Jobson and Halliwell
[2017] FCCA 1747
•28 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JOBSON & HALLIWELL | [2017] FCCA 1747 |
| Catchwords: FAMILY LAW – Contested parenting – mother is obstructive towards father’s engagement with the child and holds much resentment and negativity towards the father – mother fails to organise child psychologist for the child who was demonstrating seriously disturbed and distressing behaviour – child’s best interests require child to live with the father and spend limited time with the mother – child spend one half of each school holiday period with either parent. |
| Legislation: Family Law Act 1975, ss.60CC, 61D, 65DAA |
| Cases cited: Mazorski & Albright [2007] FamCA 520 |
| Applicant: | MR JOBSON |
| Respondent: | MS HALLIWELL |
| File Number: | CSC 294 of 2012 |
| Judgment of: | Judge Willis |
| Hearing dates: | 23, 24 and 27 February 2017 |
| Date of Last Submission: | 27 February 2017 |
| Delivered at: | Cairns |
| Delivered on: | 28 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Honchin |
| Solicitors for the Applicant: | Shades of Gray Lawyers |
| Solicitors for the Respondent: | Self-represented |
| Counsel for the Independent Children's Lawyer: | Ms Williams |
| Solicitors for the Independent Children's Lawyer: | Mrs Reaston |
ORDERS
Parental Responsibility
That the father is to have sole parental responsibility for the child, X, born (omitted) 2011 (“the child”). This is to include the selection of the child’s extracurricular activities.
The mother is to ensure that the child is taken to his extracurricular activities if they occur during the child’s time spent with her pursuant to the terms of this Order. In the event the mother is not able to get the child to his activity, she is to contact the father and advise him in sufficient time to enable the father to take the child to the event.
The child will attend the (omitted) School, (omitted) or otherwise as determined solely by the father.
Other than as referred to in these Orders:
(a)The father shall be responsible for the day to day care, welfare and development of the child whilst he is living with or spending time with the father;
(b)The mother shall be responsible for the day to day care, welfare and development of the child whilst he is spending time with the mother.
Living Arrangements
That the child is to live with the father at all times other than when the child lives with the mother pursuant to the terms of this Order.
The child will live with the mother as follows:
(a)From after school Friday until the commencement of school Monday each alternate weekend, or extending to Tuesday if Monday is a non-school day (this weekend time is suspended during the school holiday periods) commencing Friday 20 October 2017; and
(b)For one half of all the gazetted school holidays commencing with the school holidays in December 2017 being in the second half of the school holidays in odd numbered years and the first half in even numbered years. The child will spend Christmas Day with the parent with whom he lives/spends time with for the first half of the Christmas holidays.
(c)A period of 24 days in 2018 pursuant to the Orders of 7 August 2017 with mirror provisions for the Mother to give the Father notice and an itinerary.
(d)On the mother’s birthday for the day if the birthday falls on a non-school day, and from afterschool until 7 pm on a school day if the child is not otherwise living with the mother noting however, that this Order will not apply if this time conflicts with the block time provided for the child to spend with the father pursuant to the terms of this Order,
Mother’s Day/ Father’s Day
The child will always spend the Mother’s Day weekend with the mother and the Father’s Day weekend with the father. If the child would otherwise be with the father/ mother on the relevant weekend, the parties are to swap the weekend to ensure compliance with this Order. In that event, mother/ father will have two weekends in a row then the schedule will return to an alternating basis thereafter. This weekend is not intended to interrupt the other parent’s block time, pursuant to the terms of this Order.
Father’s birthday and child’s sister’s birthday
The child will always spend time with the father on the Father’s birthday and the child’s sister’s birthday (including any siblings born subsequent to these Orders) for the day if the birthday falls on a non-school day and from afterschool until 7 pm on a school day if the child is not otherwise living with the father. This Order will apply similarly to the birthday of any child born to the mother subsequent to these Orders. This Order will not apply if this time conflicts with the block time provided for the child to spend with the mother or father pursuant to the terms of these Orders.
Telephone and/ or Facetime/ Skype
When the child is not otherwise spending time with the mother pursuant to these Orders, the mother will have telephone/ Facetime/ Skype communication with the child on two nights each week at 6pm. The father is to initiate the first call of the week and the mother is to initiate the second call. Within 21 days of this Order, the father is to advise the mother which two nights each week are convenient to the child’s routine to have these calls. Thereafter, from time to time, if the child is engaged in any extracurricular activity on the set days the father is to give the mother 7 days notice and advise her of the alternate times to be adopted.
When the child is on holidays with either parent, the parent with the child will ensure and facilitate the child having telephone/ Facetime/ Skype time (no less than once each week) with the child during each week of the holidays that the child spends with that parent (subject to any reception difficulties if the parent is holidaying in an area out of range).
When a parent is not spending time with the child on Easter Sunday or Christmas Day, the parent with whom the child is spending such time with is to facilitate telephone/ Facetime/ Skype with the other parent. In the absence of any other agreement, the calls will occur between 9:00 am and 9:30 am.
Changeovers
Unless otherwise agreed in writing between the mother and the father, all changeovers on school days are to take place at the child’s school or day care. On non-school days, changeovers will take place at the (omitted) at (omitted) Shopping Centre, (omitted).
If either parent is unable to attend the changeover, then they may appoint a third party of their choosing to facilitate the changeover.
Counselling for the Child
The father is to ensure that the child continues to attend upon a child psychologist, or counsellor as nominated by him. The mother is to do all acts and things to ensure that if the child has an appointment (as advised by the father) during the time the child is spending time with her, that the child attends upon the appointment as directed by the father. Alternatively, if the mother is unable to take the child to the appointment she is to notify the father without delay and in sufficient time to enable the father to organise the child’s attendance.
Child’s Doctor
The father is to nominate the doctor who will be the child’s GP and both parents will ensure that the child attends on this doctor, except in the case of an emergency when the parties are permitted to take the child to the closest available medical centre or hospital. The mother is to keep the father informed without delay if the child is taken to the doctor during the time the child is spending with her NOTING that the father has sole parental responsibility for medical issues.
In the event the child is admitted to hospital or there is any medical or other emergency concerning the child whilst the child is in their care, that parent is to contact the other parent without delay. The Court notes that the Father has sole parental decision making in relation to significant medical issues.
Authority
These Orders shall serve as authority to permit each parent to receive copies of the child’s school reports NOTING that the father has sole parental responsibility in relation to long term education issues.
The father is at liberty to provide a copy of these Orders to the school or any doctors or treating medical professionals.
Each of the parents are at liberty to attend events that parents normally attend at school, subject always to the discretion of the school and to any specific Order herein.
Overseas travel
Each of the parties are permitted remove the child from the Commonwealth of Australia to holiday overseas with the child to any country that has ratified the Hague Convention into their law, during the time that the child is to spend with each parent pursuant to the Orders herein.
The travelling parent must provide the other parents six (6) weeks’ notice of the proposed overseas travel, a copy of the return flight tickets, a basic travel itinerary and emergency contact details for the child while overseas.
Passport
The parties will do all acts and things and sign all documents to enable a passport for the child to issue, within seven (7) days of one of the parties requesting the other party do so.
The child’s passport is to be held by the father.
At any time the child’s passport is due for renewal, each parent will do all acts and things necessary to have the passport renewed within thirty (30) days of receipt of the renewal notice or request of the other parent.
In the event that either party fails to do all acts and things necessary to enable a passport to issue for the child, the Australian Passport Office/ Department of Foreign Affairs and Trade is authorised to issue a passport for the child, notwithstanding that the other parent has not given his/ her consent to the issue of a passport or failed to sign the relevant documents.
Interstate Travel
That in the event either parent travels interstate with the child during their time pursuant to these Orders, they are entitled to do so and do not need the agreement of the other party. Each party will however notify the other that they are travelling interstate with the child and indicate the destination.
Other Issues
During the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not discuss the Court proceedings, Court orders or any aspects of the Court proceedings with the child or in the presence or hearing of the child.
In the event there are any future disputes about parenting issues, the parents are to jointly attend upon a dispute resolution counsellor at the Family Relationships Centre or other dispute resolution service or mediator and each are to genuinely engage in an attempt to resolve the issue.
The Independent Children’s Lawyer is discharged.
All outstanding applications are removed from the pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Jobson & Halliwell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
CSC 294 of 2012
| MR JOBSON |
Applicant
And
| MS HALLIWELL |
Respondent
REASONS FOR JUDGMENT
The parents in this matter are unable to agree about the living arrangements of their only child, X, born (omitted) 2011 (the child) aged five at the time of trial. Mr Jobson (the father) is the applicant and he is seeking orders that X primarily live with him and spend time with the mother each alternate weekend. He also seeks orders that he has sole parental responsibility. There are a number of other orders sought as set out in the father’s case outline which include orders for special occasions such as Mother’s Day, Father’s Day, each of the parent’s birthdays, the birthdays of other siblings and the child, Christmas Day, telephone and skype and changeovers which are all embodied in the orders starting at 1 and progressing through to 18. The father has been represented by Mr Honchin of Counsel.
Ms Halliwell (the mother) who has represented herself in these proceedings seeks orders that in some ways mirror the father’s. The mother seeks orders that X live primarily with her; that she have sole parental responsibility and a myriad of other orders as set out in her case outline numbering 1 through to 16. Although the mother’s orders do not include the holidays the mother has indicated that this is an oversight and she seeks to have an order for one half of all the school holidays for herself and also the father.
At the conclusion of the mother’s case outline[1], the mother has made reference to equal time. The mother stated that in the event the Court finds that an equal time arrangement is in the child’s best interests the mother asks for an arrangement involving set days each week in which the child is in each parent’s care, to enable both parents to engage the child in extracurricular activities. An example of this would be after school Friday until the commencement of school Wednesday each alternate weekend and after school Monday until the commencement of school Wednesday on the other week.
[1] On the second last page.
By the conclusion of the hearing the mother has deleted reference to her order 10 and order 14[2]. In relation to her proposed order 15, which is an ongoing order for random drug tests up to four times per year with no end date (so presumably until the child turns 18) and that each party undertake such random drug tests and failing to undertake the test will result in that parent being required to undertake supervised visits through Relationships Australia. The mother has indicated that the duration of supervised visits through Relationships Australia will happen until, “the party with the positive drug tests produces a clear test at which time face to face time will occur.”
[2] Mother’s case outline.
The mother has also conceded that her proposed order 8 wherein the parties are supposed to give notice to each other if they take the child out of the “(omitted) area” which includes a provision that, “a request in writing is to be sent no later than 42 days prior to their departure. If travel is agreed the mother/father is [sic] to provide the mother/father with the following information in writing no later than 28 days prior to travel after which there is reference to flight itinerary, phone contact, accommodation details, options for makeup time and details of where the child is travelling,” would be entirely inappropriate for all travel outside of the (omitted) area. That would effectively mean that each of the parents are restricted to not leaving the (omitted) area without giving 42 days’ notice to the other party which means that trips to local places such as (omitted), (omitted), the (omitted) and all of the surrounding areas could not be contemplated. The mother has conceded that if this order was to be made at all it could only relate to interstate travel.
In relation to order 6(d) the mother has conceded that her proposed order that the parents shall, “not post or cause to be posted on social media any image of the child whether by themselves or other persons including the child” should have the word “unrestricted” inserted prior to the words social media. The mother has sought an order of the Court set out at order 11 which is, “each party is permitted to have one witness attend changeovers at the (omitted). Each party is to ensure their respective witnesses are aware of their role as a witness.”
The Independent Children’s Lawyer
The Independent Children’s Lawyer in this matter, Mrs Reaston, was represented by Ms Williams of Counsel. The Independent Children’s Lawyer put forward orders at the conclusion of the trial supporting the child living with the father and the father having sole parental responsibility. Whilst each of the parties are to have responsibility for the day to day care, welfare and development of the child an order is sought that child attend extracurricular activities as proposed by the father including in the mother’s time.
Other orders are fairly standard with Mother’s Day, Father’s Day, special days, Easter, Christmas Days, half of holidays, telephone, skype and changeovers. Whilst the draft included that the child attend (omitted) School it is conceded by the Independent Children’s Lawyer’s Counsel that the order should include, given the order for sole parental responsibility, “or otherwise as determined by the father.” Importantly, the Independent Children’s Lawyers sought an order that both parents arrange for the child to attend upon a qualified child psychologist, psychiatrist or therapeutic counsellor without delay. At the conclusion of the trial, given the nature of the evidence, I made that order to which, by that stage the mother finally agreed.
The material relied upon by each party was read into the record. Each of the mother and father gave evidence in this matter as did the father’s wife, Ms K. The Family Report Writer, Ms E, gave her evidence at the conclusion of the trial. The evidence of the Family Report Writer has been compelling and a matter upon which the Court has placed significant weight.
The Independent Children’s Lawyer organised for a psychiatric assessment of these parties by Dr B when the parties previously litigated. Dr B’s report filed on 8 April 2013 was relied upon by the Independent Children’s Lawyer. None of the parties required Dr B for questioning.
A statement of fact in these reasons represents a finding unless stated otherwise.
History – previous trial
Unfortunately this is not the first time that these parties have attended Court for a final trial. They have had a long history of litigation following their separation in October 2011 after a nine year relationship which commenced in (omitted) 2002. The parties lived together and became engaged on (omitted) 2006 and married in 2008. The father was born on (omitted) 1980 and was 21 or 22 when the parties commenced living together. The mother was born on (omitted) 1983 and was 18 or 19 at the commencement of their cohabitation.
After the parties separated in October 2011 when X was only seven months old, their litigation commenced with the mother seeking a domestic violence order on 14 April 2012 and the father seeking orders to have regular contact visits with X. After the parties separated in 2011 the mother left and took X. For a period of about eight months the father had no contact at all with X. It was only through him initiating Court action that resulted in the Court ordering a regime for the child to start spending time with the father starting with limited time which ultimately built up into more significant time.
The father’s time with X commenced by way of two and a half hour weekly visits for four visits and slowly increasing to three hours. Then time increased to include Tuesday afternoon from after day care until 6:00 pm. Gradually through 2012 and 2013 the orders increased the time that the father could spend with X. In April 2013 during a Court ordered assessment the mother informed Dr B that she wished to move to Brisbane. The mother also told Dr B that she currently lived with her son in a rental unit, she had a new partner but, “they are not living together”. The mother said it was a very positive relationship and very different to the previous one. The mother stated that her new partner lives in (omitted) and that he wants to move to southern Queensland with her and her son.
By 2014 the father was living in a de facto relationship with his current wife, Ms K. In March 2014 there were further Court orders for the father to have increased time from day care every Tuesday until 5:15 pm and each alternate weekend from 2:00 pm on Friday to 4:30 pm on Sunday. The matter was set down for a final hearing on 5 June 2014 and on that hearing date the mother had not prepared her final material and time was lost on the first day with trying to get the mother to sort out her material in preparation for the trial.
The trial commenced and the father was cross-examined at the end of which negotiations were commenced and the mother, without being cross-examined, agreed to orders that have been in place up until the present time. These final consent orders were made at a time when each of the parties were self-represented and with the assistance of the Independent Children’s Lawyer represented by Counsel. The parties agreed that they would have equal shared parental responsibility and that the child would live with the mother other than when the child was living with the father. The orders set out, at order 3, a regime going through 2014 increasing the father’s time with the child and continuing in 2015 to a point where the father was to have each Tuesday from 2:00 pm until the commencement of day care on Wednesday, each Thursday from 2:00 pm until 5:30 pm and each alternate weekend from 2:00 pm until the commencement of day care on Monday.
These final orders were made by consent (the final consent orders) at the trial. The consent orders also provided for the mother and father to spend time with the child on special occasions as can be arranged (including Christmas, Easter, child’s birthday, and each party’s birthday, Mother’s Day and Father’s Day). Importantly, at order 8 the parties agreed that on or before Easter 2016 they would attend upon a family dispute resolution centre or qualified mediator to review the arrangements for the time the child spends with the father, “with a view to increasing to an equal time arrangement” and that prior to such review each parent will have completed the post-orders parenting program.
Order 9 provided that if there were any further disputes about parenting they were to jointly attend upon a Dispute Resolution Counsellor and in the event that they were unable to agree they were to file a section 60I certificate and have liberty to apply. Restraints were included that each party was restrained from relocating the child from the district of (omitted), using illicit drugs, consuming alcohol to access, or denigrating the other parent.
The consent orders included an order that neither party will relocate. When the period of the time referred to at order 8 arrived to “review” the orders for the purpose of likely moving to equal time, the mother instead of moving to equal time decided that she would like to relocate the child with her to (omitted)[3]. It was not until the morning of this trial and after the trial had commenced that the mother formally informed the Court that she was not going to press ahead with her application for relocation. This is therefore the second time that the mother has raised the prospect of relocation and the second time she has moved away from that position at trial.
[3] About 2,000 kilometres from (omitted)
At the time of this trial the father is aged 36 and the mother is 33.
Along with the evidence of the parties and their witnesses at the trial, the expert evidence included psychiatric evidence. Dr B sets out the background of each of the parties. It can be seen in the report that each of the mother and father used cannabis when they met. The mother admitted to smoking cannabis until about 2012. She admitted to a previous history of getting drunk. She admitted to the use of ecstasy whilst she was in the (employer omitted). The mother was placed on a substance abuse program. The mother has had a history of suffering distress in the workplace and has been diagnosed with post-traumatic stress disorder.
Her first contact with psychologists was when she was in the (employer omitted). The mother maintains she was a victim of workplace bullying. On another occasion the mother claims she was sexually abused by an (employee omitted) who touched her inappropriately. She claims he was penalised. At the time of her psychiatric assessment the mother had a WorkCover claim in progress relating to her claims that she was the victim of multiple assaults during (omitted) work for some two years. The mother says she was subjected to various assaults including being bashed, spat on, punched, pulled and prodded. The mother says she had taken up (omitted) work because she said she wanted to (omitted).
The mother had seen two psychologists by this time. The mother has a history of anxiety and postnatal depression. The mother has self-harmed in the past, cutting herself a couple of times, as referred to in Dr B’s report when she was aged 22 or 23. The mother also advised of attempted suicides in 2007 and 2008 from taking overdoses of tablets. The mother was admitted to hospital overnight, saying this incident arose when she was in, “a bad place at work and at home.” The mother said she had had smaller overdoses on other occasions not requiring hospitalisation. The mother reported that she was sexually abused by a next door neighbour.
It is fair to say the mother has had a history of significant trauma starting early in her life. Dr B concluded that the mother has a borderline personality disorder to a relatively mild degree. He also opined that, “people with borderline personality disorder respond to stressors badly with emotional disturbance, anxiety, behavioural disturbance” and he considered it was relevant in the context of this family law litigation. Dr B concluded that he did not think either of the parties has any degree of psychiatric illness that would preclude them from having a child live with them.
It was recommended that the mother have continuing psychological support and that this would be helpful. Dr B noted that, if at any stage the mother became unable to function as a parent, he believed the father would be perfectly capable of having fulltime care of this child. Dr B noted that the mother would warrant some long-term psychological surveillance. He considered that at that stage, in contemplation of the mother’s relocation, he understood why she wished to relocate to south-east Queensland. Dr B has said, however, that he also believed the father who lived in (omitted), has a lot to offer his child.
Unfortunately in the time that has transpired between the increasing time for the father in the Consent Orders and this hearing, the matter has now returned to Court. The father says that he arranged a mediation in compliance with the consent order in 2014, in both July and August. The mediation was not successful. By 23 October 2015 the matter was back in Court and the mother then indicated that instead of considering equal time as provided for in their consent orders, she was wishing to relocate to (omitted), thus avoiding the move to equal time which the consent orders contemplated.
Interim applications have been filed by the father due to ongoing disagreements about the father’s time with X. The father had sought orders to travel with the child in November to the (omitted)/Brisbane area which the mother had not agreed to. The Court heard the father’s application and orders were made for the father to undertake that travel with the child.
Orders were made on 23 October 2015, also, that the child will attend (omitted) School from the beginning of 2016.
Given the parties continued disagreement an Independent Children’s Lawyer was reappointed and the matter has been ultimately set down for trial. This trial has proceeded over three days.
I have had regard to all of the evidence contained in the affidavit material and the oral evidence and exhibits. I have been very much assisted by the very experienced Independent Children’s Lawyer, Mrs Reaston.
A further application was made by the father to take X to the (omitted). The father, on 6 November 2015, filed an Initiating Application seeking final orders that the child live with him and he have sole parental responsibility. He sought interim orders that the child live with the parties on a week about basis. In the Notice of Risk the father included his concern that the day care staff had mentioned to him that if the mother is in a bad mood then X seems to be aggressive towards his friends and teachers, bad mannered and does not listen.
The mother’s response filed on 26 November 2015 was that she be permitted to relocate with X to (omitted) and that the child spend time with the father the first week of the school holidays at the end of the first, second and third terms and the last week of the school holidays in the first, second and third terms and two weeks at Christmas. If the mother was to be unsuccessful in her relocation she proposed having sole parental responsibility and that the child live with the mother and spend time with the father in alternate weeks from 9:00 am Saturday until Sunday at 5:30 pm and special occasions. This alternate proposal was entirely contrary to the mother’s previous indications in the consent orders.
In her Notice of Risk filed in November 2015 the mother made reference to incidences that had occurred four years earlier around the parties’ separation. She referred to an incident in which the father had threatened to kill himself. She says he suggested to her that she join him in suiciding and that he started tying a noose. The mother says she tried to ring 000, the father disconnected the phone and that the police arrived. They recommended that the mother and child leave the house.
The mother also alleged in the Notice of Risk that the father suffered an undiagnosed mental health condition; that he swore at the child; and that the child dances “highly provocatively” and has seen “daddy and Ms K do it with their friends.” The mother also said the father manipulates the facts and lies to medical practitioners. The mother says the father continues to portray her as psychotic and she finds it distressing and isolating. The mother made allegations of the father harming pets and threatening her that if he didn’t get sex from her he would go elsewhere.
She also made allegations that the father pushed her into a brick wall, wrestled her to the ground, and called her a nutcase and a manipulative psychopath. The mother said the father reversed a car back onto her and X. In April 2016 the father filed an amended initiating application amending the final orders sought providing that X should spend time with the mother from after school Friday until the commencement of school each alternate weekend, or Tuesday if Monday is a pupil free day or public holiday.
The father, again, had to file an application in a case on 15 June 2016 seeking to have X spend time with him for his own wedding. The mother would not agree to the additional time to facilitate this. The father married his partner, Ms K, on (omitted) 2016. The mother has been ordered to pay costs on at least two occasions given her unsuccessful oppositions to the father’s interim applications. On 18 October 2016 the mother was ordered to pay $1,000.00 to the father by way of costs following an interim hearing the Court ordered that X was to spend time with the father from Friday in each alternate week until the commencement of school Wednesday and in the other week with the father from after school Tuesday until the commencement of school Wednesday and other times as set out at holidays.
The father and his wife now have a child of their own, Y (Y), who was born on (omitted) 2016 and is X’s only sibling. Unfortunately throughout 2016 and some of 2015 there has been increasing concern about X’s behaviour. There have been incidents of him acting out, being violent, throwing things around the classroom (including chairs), being obstructive and defiant, upset, distressed and out of control with his emotions. This behaviour has caused major incidents at school and day care and has now become a major and concerning feature of X’s behaviour. This issue occupied significant time at the trial.
The father proposed mid to late 2015 that the mother agree to an order that X be taken to a child psychologist. The mother refused this and steadfastly maintained the position. The mother maintained this position until the end of this trial. She decided that it was best for X to first see a paediatrician, before seeing a child psychologist or therapist. Whilst the mother has been resisting the father’s suggestion and refusing to agree that a child psychologist was the appropriate expert, X’s behaviour has continued to deteriorate to a point where at the trial his behaviour is at crisis point.
This refusal to accept that the father’s suggestion was correct has been maintained despite the mother herself being unable to manage his behaviour. X’s behaviour has come to a point where the mother has contacted X’s father on three occasions requesting his immediate help. X has attacked his mother, kicked, punched and hurt her. He has acted out at the day care centre for upwards of 45 minutes to an hour, completely out of control and distressed, stating that nobody cares for him and nobody is listening to him. So violent has his behaviour been that his class was evacuated when he was in grade 1 this year on 30 January 2017, when X picked up a chair and threw it across a group of desks.
The following day another major incident at school occurred with X kicking the door loudly, refusing to follow instructions, picking up the teacher’s items and throwing them across the back of the room. Another incident occurred on 2 February 2017 wherein the mother was contacted by (omitted) School regarding X’s behaviour. A further incident occurred on 7 February 2017 in which X had a pain in the stomach, didn’t make it to the toilet, and subsequently threw his faeces on the toilet floor on purpose. He said he did this because boys were teasing him.
Then another major incident occurred at school on 17 February 2017 with X throwing furniture across the room and swearing at students saying to them all “you’re all fuck heads” attempting to kick a student; kicking a glass door; throwing items; opening the fridge and taking out lunch boxes and throwing them at the teacher; hitting her in the chest area; picking up other lunch boxes and throwing them across the room as he screamed. This tragically is now the end result of this child’s failure to have seen an expert in the last 14 or 15 months which the father had proposed and which the mother refused to agree to. I am satisfied that the mother’s refusal to agree to the suggestion was primarily because the mother wished to maintain control and that she was not able to put the child’s best interests ahead of her desire to keep the father out of the decisions made regarding X.
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).” The Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 made significant changes applying to matters filed on or after 7 June 2012, which this application is. As a result of those legislative changes, when applying the primary considerations under s 60CC (2) the Court is required to give greater weight to the second consideration, that is, protecting the child from harm.
When I determine the best interests of X, I will consider also the several additional considerations set out in s.60CC(3) when evaluating each of the parties proposals for X’s future living arrangements. Reference will be made to the allocation of parental responsibility. If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked.
In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.
In these reasons a statement of fact represents a finding unless indicated otherwise.
The Witnesses
The Father
The father again gave evidence and was cross-examined, as happened at the last hearing. He gave his evidence honestly and openly. He is quite a measured person and his reactions in situations such as the incident at the day care centre which occurred the night before this trial commenced, were calm and responsible. X had run completely amuck at the after school day care centre screaming and yelling, throwing things around at his friends and the teachers and assaulting his own mother. So great was this event that the mother rang the father for assistance.
The father went straight to the day care centre when contacted by the mother. Upon his arrival he spoke to the child who by that stage (according to the mother) was exhausted from having been elevated and extremely emotional for upwards of 45 minutes. The father spoke to the child and told him his behaviour was unacceptable. This, as I have said earlier, was the third time that the father has been called by the mother in times of high stress and distress for the child with X acting out physically. On another occasion the mother could not get X to get out of bed to go to school and phoned the father to speak to X to help her get him to go to school.
The father was asked about his drug use. The father has been very candid about his early drug use back when he first met the mother when he was 21 or 22. He admitted that he, on one occasion, felt so low that he contemplated suicide. He said he could remember the incident but not everything that led up to it but he was in a bad place and that his depression was relationship based.
The father denied the mother’s versions of events in relation to the incident in which she said he tried to grab her phone when she was in the bathroom. He denied that anything he did caused any bruises on the mother’s arm. He recalled the incident in which the mother said she took his phone from the bathroom. He could hear her doing that. He agreed he tried to get the phone off her and that he smashed it. He denied that he caused the bruises and said the mother stood in the way of him leaving when he was going outside to get into the utility. The father said the mother put the child on the back of the utility several times as he was trying to leave. He denies that he was trying to run the mother over.
He concedes, though, that through his actions, whatever they were, that he was charged with dangerous driving and said he pleaded guilty to it. In relation to another incident raised by the mother, he agreed that he had a bandage on his hand in his wedding photos and that this was caused because he slammed a door and in doing so broke his own knuckle. He said that behaviour on his part resulted after an argument following the Bucks night and Hens night the night before. He also admitted that on one occasion he punched a wall when he was 21, 22 or 23 when his flatmate kicked a door in.
He said he had grown up a lot since then and settled down. The father says he is happily married and now the father of a new baby, Y. It was evident that the father has matured considerably. He is now a responsible father of baby Y and X. I accept that there is no violence in the father’s current relationship. I regard the alleged violence that occurred years ago as situational. I accept the father’s version of events as to what occurred between himself and the mother when he was 21 or 22 years old.
I was impressed with the father’s evidence and his preparedness to make admissions against his own interest. He has been, in my view, an honest witness.
Their relationship, back when they first met, was when each of them were young. It was a time when each of these parties were experimenting and taking drugs and a time of high emotion. I’m satisfied that the father in 2017 is a mature and sensible child-focused parent who is genuinely seeking to be involved and have a positive influence in the life of his little son, X. The father is the more child-focused of these two parents.
The father has tried his utmost, in my view, to deal with what has been a very combative, difficult and obstructionist attitude from the mother post separation. The mother has taken any and every opportunity to turn decisions about X into a difficult, if not impossible exercise when the father has attempted to engage the mother in any decision-making process. The serious issue, of the child needing to go to a psychologist or counsellor is an obvious example in which the father was well-attuned that the child was acting out badly and needed professional intervention. The father has an ability and capacity to listen to others, as he has done to day care workers and the guidance officer, about the unfolding and continuing problem about X’s behaviour. The father processes such information sensibly.
Problems of significant behaviour, school suspensions, and X being out of control at aged only five with violent behaviour in my view make it abundantly clear that psychological behavioural intervention was required. Regretfully this issue has been left languishing for too long by the mother and X has now reached a fever point of distress and out of control behaviour. There was no valid reason for the mother to refuse to comply with the father’s request for psychological assistance for X. The mother has been procrastinating and controlling.
The evidence of the Family Report Writer to which I will refer to in more depth elsewhere, was unequivocal that this child needs to be taken to psychological assessment, counselling and therapeutic assessment “yesterday”. So great is the child’s need that Ms E deposed if he was suffering a medical equivalent of his psychological behavioural problems he would be in intensive care. The mother made allegations that the father is abusive, psychologically, emotionally and physically. Having seen both parties give their evidence, I reject these allegations.
Regretfully most of what the mother had to say was embellished and dramatized or false. She has also alleged that the father uses the child, “to get at her.” I do not in any way accept this. This accusation is supported by the mother’s own psychologist. As seen in a letter received by Ms E, the mother’s psychologist has slavishly adopted, without question, everything told to her by the mother.
The Court however has evidence from both parties and much more evidence available than the mother’s psychologist has available to her. The mother’s psychologist is not the trier of facts. Her role is to support the mother, not form conclusions based on limited facts. When the father was in a relationship with the mother, their relationship was characterised by drug use by both himself and the mother. Given those heady days and high emotions it is difficult to know the ins and outs of all of their relationship. I am satisfied however there have been heated arguments and abuse of drugs and alcohol by both the mother and the father.
I do not consider that the father represents a threat to the mother or to this child arising from family violence or in any other way. The slamming of doors and the father injuring himself and the mother consuming alcohol to excess and taking drugs with the father, in my view, is symptomatic of their poor relationship. The psychiatric evidence is that the mother has a personality disorder to a mild degree. The mother is not an easy woman to engage with and she has made the father out to be unreasonable. The mother seems to overlook entirely her own history of drug use and mental health incidents.
I have formed the view that he is a very sensible child-focused parent with much to offer X as a father. Most of the mother’s accusations are without foundation. An example is the mother criticising the father for not allowing her, “equal time on the child’s birthday in 2016.” The father, in fact, offered her the night before the birthday and up until 12 noon. I do not see this as unfair or not giving the mother equal time. The mother was also invited by the father to attend the birthday party and chose not to. The mother complains she had “only three and a half hours” which I do not accept.
The mother had from after school, the day before the birthday, the night prior to and eve of the birthday, the birthday morning, and up until 12 noon of that day. When I said to the mother that she had the privilege of spending the birthday morning with young X, who would no doubt wake up early, the mother said, “He doesn’t wake up early.” It’s difficult to imagine a child of this age not waking up early on their birthday. The mother said she should have had half of a 12 hour day and that, in fact, she could have had from 6 am to noon.
Much of the mother’s evidence has been implausible, false or embellished. Unfortunately the mother has been a very poor witness. The father has been reasonable in his pursuit of medical attention for the child. The mother however has been dismissive of his concerns in the same way she has been with his request for the child to seek psychological assistance. The father started asking the mother about the child’s behaviour and the need for him to seek assistance in around mid-2015. Even at the date of trial in February 2017 this had not been agreed to or actioned by the mother.
Family Violence
There is nothing in the domestic violence incidents that causes me to consider that the father represents a threat to the mother or that he has deliberately caused her harm. As to the tussle over the phone, the mother originally took the phone out of his bag and started perusing the father’s phone herself knowing, as she said, that she would find communications he had had with a third party. The break-up of a relationship is a delicate matter. The mother complains about the result of her invading the father’s privacy and taking his phone to steal a look at his messages. These are situational circumstances when tempers run hot. I do not accept that the bruises the mother put forth as now being caused by the father were, in fact, caused by the father. Having heard each of the parties, as will be apparent in these reasons, I prefer the evidence of the father. In relation to the bruises, the father said that the mother fell when she tripped on the child proof barricade as she was racing through the house. I accept this. The father is an honest witness. The mother has unfortunately distorted much of the evidence in this matter. I regard the father as being child-focused and in difficult situations has nonetheless tried to maintain as an objective involvement with the mother as he could.
This has been to no avail as it is clear to me that the mother has many unresolved issues with the father and she harbors deep resentment of the father for his willingness and desire to become involved in X’s life. It seems to me that this is the mother’s greatest source of irritation regarding the father.
Father’s Wife - Ms K
I note that Ms K has been involved with the father since around 2012 and that she has appropriately supported the father. This is contrary to the assertions of the mother that Ms K is becoming “involved” in matters she ought not to be or exercising parental decisions about the child. Ms K was cross-examined and gave evidence that she had learnt a lot from the first trial and that anything she may have been doing wrong at that stage was certainly corrected.
The evidence of Ms K indicated to me very strongly that she is in no way trying to undermine the role of the mother. She fully appreciates that in this family dynamic she plays the role of supporting the father and she is essentially a stepmother. Since Ms K was last in Court, she and the father have a child of their own, Y. I had a strong impression that Ms K was very keen to include X into the family circle which included X’s half-sister, Y.
Much was made by the mother of alleged interference in parental responsibilities by Ms K. This related to an occasion when Ms K, acting as the father’s agent, delivered up X one morning to day care. The day prior, the father had been to the doctor and obtained some medication for X (and informed the mother of this). The father asked his wife to take the medication to day care with X and hand it to the staff and explain that this was his prescribed medication. Ms K did so. Upon presenting the medication to the staff she was asked to sign a form saying that it was all right for the staff to administer this medication, which she did.
The mother however relied on this conduct to suggest that Ms K had overstepped the mark and was making “parental decisions”. The mother, when questioning Ms K, even added the comment that if the father had been away (which he was), then Ms K ought to have contacted the mother who worked about 10 minutes away from the day care centre, implying that the mother would then have signed the document.
In my view this was absurd. I see nothing improper about Ms K delivering up X together with his medication as she was asked to do by the father. The child was in the father’s care and he has authority to make day-to-day decisions according to the legislation. If he requests his agent to deliver up the medication, that being Ms K who is well aware of the doctor’s appointment and who has a strong association and fondness for X, there is nothing at all improper about that. In fact, Ms K would have been condemned if she had not delivered up the medication.
Unfortunately it is clear to me that the mother harbours strong resentments about Ms K’s involvement. It is unhelpful for the mother to adopt hostilities towards Ms K when there is no basis for this. There is no suggestion that Ms K has done anything other than provide for X’s best interests. If only the mother could put aside her grievances and grudges and ill-feeling toward the father and everyone associated with him, she would see in Ms K an ally and a person who is going to be a significant and loving step-parent for many years in X’s life. She is the mother of X’s only sibling.
It is not in X’s best interests that the mother carry her unresolved issues and hostility years after these parties have separated particularly at a time when X’s family is extending. There is no cause for any hostility. Many of the mother’s grievances relate back to when she was in an unhappy relationship with the father. It is clear that the mother has not moved on in any way. I had a strong impression that she is, in fact, resentful of the father and his new life and family.
I am satisfied that Ms K is an honest witness. She respects the role of the mother, and has a great fondness and sincere concern for X. Ms K plays a very supportive role in that family dynamic. The mother has raised during this litigation issues with Ms K before and tried, without success, to have orders made where Ms K is not to make any parental decisions. The mother has a skewed view of the legislation and of what parental decisions encompasses. There is no evidence to support such an order and I am satisfied that making such an order would lead to further unnecessary litigation.
The Mother
The mother says she has had a lot of hardship in her life. She says she has been harassed and bullied, assaulted, or sexually assaulted in a variety of work settings including the (employer omitted), her (omitted) work and in her (omitted) work. I have had regard to those matters and to her claims of sexual abuse as a child. The mother, however, is an unimpressive witness. In giving her evidence, routinely the mother said she could “not recall” repeatedly to questions that the mother might have to give answers to against her own interest that were often met with, “I don’t recall.”
The mother has been untruthful in her evidence on a range of issues relating to parenting issues. She has been untruthful in dealing with the father. As an example, she told the father that he could not have any block time at Easter as, “she had plans.” When queried about those plans, they amounted to her parents coming to (omitted). When queried about whether her parents did actually come, she said that her father took ill and the parents did not come. Nonetheless, the mother did not change her attitude or contact the father to say that her parents did not come. Her offer of “block time”, as she described it, for the father was five or six hours on Easter Sunday. That is the mother’s idea of the father “sharing” the Easter Holidays and all that the mother was prepared to offer despite the father asking for more time with X.
The father’s efforts at asking for more time have routinely been met with an obstructive attitude from the mother. Routinely, she will not even answer the inquiry or she answers only part of his inquiries. I am quite satisfied that the mother has done this in a power play with the father. The current orders require some agreement between the parties about special days. The mother, having the child in her primary care, has used such opportunities to exercise the upper hand and dictate and limit X’s time with the father.
The mother’s evidence on the topic of her refusal to agree to a child psychologist or counsellor for X, when it was obvious that he needed one, was most unsatisfactory. The mother wrote emails and told the father that X was too young. She routinely stalled in replying to the father’s queries.
The mother was questioned about obtaining a referral to the paediatrician which she did only days before the trial. She gave evidence that a person that the father had made an initial consultation with to have counselling sessions with X, Ms M, an experienced child psychologist, would not be appropriate for them to use as Ms M has been now tainted by the father approaching Ms M. The mother said she assumes that the father would have told Ms M about issues to do between herself and the father. When the referral obtained on 2 February 2017 by the mother from her own doctor was called for and produced to the Court, it was clear that in fact the mother had been telling her doctor about issues to do with her “custody” and her view of the father’s negative effect on the child.
When the mother was questioned about obtaining her referral, she denied that she went into those matters saying she reported that X’s behavioural issues were mostly associated with his attendance at school. Material[4] from the (omitted) Medical Centre on 2 February 2017 states:
“Mum reports worsening of behaviour at school, especially after being at father’s house. Upcoming court custody case. His mother describes a worsening of behaviours at school this year – throwing chairs in classroom, standing on tables, offensive language. I’ve asked mum to ensure that independent reports are obtained. Mum states he doesn’t behave this way at home. Main issues have been height, weight – 40 kilograms – and grommets; awaiting tonsillectomy.”
[4]Exhibit ICL 3.
When the mother was faced with this evidence, she refused to accept that she had said those things. The mother said that she had said the main issue was with his tonsils check. I do not accept her evidence.
The mother told the father that she had spoken to the guidance officer at school, though she did not tell the father at that time about this even though she knew he was deeply worried. The issue was deliberately left languishing for too long. As the trial approached and X’s condition continued to deteriorate, the mother made an appointment on 2 February 2017, just days before the trial, for a referral.
When queried about why it took her until 2 February 2017 and why she had not acted back in November 2015 when the father had again (as he did on various occasions) raised the issue with the mother, the mother said that she did actually have an earlier appointment for 4 January 2017 with her doctor to get a referral for X. The mother said however, that she had to cancel that appointment on the day as she was too sick to leave home and attend. The mother has a myriad of medical conditions and psychological conditions. One of her medical conditions is a cyclical gynaecological issue. The mother said that she suffered that medical condition on 4 January 2017 when she had the appointment with her doctor for a referral for X. She explained that she was too sick herself to get out of the house and go to her doctor to get the referral. This evidence turned out to be untruthful. It was revealed through her own bank records that were produced on request during the trial that on 4 January 2017, the mother had indeed been out driving from her home in (omitted) to (omitted) Shopping Centre, a major shopping centre in (omitted) and a drive of probably 20 minutes from where the mother lives. The mother had been out shopping. She may have done other things.
Even when faced with her own bank statements showing she had been shopping at Coles in (omitted), the mother still denied that she was out of the house. The mother then reverted to her often used answer “I don’t recall.” The mother persistently refused to make any admissions against her own interest.
The mother’s dishonesty in dealing with parenting issues is also seen on the topic of X being overweight. X is medically obese. He is five years old and weighs 40 kilograms. The mother told the Court under oath in cross examination that she had taken steps to address X’s weight gain.
When giving evidence about X’s weight gain and in answer to the question about specifically what she had done about addressing that weight gain, the mother said that she had “stopped all of the junk food coming into the house”. When asked about what junk food came into the house, she said it was muesli bars and some crisps that occasionally were put in the child’s lunchbox. When queried as to the success of her efforts to, as she described it, “monitor his portion sizes” and make sure his “new meals are nutritious”, the mother had to admit that X had not really lost any weight. The mother said that he was no longer 40 kilograms but was now 39. It was pointed out to her that the letter from the doctor as a result of the visit on 2 February 2017 said he was at 40 kilograms.
The mother’s evidence about her not bringing junk food into the house was untruthful. In her bank records, there were myriad of entries for fast foods around December 2016, January 2017 and February 2017 which were peppered with entries for dinner from McDonald’s, pizza from various pizza shops and KFC. There were other entries that the mother claimed were for herself such as Red Rooster, (omitted) ice cream, Oreo biscuit shakes from McDonald’s, KFC for lunch and other junk food.
The Mother had earlier explained to the Court that she herself was having an operation, a gastric sleeve, as a result of her own weight gain. This gastric sleeve was to happen a few weeks after the trial in March 2017. Despite the operation in Brisbane being so imminent, the mother once again had not clarified with the father what the changed living arrangements are to be with X’s care. Through dialogue with the witness and Counsel for the father, it took a matter of minutes for the Court to ascertain from the mother the obvious. That is that the mother needed to fly away to Brisbane, stay for a period of days and come back. Therefore, it was obvious that X had to go to the father during this time. It was obvious that given the time of her flight, that X had to go to the father the day prior to her flight and come back to her the day after she arrived. All arrangements that the father has tried to make with mother prior to this have been used by her as an opportunity to hold the father in abeyance and cause unnecessary frustration and confusion. This topic was a prime example of the mother’s deliberate controlling procrastination.
The mother clings to the balance of power and in doing so, shows her lack of respect for the father’s role in the life of X and as a person. Everyday arrangements become opportunities for the mother to delay and create confusion and indecision about what is to happen, when dealing with the father and issues regarding X.
In questioning about the child’s spectacularly angry behaviour at the day care centre, the mother told the Court that after the very violent outburst by X, that in order to help him calm down, she told him that they would go home and have his favourite tea, which was chicken wraps. The mother described that as a home cooked meal. The mother added, he “loves to help cook”.
On that very day, there was an entry at KFC in the mother’s bank statement for around $20.00. When the mother was shown that entry, she indicated that that was not for dinner but that was, in fact, her own lunch. I have trouble accepting her evidence. There were other entries when the child was not in her care which were for Oreo biscuit shakes from McDonald’s and Red Rooster, (omitted) ice cream. I do not accept the mother’s evidence about her giving the child nutritious meals and not having junk food in the house. The mother has changed her evidence on a range of topics to suit whatever she wants her case to be. This is the behaviour that the father encounters in his dealings with the mother in regard to issues which arise with X on an ongoing basis. The mother is not honest and open in her communication with the father whether it is to do with day to day issues or long term issues.
The mother stated expressly in her evidence that she has a sense that the father controls her through the child. There is however no evidence to support this assertion. There is however evidence that the mother uses the child to control the father’s involvement and to preserve and enable her desire to have the final say at the last moment about most matters involving the father and X.
The mother made allegations that the father is abusive psychologically, emotionally and physically. I do not accept this. It is a baseless assertion. The mother seeks to have orders for drug testing indefinitely into the future and yet begrudgingly admits that there is no evidence for years of drug use by herself or the father for many years. The mother is living in a past time zone going back somewhere from 2002 to 2011. Her narrative of events has not changed.
The mother expects standards of the father that she herself does not comply with. It was clear in an email when the father was asking for extra block time with X that the mother wanted to make sure that the father was going to be home the whole time. The mother queried whether the father would be working when the father asked for block time with X. The mother’s response was “I don’t understand how you could be taking time off. It’s very busy time now. How can this happen?” I am satisfied, despite the mother’s denials, that this was a request for the father to explain how he could get time off. The mother works full time. She has no hesitation in putting the child into vacation care in the holidays, before school care in the mornings and after school care in the afternoon until early evening. She has others taking X to and from school. It has never occurred to the mother that the father, if he wished to, is entitled to do the same.
The mother has, when she chooses to, has very strict views about interpretations of the orders of the Court. This attitude creates difficulty in the co-parenting between the mother and father. The Court has had to make orders in the past clarifying the mother’s belief that the father’s wife doing a handover of X was not permissible. The mother interprets “mother and father” to collect or return the child as set out in orders, as meaning no person other than the mother or father. Her rigid interpretations of the Court orders to suit her own purposes, namely to ensure that the father’s partner plays no part in helping the father. As I have said elsewhere, the mother is happy herself to have a variety of carers involved in looking after X and taking him to and from school and after school care.
Similarly, the mother sought orders at this trial that the child’s telephone time with the father was not to be used by the father to hand the phone around to other paternal family members who might be with the father. The mother seeks this order because she says there have been occasions when the father had family visiting and during his chat with X on the phone call provided for under the consent orders, the father has handed the phone to his sister or other members of the paternal family to also speak with X. The mother’s position is that this is not at all acceptable. In her view, the telephone time is for the child and the father only. The mother says the child can speak to any other family members when he is with the father, not whilst with her and on the phone to the father. I regard this proposed restriction as utterly unnecessary and inappropriate. It is however, another example of the control mechanisms utilised by the mother and one which pays no regard to X’s right to have a relationship with his extended family and/or other significant people in his life.
There is no evidence that X has been placed at any risk in saying hello to his paternal family whilst speaking to his father. This request by the mother is a breathtaking example of the mother’s poor attitude towards parenting and lack of capacity to understand the emotional needs of X. She is effectively trying to prevent X from having an ongoing loving association with his paternal family.
The mother’s requirement for strict adherence and narrow interpretation of Court orders is however not observed by herself. At the time of the making of the current consent orders, the mother agreed (as recorded on the orders) for the parties to attend Family Dispute Resolution in order to discuss moving to an equal time arrangement, as being optional. Her decision as to why she changed her mind and decided not to relocate and that it not being anything to do with her previous partner was unconvincing. When the time has come, the mother did the opposite. She decided to bring an application to relocate. The mother came to Court at the commencement of the trial, saying again, that she has decided that she will not relocate. However, the mother has used her decision to relocate and then change her mind, to take the opportunity to seek orders to reduce the child’s time with the father, not increase the time as she indicated she would do back in 2014.
The mother’s tendency to be untruthful in these child related issues, underpins the difficulties that the father faces in attempting to co-parent with the mother. The mother makes up stories when dealing with the father and regretfully, she has done so even under oath. I am satisfied that the mother has been dishonest in her dealings with the father. The child’s orientation for Prep is another example. Arrangements were made for the parents to attend the orientation with X on a particular morning. The mother sent a text to the father saying, “I’m not coming.” Then there was alleged confusion on her part about where the father was returning the child to.
The mother’s own text message to the father said that she is about to take the child to an appointment and that she was not taking the child to the orientation. When quizzed, she could not remember what appointment that was. The mother then suggested she was taking him to school for his orientation. When confronted with the proposition that that would have meant he had two orientations, the mother agreed that this did not occur. The day care records suggested that the child had not been removed from the day care at all despite what the mother was texting to the father. When faced with the day care records confirming that the child had not been removed by her on that day, the mother said that the day care does not always record when the child is removed during the day. I do not accept the mother’s evidence that the day care do not require her to sign the child out if he is taken out for a few hours.
This evidence is completely at odds with the vigilance that day care centre records demonstrate. Those records show, unsurprisingly, they are most particular about who is removing a child and when. The records show the father coming to retrieve the child at, say, 2 o’clock, spending time with him and returning the child at 5 o’clock. This is all meticulously recorded. The mother’s suggestion that the day care centre does not operate like that is rejected.
Most of the mother’s evidence was couched in very restrictive terms and it is only through much probing that the Court has been shown at least some of the mother’s day-to-day life. I had the impression the mother was very closed about her own life and that she was less than candid about all that has been and is happening in her home life. One constant of the mother’s attitude and evidence though is that she attributes all problems relating to X to the father.
I do not accept that X’s current problems are related to X spending more time with the father. There is no evidence to suggest this. It is a perception of the mother and a self-serving statement. X is clearly very angry with his mother and his performance at the day care centre, which was upwards of an hour in which he was hitting, kicking and pushing her, is evidence of the level of the anger and distress that he is feeling. He may be worse when he comes back from his father and that fits with the child being angry with the mother. The Report Writer recommended that the child spend more time with his father as he really wanted to do so. The mother would not agree to this.
Ms E has explained (and I accept her explanations) the trauma that X is going through. She provides a logical explanation of the mother’s restrictive behaviours and her limitations in parenting that appear to be manifesting which result in X’s acting out. The mother has shown no insight into her own conduct and its effects on X. She has maintained a tight control to restrict X’s time with the father without any good reason, for years now and it seems to me that on listening to the father’s evidence, which I accept, that when he spends time with the father, he is spending time with a parent who is child-focused, who truly enjoys the time with X and who is thinking of opportunities for himself and X to genuinely have quiet, intimate moments together.
The mother’s questions to the father about mosquito bites implying that the child returned to her with significant mosquito bites shows the mother’s inability to see the positive parenting exhibited by the father. The father’s evidence was that he took X fishing down by a creek (that creek is not far from the mother’s house as these parties live about a kilometre from each other). Before taking him fishing they had kicked a ball around in a park. This gave me a strong impression that when the father has X with him, he is endeavouring to do very enjoyable pursuits for a young boy aged five. The fact that he got bitten by mosquitos whilst fishing or otherwise enjoying himself is incidental to that outing.
Unlike the mother, I do not condemn the father’s parenting on account of the mosquito bites. When challenged about observations that the mother herself had mosquito bites all over her legs, the mother denied this was correct. Exhibit ICL 3 shows that the child had multiple mosquito bites on his lower leg on 2 February 2017, though he was described as looking well. I consider it far better for a child to have mosquito bites, having been out fishing and playing football, than to have no mosquito bites and having sat, not engaging in such enjoyable activities. This is particularly so of a child who is medically obese. The mother says that she takes X out for walks when they walk the dog. Nothing the mother has been doing about any physical activity has made any impact on X’s obesity. The mother herself is having a medical intervention to deal with her own weight issues. She nonetheless does not acknowledge the benefit to X of engaging in the physical activity and development of ball skills in the park with his father or the fun of fishing with his father.
The mother has placed great weight on the importance of her employment and relied upon her alleged employment commitments to justify to the father that she can or cannot do things with X and their parenting arrangements. However, it seems when she organises her own activities, her work is flexible. The mother’s evidence is that she is now leaving this work and setting up a new business, though she has not done anything about it at present. The mother is also going to have her stomach banding operation. Having changed her mind about relocating, she says she is going to give herself a “rest in (omitted)” before she applies for more work. She says she is going to start being there more for X.
X’s daily life with his mother requires him to fit in with a fairly rigorous schedule. X is required to get up early and go to before-school care sometime just after 7.00 am as the mother says she starts work at 7.30 am. X is then taken by the day care staff to a bus and driven to school. After school, he is then taken by the day care staff on the bus back to the day care centre. He stays there until the mother collects him sometime between 5.30 pm and 6:00 pm. These are long days for a four or five year old. The father has offered to pick up X on afternoons that he is not at work to save X having such a long day. He has also offered to collect him earlier in the mornings. All of these very sensible offers have been refused by the mother. The mother’s position was that X should go to before and after school care.
The mother would typically say X has friends at day care and really enjoys it. When asked the name of the friend, the mother could not remember. I consider that the mother’s arrangements present X with a long and arduous day, day in day out, with all of these changes throughout the day. The father has suggested that if X is to go to before and after-school care that the after school program at X’s school he now attends be used. Only in the witness box, did the mother agree to this sensible suggestion which would make life a little easier for X. When asked why she had not done this earlier, she said that there were no vacancies at his current school. At face value, I am not able to accept this. Even when the mother is faced with documentary evidence to contradict what she is saying, she does not agree. I consider it was just another sensible suggestion by the father focused on the wellbeing of X, that the mother refused to agree to simply because the father suggested it.
The mother gave a very tearful explanation of X’s acting-out at the day care centre after school. This whole incident started off when X could not be found at his school by the day care centre bus driver or others after school. Eventually he was found. The mother was then phoned several times and was told he would not re-enter the day care centre when they drove back to it. He tried to run across the road. He lashed out at the staff trying to guide him in.
Once the staff got inside, X kept lashing out. The staff had to get him away from the little children. He was kicking and screaming and causing chaos at the day care centre. The staff could not get him to calm down. He was taken into an outdoor area, where he was alone. The mother tried to give him a “countdown” to stop acting in the manner he was. He picked up things and threw them around the room. The mother said, “He just kept kicking and hitting, trying to tackle me, kicked (omitted), throwing property around”. She finally said if he would not calm down she would call Dad. X screamed “I do not want a family. I do not want Ms K. Leave me alone. I want to live by myself. You do not care about me. Nobody cares about me”. He was kicking a glass panel. The mother said she called the father. He came straightaway. The child was emotionally exhausted. The father was able to take parental control of the distressed X.
The mother’s evidence was given in a flat presentation with no emotion except at times she cried about her own health. She appeared to me at times to be rather detached from X and called him “the child” more than once. She was upset when there was mention of the father’s new baby, Y. When asked did she agree that X and Y have a close relationship, she said, “I have seen them together.”
I was left with the impression that the mother is sullen and regards the father and the father’s family with some disdain. She has told the Court that there were things that she does not want to tell the father because “it will only be used against” her. The father has been contacted three times by the mother to help manage X and has done so willingly. I saw not a hint that the father was in any way cavalier or superior about this. Instead, I saw that he was deeply concerned about X, about X’s behaviour and that X needed to get help.
In terms of the mother’s parental responsibility and capacity to parent, it is a significant deficiency that the mother has failed to acknowledge and act on X’s increasingly violent and distressing behaviour and acting-out. I am satisfied that the mother has been resistant and obstructive to suggestions from the father to help X, simply because it is he who has suggested the solution and made the observations. The Family Consultant described the relationship between the parties as toxic. Whilst the father is not without any fault, the evidence points to the mother being the obstructive and difficult person working within this partnership.
In cross-examination, only through much digging, were significant events revealed about the mother’s other relationships. As part of what I regard as hidden life, she has been in a relationship with Mr N. Whilst this was known, the incidents and consequences associated with that relationship have not been made known to the Court or the father by the mother.
The mother was asked whether or not she had any police involvement when she was with Mr N. Through persistent questioning, it was revealed that the mother’s relationship with Mr N had ended at a time when she had a very hostile male attending at her door wanting to know where Mr N was. The mother said she was very intimidated by this third person. He told her that her boyfriend Mr N had been involved sexually with a female who was the girlfriend of the third party male at the door.
The male third party who arrived at her door was angry and left the mother without any doubt that he was looking to find Mr N and that there would be trouble. So worried was the mother that she told the third party she would call the police. She did call the police, as she was fearful of that third party returning to her home. She was so worried and frightened that she collected X and left the home for a couple of nights in fear of what was about to happen.
The mother was told by the male person at her door that the relationship she was in with Mr N was based on a fraud and that Mr N was only using her for her financial security and to acquire a car. The mother gave evidence that her credit card was used to buy Mr N a car (some $10,000.00) and that she was in the process of buying Mr N a second car worth $50,000.00 when she found out that effectively Mr N was leading a double life with another female. The mother was very concerned and she left the house to be safe. She split up with Mr N in 2015 in those circumstances. She was left with debts in her name of $80,000.00. She had pre-ordered a car of $50,000.00 for Mr N. Her boyfriend, Mr N, maxed out her credit card and she has been left in significant debt. None of this was volunteered by the mother to Ms E or to the Court. The mother had been in a de-facto relationship for 18 months with Mr N. I have little confidence that the mother has been completely candid about all of the events. I am left wondering what affect this incident has had on X.
The mother has also had another (omitted) colleague living with her for a period of time. The mother says he was just a boarder. That relationship ended up with that person in hospital. The mother said that her boarder failed to return the keys and she had to take some steps to get the keys back, as he was not co-operative. Again I am left wondering what the real circumstances were. It is difficult to assess and rely on anything the mother says. She is prone to give half-truths.
The mother was asked about her financial position. It was difficult to understand really where the mother’s financial situation is up to, as most of her evidence is inconsistent. She said her elective surgery was costing $25,000.00. She hoped to get $20,000.00 back. She said she had saved up to $23,000.00 which as contrary to her financial statements which she indicated a minus balance of $348.00. The mother said that that minus must have been a mistake (I do not accept it was) and that she had been given an inheritance of $10,000.00 and just saved up a lot of money.
Having said that she had all these funds available, she then had no explanation why she had not paid the father the sum owed by her to him pursuant to an Order of this Court for costs that had been made many months earlier. The mother had no reason. She had plenty of money to do so but chose to ignore the Orders of the Court. Again, it suited her to do so.
The mother is clearly struggling in various aspects of her life after some bad experiences with Mr N and financial loss. I agree with the evidence of Ms E. The mother has decided recently that she is not relocating from (omitted) but that she is leaving work. Some of her plans did not seem to be well thought out. I very much had the impression that the mother has a lot going on in her life and that she is struggling to maintain her own equilibrium on a day-to-day basis. She has been taking significant drugs to deal with what she says is her pain from her gynaecological condition. Those drugs have included Endone, Panadeine Forte and other medications for anti-anxiety.
My overwhelming impression is that X is out of control in the mother’s care and home. The mother said in her closing submissions that she “has tried as hard as she could.” I accept that she has tried to some extent however, that does not absolve her from her obstructive, problematic, controlling attitude towards the father, particularly when he has made very sensible suggestions for X to spend more time with him or that X be taken to be taken to specialists as a matter of urgency.
I am very troubled about the mother’s capacity to provide for X on a day-to-day basis and am not satisfied she has the capacity to make decisions placing X’s best interests as her paramount consideration. Her attitude towards parenting is also very troubling.
Ms E - Family Report Writer
Ms E gave evidence and was cross-examined. In relation to X’s condition she said that the child’s presentation was extremely worrying. When she did her report some 12 months ago he was a warm, outgoing young boy, he was in good relationships with both parents, he was a lovely child and he interacted warmly. The behaviours of X were described by Ms E as being extremely disturbed. Ms E’s view was that he has developed behaviours that need urgent attention.
Ms E was also concerned about the suitability of the school’s response in that he lies down on the teacher’s floor; that he is removed from the classroom; that he is isolated and that really he needs to have therapeutic supports from a therapist who understood the dynamic, the conflict and the divorce separation.
Ms E gave a very helpful summary of the mother’s functioning in terms of her diagnosis of mild personality disorder. She explained the mother’s very traumatic experiences as a child and that they will impact on her functioning as a parent. She said that the child desperately needs to get to someone well qualified such as Ms D who will give the child space so that he can learn how to cope with these big feelings he has and give him the support he needs.
The impact of the mother’s diagnosis by Dr B of mild degree of personality disorder as assessed is a borderline personality (which Ms E says is an old diagnosis) which is typically found in women, but represents ongoing trauma over a long period of time, in recent times, this disorder is often referred to as complex post-traumatic stress disorder. In particular, when children grow up where they have been sexually abused[5], they are victimised and in order to survive, children develop a set of adaptive behaviours. As they grow up, they can become maladaptive. They learn to block out what is happening.
[5] As the mother was.
In its extreme situation, these symptoms can present as the mother being dissociative, avoidant and keeping quiet. In general, avoidance mechanisms help children that are being distressed to function. As children become parents themselves, that avoidance mechanism can become dysfunctional and maladaptive ways can be developed. Children who have gone through sexual abuse can develop a poor sense of themselves and they inevitably are in a state of emotional pain all the time. They are suffering under the burden of their abuse.
As Dr B stated, people can go through that trauma and be quite okay, but stress can result in circumstances where parents can decompensate and manifest in some strange behaviours. Research suggests that parents can alternate between hostility and the need to control versus an emotional aloofness that can manifest, that can oscillate, that can create huge confusion and problems for children. Controlling the environment and the children is part and parcel of the parent’s response. It is a fear reaction for an adult who has gone through trauma.
This mother has been traumatised. Such mothers can feel a great need to control all of these surroundings and be accused of being helicopter parents. Being a helicopter parent can be useful to keep young children safe when they are small. However, children in these circumstances can become very confused, emotionally very angry, the child cannot express their feelings and it can hinder their emotional development. This can result in some of the behaviour and ferocious acting out, as X is doing.
The children can develop internal problems and have external anger acting out. Most of what was referred to by Ms E was evident in the mother’s and X’s behaviour. The mother showed an emotional aloofness in failing to attend on X’s first day of school when initially seeking to have him in her care so that she could attend. The mother said that her work prohibited her from dropping the child to school on his first day of school because there was some very important legislation that she had to implement on that very first day of school, so she did not take him to school. He went to before school care and was taken on the bus.
The mother works in an (employment omitted). I do not accept her evidence that there was some very important legislation that prevented her from attending at school at 8:00 am or 8.30 am on the first day of X’s prep school. As Ms E said, the importance of having a parent on the first day of school cannot be overstated.
The mother simply took the child to before-school care and left the child to be delivered up to school. The mother showed significant indifference to the significance of the event for X. It was fortunate for X that the father and his wife attended at the school in the morning to assist X and be part of his significant day.
As to the mother’s decision not to agree to X having counselling, Ms E said that it was alarming that the child is so unwell and that the mother’s decision to do nothing about it was bordering on abuse and it has definitely caused emotional harm to X. Ms E also noted the mother’s own physical health deteriorating since August last year and the significant weight gains of the child. It was clear from Ms E’s evidence that the mother has caused the child emotional abuse, that she has exercised poor decision making and that the Court must be deeply concerned about the mother’s lack of exercising appropriate parental responsibility.
Ms E said when she saw the mother that she was very vulnerable, worn out and traumatised. The mother loves the child but she is stuck with her history and that she needs to find some peace to relieve some of the emotional pain she suffers daily. Ms E understood that the mother would wish to have further support from her family. The mother has been in a series of unhappy relationships, as well as starting a career in (omitted) which ended up in her being assaulted when she worked as a (occupation omitted).
Ms E had not been aware of all the latest evidence of X’s increasing emotional disturbing behaviour. She was most concerned that X be taken for therapeutic assistance without any further delay and that no further time must pass where this child is left without professional assistance. I made an Order to this affect at the conclusion of the hearing.
The mother seems to suffer ongoing stress and has a pattern of chronic illness and stress.
Ms E noted it is disturbing to see that rather than identifying and acting on X’s distress, the mother simply blames the father.
Ms E observed that the mother had a deeply ingrained and embedded belief that the father was trying to undermine her position. In Ms E’s view, the mother has no trust in the father or any confidence that he is going to do anything other than to be a thorn in her side. The mother believes she is constantly defending herself to secure her own and X’s wellbeing. This accords with my own observation that the mother is prepared to blame the father for anything that happens to X. The mother does this, whilst showing a significant lack of insight, by failing to acknowledge and act on X’s destructive behaviour and how distressed he is with the world.
Ms E said the conflict between the parties is chronic, toxic and deeply embedded. Ms E said that there is no future for these parents in terms of co-parenting. Ms E recommended that the child live with one parent and spend alternate weeks with the other. A further recommendation was that there be a moratorium on his time with the other parent so that X has some space and consistency in settling into his new arrangement and with a therapist.
Ms E’s opinion was that X has experienced some kind of emotional shutdown. He feels nobody understands him and all of the messages coming from the school are that he had shut down. He needs a safe space with adults who are going to listen to him and understand how much he is hurting. Ms E recommended that there be sole parental responsibility to the parent with whom he lives and that X needs space where he can go quietly to and from school. He needs consistency, predictability, and stability. He needs warmth, love and he needs boundaries.
Ms E also expressed concern that with the mother and X there was some role reversal happening with the mother not coping. If the child remains living with the mother, Ms E believed there would be confused parenting, confused logistical arrangements, an inability to set priority on the child attending his appointments and further necessary medical and psychological intervention is likely not to occur. Ms E considered that was abuse by the mother and neglectful parenting. There was also a concern expressed about the child being obese.
Ms E noted that X had acted out with the female carers at day care and his female teachers. She was not sure if X had an issue with women, but was heartened to hear that the behaviour described by the mother had not been happening with the father. I accept the father’s evidence that X has not acted out in this fashion while he has been in his care. I also consider that the father has the capacity to deal with X’s current difficult emotional disturbances. The father has shown consistency, stability and a child focus and parenting capacity that is not present in the mother’s parenting. This is a significant issue in my determination as to X’s future living arrangements.
In turning to the Section 60CC(3) additional considerations, in addition to what I have already canvassed in these reasons, I make the following observations.
S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
As to the views of the child, the child is really too young to have expressed any view.
S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
This has been traversed fairly comprehensively by the Family Report Writer. This child is loved by both parents and loves both parents. The mother is dealing with a range of issues arising from her past trauma and presented as deeply vulnerable and destabilised at the Family Report interviews and as having depleted coping strategies. This combined with the mother’s antagonism shown towards the father and to parenting arrangements, suggests to me that the mother is having difficulty coping in her role as a mother. There have been three occasions prior to the trial, that the mother’s parenting has not been at all effective and the mother has required the assistance of the father to manage X’s very difficult, confronting and distressing behaviour.
At the first Family Report prepared at a time prior to the significant deterioration in X’s behaviour, X was observed to be monitoring his mother’s distress and trying to comfort her. At the trial, Ms E was concerned with the nature of the relationship to the extent that it was likely that X was starting to parent the mother. This issue is very troubling and tied in with the mother’s functioning. Clearly it is not in X’s best interests to be a child becoming parentified.
X was described as having a confident relationship with both parents. X’s strong attachment to his father was noted at the interviews in June 2016. The attachment was so strong that it was recommended that X start spending more time with the father. Ms E opined that X loved and trusted his father and he enjoys a close and loving relationship with him. Ms E wrote, “The mother risks causing resentment if she does not facilitate this. As X grows older and becomes more knowing, he will come to resent any restrictions limiting his relationship with either parent.”
It is with concern that the Court notes that despite the suggestion of extra time and holiday time between X and the father, the mother remained resistant to any further time. This resulted in applications be lodged by the father for additional time for special occasions or holidays. It is in the context of this background that the mother has decided to seek Orders reducing the child’s time with the father as per her Orders sought. The mother’s inability to see that this child is wanting a fulsome meaningful relationship with the father is an issue of great concern for the Court.
Since the matter was reserved the father filed a further application to spend holiday time with X. The mother resisted the time sought by the father. The outcome was that the child is spending holiday time with the father pursuant to Consent Orders of 7 August 2017. The terms of the Consent Orders provide for the mother to also spend block time with the child in 2018. The parties have agreed that whatever orders are made by the Court in this reserved decision as to X’s living arrangements that the time with the mother is to occur as per their agreement. I have factored this time into the orders I intend to make.
S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) To participate in making decisions about major, long term issues in relation to the child; and (ii) To spend time with the child; and (iii) To communicate with the child.
The mother has made most of the decisions for this child, however, the father’s inability to do so has not been through his failure to try and be involved. Similarly, the father has been agitating to spend more time with the child than the mother would agree to. This refusal to acknowledge the benefits to X in spending more time with the father has occurred even in a context of X being furious with his mother. The interim applications by the father ought never have had to be filed and prosecuted. The mother’s continued refusal to agree to more reasonable time has been a notable and troubling feature of her parenting.
S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
In terms of providing for the child, the father has always paid child support. He has an income. The mother has suggested the father cannot afford to have X living with him on the figures before the Court. I do not accept this. The father is the only parent who pays for X to have private health insurance. The mother does not. The father has financial assistance from his wife. Moreover, the history shows that the father has provided for every aspect of X’s care while X is with him, and the father has taken him for holidays and outings and experiences.
Whilst making unfounded criticism of the father for having insufficient funds to raise X, the mother received money from an inheritance or a gift from her grandmother, and even then refused to pay the legal costs of the father incurred in bringing applications for X to spend more time with him. The mother’s refusal to comply with these reasonable requests, supported by a Family Report which recommended the child spend more time with the father as soon as possible as he loved and trusted the father, ultimately resulted in a costs Order being made against the mother for her unreasonable refusal to agree to the father’s specific application.
S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The effect of the mother’s orders sought will be a reduction in X’s time with the father. There is no evidence to suggest that this is in any way in his best interests. X needs constant routine, stability, safety and to know what is happening within each and every day. Reducing his time with the father, in my view, will simply lead to a continuation of X’s current acting out and anger. He loves his time with his father. Reducing his time with the father means that he will be spending even more time with the mother. This is entirely contrary to the independent professional evidence that X loves and trusts his father and wishes to spend more time with him.
I do not have any confidence in the mother’s parenting capacity or in her ability to exercise parental decisions in the best interests of X. Living primarily with the mother, X’s interests will be overlooked, whether they are medical or psychological. The mother’s refusal to act in relation to X’s behaviour is described as child abuse by the Report writer. I am not satisfied that the mother is able to put the interests of X above her own.
I am satisfied that the mother’s orders will lead to this child remaining distressed. I have no confidence that if the child lives with the mother primarily, that all of his needs would be attended to. The mother has tried to portray the father as a bad parent, by presenting the Court with evidence of mosquito bites and X’s rash under his arms, which the mother said was caused by deodorant. I do not have any reason to accept that the father has been applying an inappropriate deodorant. The evidence was that the mother had a deodorant spray can in her car, and when pressed she admitted that X may have used it, once only. The issues raised by the mother in the scheme of things pale into insignificance in relation to the most significant issues in this matter. It is clear that even at the trial, the mother is not alive to the real issues in this matter, nor does she have any insight into her own obstructive behaviour.
Whilst it is not the most pressing issue, I have no confidence that X will ever be anything other than medically obese while living with the mother. She has been dishonest about the type of food and nutrition that she provides as a mother. The mother also has set views about the sorts of activities that X should be involved in. I do not have any confidence that she would place as a priority any extracurricular activities whereas I am confident that the father will organise a social and sporting life for X that works around X’s likes and dislikes and age and interests.
Ms E considered that X lives in a degree of chaos with his mother and that her parenting arrangements are unwieldy especially at his young age and stage of development. In my view the Orders sought by the father represent a stability and security that are directed to ensuring that X will have a less demanding day, week and life. X living primarily with the father means that X will have the benefit of the father’s child focused parenting.
S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Each of the parties live in (omitted) and there are no significant issues about the cost of contact or time travelled. Ms E says it is imperative that the parents should have no contact at all and that keeping the parents apart must also be a top priority. I accept and agree with this recommendation. Changeovers ought to occur to and from school whenever possible.
S.60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
I am deeply troubled by the lack of capacity the mother has demonstrated. I consider she is struggling medically and she is struggling emotionally. The combination of her history and her psychiatric diagnosis and her current functioning are such that I have significant concerns as to her ability to parent X in the long term. I rely on what I have said elsewhere in these reasons on this topic and the evidence of the family report writer. The mother needs to have time out of parenting to look after herself. Only reluctantly did the mother accept under cross examination that to have X spending more time with the father would give her some relief. The mother was still expressing her view that she would be criticised for this position. The father has at times been critical of the mother. I do not accept though that this has been without considerable justification. The father has been rightly concerned and has agitated for the mother to reply and cooperate with his parenting.
In terms of the father, I am satisfied that he has the requisite parental responsibility and capacity to care for this child around the clock, day in, day out in the long term as a primary parent. This was identified by Dr B in April 2013. The father in terms of parental responsibility has exercised appropriate decision making. He has tried to approach the task of co-parenting with the mother in an objective a fashion as possible. He has been subjected to much frustration, and in the face of that frustration I consider he has coped very well. Inevitably he has vented his frustration.
Whilst both parents love this child, I am satisfied that the father is entirely child focused and he brings a strength in parenting that the mother lacks.
S.60CC(3)(g) and S.60CC(3)(h)
Not applicable.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It is clear from what I have stated elsewhere in these reasons, that I have significant misgivings about the mother’s obstructive behaviour towards the father and his time spent with X. There has been no basis for the mother to assert that X should spend less time with the father. The mother’s focus has been on ensuring that X has a very limited relationship with the father. All of the evidence supports X spending more time with his father not less. It is regrettable that the mother does not genuinely accept that this should occur. Nor does she appreciate the benefits to X of him being permitted to have a close and loving relationship with both parents, not just herself. I am very troubled by the prospect of the mother continuing to undermine the father’s role in the child’s life into the future. I saw no evidence of her being able to change her rigid negative views in relation to the father.
I have also noted that the mother’s failure to ensure that X saw a child psychologist as a matter of urgency was a profound failure in her parenting capacity and responsibility towards parenthood. I am satisfied that the father has demonstrated an appropriate attitude towards parenting. Of the two parents, he is the one who is able to put X’s interests above those of any residual antagonism he has towards the mother. It is imperative that the child is not exposed to ongoing conflict between the parties.
As to the responsibilities of parenthood, the mother is described by the Family Report Writer as being somewhat distracted and overwhelmed with her personal resources being stretched to the limit by ongoing litigation and dealing with her failed relationships and other issues of personal trauma.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family and S.60CC(3)(k)
I have taken account of the evidence regarding the alleged incidents of domestic violence and the previous Domestic Violence Order.
Overall, I am satisfied as stated elsewhere in these reasons that parties each engaged in argument and conflict at the end of their relationship. Ms E noted that their relationship was troubled and difficult. I reject the allegations that the father caused the mother physical harm, as alleged by her. I am satisfied that the father gave a truthful account of the incidents which occurred at their separation and how it was that the mother ended up with bruising to her arms, namely through tripping.
The domestic violence in this matter has been situational, at a time when the parties were young, in a conflicted relationship and when each was consuming drugs. There is no post-separation domestic violence, and these parties have been separated for years. I am satisfied that the historical issues where situational and that there are no current issues of Family Violence that are relevant to me determination in 2017.
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is imperative in my view that the child has a period of stability without each of his parents being involved in litigation. The report of Dr B identified that the father had a lot to offer the child as did the report of the Family Report Writer. The father has patiently taken his application for more time at the child’s pace. Even when there have been recommendations for more time including half the school holidays and long weekends, the mother has refused this.
Having now heard all of the evidence, and noting the child’s current distress, and that the mother is in survival mode and barely coping with the litigation, it is apparent that the litigation ought to be finalised. This is the second trial in 4 years.
I accept the recommendation of the Report Writer that the child needs a period of calm with the resident parent after these Orders are made and overall stability and security.
S.60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant
In terms of any other factor, I am not satisfied that the mother would promote a relationship between X and the father. She has done her utmost in my view to restrict his time to minimalize his holiday times and really to make sure that X does not have the opportunity to have fun times with the father. The father has had to come to Court to get orders that X be allowed to attend his own wedding, and that X be allowed to go away for holidays. This was entirely unnecessary particularly the independent expert evidence of the strength of the child’s relationship with the father. There were no risks that ever required such a restrictive approach by the mother.
My impression is the mother is passive aggressive and wholly determined that X’s father will have only a minimal role in his life. The mother does not properly acknowledge the father as a significant person in X’s life. I am satisfied that the mother, whilst she loves X, she does not wish X to have a meaningful relationship with the father or his partner. This is an issue which has been a constant theme in this litigation. I give significant weight to this issue.
I am satisfied that the father accepts and acknowledges that X has a loving relationship with the mother and that he has only sought to supplement X’s close parental relationship, not undermine the mother’s relationship.
S. 60CC(2) The primary considerations are:
The benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I am satisfied that it is in X’s long term best interests to have a meaningful relationship with both his parents. As referred to elsewhere in this judgment, there are limitations in the mother’s capacity to parent and her inability to show any genuine respect or regard for the right of X to also have a relationship with his father. These issues need to be factored into the decision as to which parent X should live with and how much time he spends with either. Clearly there are some concerning features of the mother’s conduct as a parent that cause the Court to have significant reservations about the long term effect of X in the primary care of the mother.
Orders need to be drafted to enable X to have a meaningful relationship with both parents in accordance with his best interests.
Parental Responsibility
S. 61D of the Act refers to a presumption of equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in family violence, abuse or neglect of a child
There is evidence that the mother’s refusal to agree to the father’s suggestion to have X get psychological assistance amounts to abuse. The presumption of equal shared parental responsibility does therefore not apply as there is evidence of abuse of the child by a parent.
In any event, I am satisfied that the presumption is rebutted as it not in the child’s best interest for the presumption to apply. Ms E, the Report Writer says that these parties have a toxic relationship. Each of them seeks an order that a parent have sole parental responsibility. The evidence that I have heard suggests that there can be no agreements between these parties. The mother is dishonest in her dealings with the father, and it is impossible for him to get any agreement to either day‑to-day matters or a long term issues. My strong impression is that the mother is struggling with a variety of issues to do with her own functioning. This seems to preclude her putting the child’s interests first and above her own. The Report Writer says that the mother needs to get herself strong again. Because of the toxic relationship and the mutual mistrust, the parties do not have the capacity to make joint long term decisions. The Court also does not have confidence that the mother is able to make child focused long term decisions for X given her failures to date. It is therefore not in this child’s best interests to have these parties making joint decisions.
The father is able to make sensible and child-focused decisions in relation to this child. I am also satisfied that he will not abuse the position of making sole decisions in relation to the child. He has demonstrated through his patience and tenacity that he remains focused on what is best for X. The mother has demonstrated that she will not agree to the father’s sensible child focused decisions as she views his involvement as trying to control her. There is no basis for this belief, however, it is strongly held by the mother.
Having considered all of the issues ventilated in these reasons, I am satisfied that it is in X’s best interest that his father have an Order for sole parental responsibility.
Discussion
Having made an order for sole parental responsibility, and in determining then the child’s best interests, and having regard to the section 60CC matters, it is probably clear that I consider that the child should be living primarily with the father. This position is supported by the Family Report Writer and the Independent Children’s Lawyer.
The father has shown a steady, solid maturity and pragmatism in his decision making. He has approached the mother without malice. He is by no means perfect, however, he has been prepared to put aside their unfortunate history when each of the mother and father were much younger, and focus on X’s best interests. I am satisfied that he is a drug-free, non-violent parent. I do not consider he represents any risks to his child or to the mother.
Any suggestion that the mother is being subjected to psychological abuse, emotional abuse, or physical abuse from the father is entirely without merit. The father is able to provide a stable, secure environment. I accept the observations of the Report Writer in terms of the mother being overwhelmed in her parenting.
Living with the father means that he will also be living with his only half-sibling, young Y. It is agreed that he receives much joy from this addition to his family. I consider that it is to the benefit to X to be living in a family circle which will include another young child that will enhance and enrich his childhood.
Living with the mother would mean on her proposal that he would only be seeing Y each alternate weekend. My impression is that the mother does not acknowledge the happiness and love that X will enjoy from this relationship.
I am satisfied that the father will do everything he can to promote the child’s relationship with the mother. There is nothing that I have seen that would suggest that the father is trying to remove the mother from X’s life or prevent X from having a healthy, loving relationship with his mother.
The mother said in her submissions that in the event the Court ordered week on, week off that she would want it to happen on a split basis.
I have considered week on week off between these parents. There is however, a complete absence of trust and amicability between the parents. The parties’ toxic relationship precludes them being able to co-parent in a week on week off relationship. To do so would require mutual respect, an ability to co-operate in the co-parenting. In particular, the mother’s hostility and simmering resentment towards the father would likely result in regular disputes playing out day in, day out about everyday arrangements such as items being left behind, the child having to attend birthday parties in one or other of their times and all of the issues which arise when a child is moving between homes on a week on week off basis. This is not in X’s best interests to be continually exposed to this environment as has been the case for the past years. The communication between the parties prevents any sensible dialogue, and all of this would ultimately affect the child in the long run.
As to the time that the child should spend with the mother, I accept the evidence of Ms E that, if the child spends each alternate weekend with the mother, that will enable him to have a meaningful relationship. Given the mother’s negative and obstructive attitude towards the father, I do not consider that the child should be under the influence of his mother for any greater period as a regular order. The Report Writer said that the mother needs to be seen by the child to offer a more reasonable position in her dealings with the father given that she is the primary female role model for the child. The mother shows no insight into the forceful role she has played in being unreasonable in enabling a meaningful relationship between the child and father. I am satisfied that it is in X’s best interest that he live with his father and spend each alternate weekend with the mother from Friday after school to the commencement of school the following Monday.
I accept that the child should have one half of the holidays with the mother.
There are other orders that I intend to make and some which I will not make. I do not intend to make any orders that each of the parties is required to have one witness to attend at all handovers. There is no necessity for this at all and it is an intrusive order. I do not intend to make orders that the parties report to each other all the time about a child not being at school on any particular day. The less communication between these parents, the better.
I have adopted a modified version of the Independent Children's Lawyer’s orders sought. The parties agree that it is a simpler arrangement to have one half of all of the holidays including Christmas, which means that, one year, one gets Christmas and the other happens the following year. I see no reason to make any restraints about either party taking the child out of (omitted).
Each of the parties supported an order that they be permitted to remove the child from the country while the child is in their care for the purposes of holidays and that passports be issued. That order is however, entirely contradicted by an order that says they can’t leave (omitted) or Queensland without the other parent’s approval. In my view, having an order such as that will always lead to more litigation as I would anticipate the mother would have some unrealistic, unsubstantiated view of why the child should not go on a particular holiday or leave Queensland. I do not intend to make restrictions about interstate travel, other than to require each parent to notify the other that they will be travelling interstate. This will be a notification, not a request for permission to do so.
I do not consider that there is any requirement for any drug testing as sought by the mother. The drug use of the father is in the past as is the mother’s drug use. The father has engaged in previous drug tests which have been clear. There is not a skerrick of evidence to suggest that he remains addicted to drugs any more than the mother does.
I do not intend to make an order that the child be able to contact the mother or father whenever he wishes to. That is likely to lead to more litigation with one or other, likely the mother, saying that the child “wanted to ring me and the father wouldn’t let him”. The legislation provides that each parent makes decisions about the day to day decisions about the child when the child is living with them or spending time with them. Orders enabling the child to make decisions about when they will ring the other parent are entirely inconsistent with this legislation.
Given the mother’s fragility, I intend to accept the recommendation of the Report Writer and have a settling in period for the child with the father of three weeks from the date of this Order. After the expiration of three weeks, the child will spend his first weekend with the mother.
I certify that the preceding one hundred and ninety-seven (197) paragraphs are a true copy of the reasons for judgment of Judge Willis
Date: 28 September 2017
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