicitors about it and that emails had been sent. At that stage the proceedings were adjourned for a moment whilst the legal representatives for both parties were given the opportunity of attempting to locate the copies of the emails in relation to the issue. When the matter resumed, no emails were otherwise able to be produced, but the mother insisted that she had been put to the expense. When counsel for the father then asked her again about the situation, she in fact indicated that she had not communicated with her solicitors.
The mother was, as counsel for the father suggested, “making it up on the run”. She had obviously, over the years, gotten away with the stories that she was intending and continuing to fabricate in relation to arrangements with regard to whatever might or might not have been the difficulties in her life, and only when those with perhaps greater experience in relation to the practise of the Court took her on, was she able to be clearly shown to be untruthful in the extreme and a story teller par excellence. It was a situation of very great concern.
Again, it was not in the whole scheme of things that significant an issue, but what was most troubling of all was the lack of insight that the mother held in relation to the effect of her actions, not only of course upon the father, but of course more particularly, upon the child. The father's evidence was to the effect that he knew nothing of the mother's intention to be in Mackay and knew nothing of the mother being, in fact, on the same aircraft as he and [Z], when he was returning the child to Brisbane.
It was a situation where the mother had failed to put any thought whatsoever into what might or might not have been appropriate. It was self centred behaviour. It was controlling and manipulative behaviour and it was certainly behaviour that was in no way focused upon the needs, best interests and welfare of this little boy. It was clear that the mother was, as I suggested, making up the story on the run. It was a troubling occurrence. It was a recurring situation in relation to this mother.
I was also troubled by the mother's evidence, as I commented a little earlier, in relation to the fostering of a relationship between the paternal grandmother and paternal aunt of the older children, [X] and [Y]. As I indicated, I am far more inclined to accept the evidence of Ms G and Ms J in regard to the attempts made to foster a relationship with [X] and [Y], than the evidence of the mother. I am far more inclined to think that the mother had determined, for whatever unfortunate reason, that she was the only one who had feelings, she was the only one who had the right to make decisions in relation to these children, whether they were right or wrong and it was, of course, troubling that that was the case.
It was more troubling, however, that as was submitted by counsel for the father, the mother had, what might be called, runs on the board. She had, at least in the past, set out specifically to make arrangements that were suitable to her and that such arrangements or determinations were in no way child focused. It was a theme that continued through the hearing in relation to this matter and, of course, as I indicated was a matter that troubled me very greatly because if one is to consider the greater good, the best interests of the child and the need for there to be a recognition of the importance of the relationship with the other parent, in this instance the father, then there is a concern that must be held as to the lack of insight upon the part of the mother, in relation to that important relationship.
It was contented on the part of the mother and to some extent there is some legitimacy in the contention, that there is a distinction to be drawn between whether the mother might or might not have fostered a relationship with the paternal grandmother and paternal aunt of [X] and [Y] as opposed to the importance and the recognition by her of fostering a relationship with the father. Quite clearly, there has at least on one occasion been a situation where the father has brought contravention proceedings, but just as clearly there have been many instances where circumstances, although limited in communication, have been able to be arranged with regard to the father having the appropriate, if not greater, time with the child than was the case with the mother and pursuant to the orders.
The mother, I would think, recognises, at least to some extent, the importance of the relationship with the father, but the concerns that are expressed by the father in relation to his trust of the mother as to her intentions in relation to this matter, and the concerns as to whether, when the searchlight of proceedings is turned off, whether she will still be as determined to foster the relationship is a legitimate concern.
I turn now to the father's evidence in relation to this matter. As I commented before, I generally have no concerns as to the father's capacity to meet the day to day needs of the child and absolutely no concerns as to the father's love for the child or the child's love for the father. As was evident from the report by Mr Jordan, both the mother and the father have a close and abiding relationship with the child. It was obvious that the father was frustrated in relation to this matter. I gain the distinct impression that the mother had led the father continuously through their relationship to believe different to what she now purports was the relationship and the circumstances of the relationship between she and he.
The father was not a great communicator. I note that Mr Jordan, in fact, said that he had lead the father along to open up about certain aspects of the relationship between he and the mother, but that once he was put on the path of discussing such issues, he was open and frank. Counsel for the father described his client as somewhat stoic. I think that is an appropriate assessment in relation to the father. I believe and accept that he was somewhat surprised by the circumstances of the breakdown in the relationship. I accept, unconditionally, that the first he knew of the mother's intentions in relation to this matter was when he mistakenly, at least from the mother's perspective, found the removal quotation from “Hornicks”, in relation to transportation of goods from Mackay to Hervey Bay.
The father, however, is not without a basis for criticism. I commented before about the issues of drink driving. The father was born in 1974. His last reading, a reading he said was in the vicinity of .25 per cent was in 2003. He was 28 or 29 years of age at the time. He had been drinking for a period, he estimated, of about nine hours, having been apprehended about 11 pm and commenced drinking at about 2 pm. He simply should not have done so. What troubled me more than that and, of course, that is of concern because it is both illegal and irresponsible, was the statement that he was adamant that he had never driven over the limit on any other occasion apart from the three times that he had been apprehended.
As I indicated before, I could not imagine a more nonsensical statement and again one that gives rise to greater concern as to the statement than of course the actual driving whilst under the influence of liquor. None of us, particularly when we were younger, could say that we did not, on occasion, stretch the limits at what might or might not have been appropriate. The father's failure, however, to acknowledge that he had acted on more than one occasion, or three in this instance, in an irresponsible manner, gives rise to a concern about his behaviours.
In any event, it was shown to be simply inaccurate when, in the very next question following the answer given to whether he had driven over the limit on more occasions he said no, he responded that on other occasions when he had driven home or when he had arrived home after 9 pm, he had been intoxicated and he indicated that there were a few occasions. That was at least an honest answer given in relation to the matter, but of course it is troubling that that would be the position taken by him in relation to the matter.
The father's evidence in relation to the consumption of alcohol was concerning. The father, no doubt, is able to work in a significant role, an important position and to perform his tasks admirably. In that regard, Mr T, his immediate superior, makes reference to that.
However, alcohol loomed large in relation to this matter and I must say, that the note I wrote to myself during some of the cross-examination still, in my view, is an appropriate assessment of the position that is taken by both the mother and the father. The mother's statements in relation to the father's alcohol consumption are exaggerated. On one occasion she suggested that he drank two cartons of beer in a session. One cannot imagine that that could have occurred, but in any event it was denied by the father and I accept that. On the other hand, I also note that the father's position in relation to his alcohol consumption was, I thought, generally minimised. I accept, however, that rather than continuous consumption of alcohol there might be more often than not situations of what one might consider to be binge drinking.
The father gave evidence that on occasions he did not drink at all. On other occasions he might have three or four stubbies of beer or mixed drinks and on other occasions, for example, at the party, or at least one of the parties that he attended with Mr H, he quite properly acknowledged that he may have drunk a carton of beer as well as rum or other pre mix drinks. The fact is that the father does over indulge in relation to his alcohol consumption and, of course, it is troubling. It is troubling, as I commented before, for a number of reasons, not the least of which is the general effect upon his health, but also the concern that obviously must arise in relation to the responsibility for the care of a four year old child.
Unfortunately, as all parents know, the rough and tumble of life would mean that it is not inconceivable that even in the most protective of environments, a child might take a fall. They will need some assistance, perhaps medical assistance. If the father's consumption of alcohol meant that he was over the limit, he would find himself in a situation where he would need to rely upon others and that, of course, is troubling. None of us are without sin. None of us could, or should, cast the first stone, except probably those in positions such as mine where criticisms are meant to be made, hopefully for the assistance and guidance of one party or the other.
The father, obviously, here needs to consider the position with regard to the consumption of alcohol and the issues of the capacity therefore to meet the needs, on a day to day basis of this child. There is no criticism, and I certainly would not make a criticism of the father, in relation to the work that he does and the hours that he works. But I am somewhat troubled about the father's position taken in respect of what arrangements should be in relation to [Z].
The father may feel that he has been misled, perhaps understandably grieved, by the orders made in 2007 now not being the subject of agreement with the mother. But the fact is that the mother is, to all intents and purposes, available full time to provide for the care of the child whilst the child will clearly need to have other arrangements put in place with regard to his care if the father were to have the child primarily living with him. It is a troubling issue because there are obviously benefits that arise in relation to a biological parent being primarily responsible for care, rather than others, including no doubt a doting and loving grandmother.
What is troubling also is that there appears generally to be a lack of appreciation on the part of the father of the importance of the relationship between [Z] and his older brothers.
Whilst [X] and [Y] are significantly older, 17 and 11, nearly 12 years at this time, the fact is that they have, to all intents and purposes, been part of [Z]’s life, for the whole of his life. The father's proposals would mean that there is a significant change in that regard and, as was commented upon at length by Mr Jordan, the sibling relationship can, in many instances, take on greater significance even than over time, the importance of the parent/child relationship because, more often than not, and hopefully it would be the case here, the sibling relationship will be a longer one than the relationship between [Z] and his parents.
There is a concern, and I must say it is a matter that troubles me, that the father does not seem to fully appreciate the significance of that relationship, though correspondingly, there appears to be little appreciation on the part of the mother of the significance of [Z]'s relationship with other members of the father's family in Mackay. It is simply one other of the issues of concern that make the determination of this matter so extremely difficult.
I must say that I was also a little troubled by the answers that the father gave when, as again is not uncommon, he was questioned about issues in relation to the mother and her relationship with the child, as well as the difficulties in the relationship between the mother and the father. The father was asked whether he could say anything positive about the mother's relationship with [Z]. Firstly he was avoidant in the extreme. He said that he really was not able to say anything positive because he had not seen [Z] and his mother together for about two years or so.
He said that when he and the mother were together, there were still difficulties there, because the mother would be telling him stories about the difficulties that she experienced in the day to day care, not only of [Z], but of the older children. When push came to shove, however, he was asked if there was anything that he could say of a positive nature about the mother and her relationship with the child. His answer was, unfortunately, identical to that which was given by his mother, Mrs H. He said no.
He could not recognise or at least verbalise the importance of the relationship of [Z] with his mother, not from the benefit perspective of the mother, but it was troubling in the extreme that he could not make a positive comment in relation to the importance to [Z] of the relationship with his mother.
As I indicated, one of the matters that troubled me in relation to these proceedings was the lack of appreciation by both parents of the significance, relevance and importance of the other parent in the child's life. I was also troubled in a similar vein by certain of the comments that were made by the father in relation to various issues. As I have indicated, I have concerns clearly in relation to the father's alcohol consumption. At least on the face of it two relationships now, that with the mother in these proceedings and that which was until recent times existing between the father and his partner, Ms S, have come to an end, at least in part because of his alcohol consumption.
It would appear from the evidence that on two occasions he has, no doubt at the instigation and insistence of his partners, attended at Alcoholics Anonymous. But on both of those occasions he has only attended on one occasion and, it would appear, suggested that other people there have a problem with alcohol, but not him. The fact is, that three drink driving offences is nothing other than an indicator that there is a problem with alcohol. More troubling still, is the fact that what appear, on the face of them to have been positive and beneficial relationships between the father and both the mother and Ms S have at least in part come to an end because of the abuse of alcohol or, at the very least, putting it to the forefront, rather than perhaps the positive nature of the relationship.
Flowing from that, and perhaps most troubling of all, was when there were questions asked about communication problems and difficulties in the relationship between the mother and the father, the father was somewhat evasive in the answers that he gave until finally it was put to him in clear cut terms. Counsel for the mother asked words to the effect, "The problems in communication are the mother's, they're not yours, are they?" and the father responded, "Yes". It was an answer which shone bright as to the lack of insight that the father also has in relation to the difficulties that are inherent in the communication between he and the mother.
Both have significant problems in that regard. Both need very quickly to realise that there is a need for communication. This little boy is only four years of age. He is entitled to expect nothing other than the best from his mother and his father and all others significant and important in his life and, if the two most important people, his mother and his father, refuse or are unwilling to communicate with each other about decisions to be made, then it will be [Z] who suffers and the parents will be the ones who are responsible for that suffering.
That also leads to a further concern. It was noted by Mr Jordan in his report which was released on 11 February 2009 that it would be beneficial for each parent to participate in a parenting orders program. The mother has done so. The father has not. It would appear from the evidence that he gave at the trial that he has now made arrangements in relation to the matter, but his answers given in relation to why it was only arranged now were, I thought, unconvincing. He said that it had slipped his mind or that he had forgotten. The fact is that if concerns in relation to the matter with regard to the child were as serious and as significant as both parents lead me to believe, then I find it almost incomprehensible that the recommendation contained within a report, which was to be put before the Court would not be jumped upon by the father, as it was by the mother and steps taken.
For the report to have been released in February of 2009 and for it now to be four months later and for the father to have only, in the last few weeks taken steps to arrange to attend at such a parenting orders program does not augur well for the father fully appreciating that he is, at the very least, as responsible for the difficulties in relation to parenting and decisions with regard to [Z] as is the mother.
As can be seen, for a significant period of time now, I have commented upon the failings and the concerns that I have in relation to the mother and the father. It gives rise to the final and most difficult process and step to be taken in relation to this matter, what orders could or should be made with regard to the parenting of [Z]. There is, if you like, at least on the face of it, a preliminary issue to be touched upon in relation to this matter.
It was argued that whilst the case has been fully heard in relation to arrangements with regard to the future parenting of [Z] that there is an argument, sometimes referred to as the rule in Rice & Asplund (1979) FLC 90-725 which needs to be addressed. Rice & Asplund (Supra) is basically an attempt by the Court to put in place a structure that precludes the continuous litigation of proceedings.
In other words, if there were arrangements in place which had been either the result of a previous determination of a Court following a trial, or consent orders, they should not simply be cast to one side, if in fact, there has not been, as discussed in Rice & Asplund (Supra), a significant or substantial change in circumstances.
It was argued strongly on the part of the father, that whilst we have heard the evidence in relation to this matter, there was really, no significant change in the circumstances that existed with regard to the parenting of this child. The only change was that the mother had finally verbalised or expressed her lack of intent to comply with order 12 of the orders of 9 July 2007. In other words, apart from the mother's wish now expressed that [Z] remain primarily living with her, there was no change in circumstances.
I was referred particularly, to the recent comments by Warnick J in SPS & PLS (2008) 39 FLR 295 and the comments by Warnick JA in relation to how one determines or exercises the discretion that arises pursuant to the rule in Rice & Asplund (Supra). There his Honour commented in paragraphs 72 and 73 as follows:
I do not think that the rule in Rice & Asplund should be cast aside at the end of a hearing to change a previous order, even if the trial judge has come to the conclusion that on all considerations other than the rule, the best interests of the child require change.
There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstances sufficient to justify that course. Second, albeit the particular litigation has run, if no such rule is even considered, in a general sense, litigation will not be discouraged.
I agree wholeheartedly with the comments of Warnick J. It is clear that if there is no control in relation to litigation there is no possibility of the end of the financial and emotional strain put upon the parties, but more particularly, emotionally put upon the children, the subject of such proceedings. Here, there is little that has changed in relation to the circumstances. I have found that the mother knew, at all times, that it was a situation where the orders, and particularly order 12 of the orders of 9 July 2007, were not orders with which she would comply.
The evidence that was given by both the mother and, I note also by
Ms R was to the effect that the mother only agreed to the orders because of advices given to her by her solicitors. It may be that that was the case, it may be that those advices were to the effect that the order could be challenged at a later time but there needed to be a change in circumstances. In this instance there is much that gives rise to concerns that I have in relation to the wellbeing of this child.
There are real issues in relation to the effect upon [Z] of his separation from his siblings, [Y] and [X]. Balanced against that, of course, are the very real considerations that the older of the children, [X], finishes school this year, that he is seeking an apprenticeship, and at least from the father's perspective, it was a situation where he may in fact be seeking to relocate himself, being almost an adult, back to Mackay.
There is going to be changes in the relationship therefore between [Z] and his older brothers, no matter what. They would have been and should have been changes that were contemplated at the time that the orders were entered into in 2007. The mother has moved to Hervey Bay. It was clearly a circumstance contemplated by her at the time that the orders were made. In fact, the finding that I have made in relation to this matter is that it was always the mother's intent to, by any means able or open to her, to be in a position where she could effect a move to Hervey Bay, perhaps then seek, as appears to have been the case, to set up an established regime or routine in Hervey Bay and then, as has always been her intent, and as in fact occurred, by the filing of the application on 5 September 2008, seek to vary the orders.
She was in a relationship, at least in its early stages with Mr B at the time that she entered into the orders in July 2007. She agreed to the arrangements with regard to the transportation of this child at the time that the orders were entered into in 2007. I find myself in an extremely difficult situation because the circumstances that now exist with regard to this little boy are almost impossible to reconcile. But it was a situation that was known to both the mother and the father in July 2007 when the orders, which were proposed on the mother's part, were put into effect.
As Warnick J said in SPS & PLS (Supra), if no such rule is even considered, in a general sense, litigation will not be discouraged. The mother, knowingly, set out on the course that has lead to these proceedings. It is one of those rarest of occasions. I would have given serious consideration to a variation of circumstances because of a number of facts.
The first of those is the fact that the mother is available on a day to day basis to care for the child whilst the father, through commitments in relation to work, is not able to do so. I would have given serious consideration to variation of arrangements because of the issues of concern in relation to the father's consumption of alcohol, though, I must say, that there is no suggestion in the mother's material, or, in the report which is before the Court, that the father has fallen short of what could properly be expected in relation to the care of this child. There has been no change of circumstance other than those matters, and both of them were obviously factors which the mother herself clearly says existed, at the time that the orders were entered into.
I note in the submissions that were put on the part of the father, at the conclusion of the hearing, that at point seven, counsel for the father says the following:
If she, the mother, is to be believed, then from the inception of the order dated 9 July 2007 she intended to resume litigation so as to resile from that which had been agreed/ordered. In these circumstances if we are to not apply the policy matters to which Justice Warnick refers then when might we?
I agree. The circumstances in relation to this matter existed in every form, at the time that the orders of 9 July 2007 came into existence. It would be contrary in every respect to public policy, for there to be arrangements which would mean, that a determined and preconceived intent to seek to thwart the orders would be a basis upon which there could be a change in circumstances. I do not intend to allow the orders that were agreed in circumstances in July 2007 to be the subject of manipulation.
As I have found previously the mother is, unfortunately an arch manipulator. There was also, obviously, concerns in relation to the mother's real intent in relation to these proceedings. A straw shows which way the wind blows and as I have already commented, there are concerns about the mother's full, or any real appreciation of the importance of the relationship with the other parent or the other members of the father’s family. The obstruction which I find occurred in respect of the relationship between the paternal grandmother and paternal aunt of the children, [Y] and [X], is a matter that troubles me in the extreme.
The mother's predilection for untruths and a determination on her part, to persist with such untruths, even when every skerrick of evidence points to the fact that what the mother says is not be believed is a troubling matter in the extreme, because it shows an attitude and a lack of insight in relation to the direction and the importance of guidance that could and should be provided to a child.
I intend, obviously, as was submitted on the part of the father, to vary the orders in relation to this matter, not because it is a situation where there needs to be a reconsideration of the arrangements that were in place from 9 July 2007, but rather so as to ensure that there is in place a position, where each parent knows absolutely what is expected in relation to time to be spent with this child.
As I have indicated, the variation of orders, as is detailed in the Amended Response filed by the father is, in my view, an appropriate reconsideration and interpretation of what should be put in place in relation to this child. I intend to make orders in terms of those which are contained within the Amended Response filed by the father on 18 May 2009.
I am troubled by much that has occurred in relation to this matter, as is perhaps obvious from the lengthy reasons that I have given. There are matters of concern in relation to both the mother and the father. For what it is worth, I would hope that the comments are taken as a positive guide in relation to the future parenting of this little boy. He will be the one who benefits from it. He will be the one who is harmed by a continuation of the difficulties in communication and lack of frankness by both parents in relation to their exchanges with each other. I would trust that there could be some hope that the dealings that each parent has with each other will be, in future, beneficial to the child.
RECORDED : NOT TRANSCRIBED
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Coker FM
Associate: C Herbst
Date: 15 July 2009
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