KARDOS & COUTTS
[2014] FamCA 1085
•5 December 2014
FAMILY COURT OF AUSTRALIA
| KARDOS & COUTTS | [2014] FamCA 1085 |
| FAMILY LAW – CHILDREN – Best interests – with whom the child shall live and spend time – where the child has meaningful relationships with both parents – sibling relationships – where the father, without intending to do so, has emotionally abused the child by being dependent on the child to meet his needs, by over-involving him in adult concerns and providing the child with critical information of the mother and using him to convey that information to her – where the need for the child to regularly see the father presently outweighs the destructive effects of the father’s actions – where the child needed to be relieved of this over involvement in the parental conflict and the current shared care arrangement should not continue – where the mother has the capacity to meet the child’s needs and has been protective of him – where the mother has been the child’s greatest source of stability and continuity – child to live with the mother – child to spend substantial time with the father – where these orders are likely to have a stabilising effect for the child emotionally. FAMILY LAW – CHILDREN – Parental responsibility – where it is very clear that the child has suffered from the lack of communication between the parties and that one parent should have that authority for the child’s sake – mother to have sole parental responsibility – where decisions can be made and implemented by the mother with a requirement for information to be provided to the father. |
| Family Law Act 1975 (Cth) ss 60CC, 64B, 68B |
| APPLICANT: | Ms Kardos |
| RESPONDENT: | Mr Coutts |
| FILE NUMBER: | BRC | 11914 | of | 2010 |
| DATE DELIVERED: | 5 December 2014 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 3 October 2014 |
REPRESENTATION
| APPLICANT: | In person |
| RESPONDENT: | In person by way of video link |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Lyons |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Queensland |
Orders
That all parenting orders in relation to the child M born … 2005 (‘the child’) made in this Court, the Federal Circuit Court and the Local Court at Town C New South Wales are discharged.
The mother have sole parental responsibility for the child and shall keep the father advised in writing of the following matters:
(a)any change of primary school for the child and the name of the secondary school to which the child progresses in due course; and
(b)any medical emergency or serious illness of the child and any specialist treatment obtained.
The child shall live with the mother.
The child shall spend time with and communicate with the father as follows:
(a)during school terms, commencing in 2015, each alternate weekend from after school Thursday until before school the following Monday (or Tuesday if the Monday is a public holiday);
(b)for one-half of each school holiday period;
(c)
from 12.00 noon on 24 December 2014 until 12.00 noon on
26 December 2014 and in each year thereafter ending in an even number.
The mother shall spend time with the child from 12.00 noon on 24 December 2015 to 12.00 noon on 26 December 2015 and in each year thereafter ending in an odd number.
For the purposes of Order 4 hereof, changeovers will take place, failing agreement otherwise, at school whenever possible and at other times with the parties or their respective nominees to deliver and collect the child from the home of the paternal grandmother.
Each parent shall permit and assist the child to telephone the other parent at any reasonable time.
Each party shall keep the other advised of their current residential address and contact telephone number.
The father is restrained from taking the child to medical and/or other therapeutic practitioners for non-urgent conditions, without the prior written consent of the mother.
Pursuant to section 68B of the Family Law Act 1975, the father is hereby restrained from entering or attending at the residence of the mother without her express permission in writing given in advance.
BY CONSENT IT IS ORDERED:
That the child shall attend A Primary School at Town C.
That the child shall consult with doctors at the O Medical Centre, Town C, other than in the event of a medical emergency.
The Independent Children’s Lawyer is to explain to the child:
(a)these Orders;
(b)that the child has a right to change his name, if he wishes to, after he turns 18 years old; and
the Independent Children’s Lawyer is thereafter discharged.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kardos & Coutts has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: (P)BRC11914 of 2010
| Ms Kardos |
Applicant
And
| Mr Coutts |
Respondent
REASONS FOR JUDGMENT
Introduction
These are applications to vary parenting orders in relation to one child, a boy just turning nine (‘the child’). For the past four years the child has spent equal time with each of his parents on a week about basis.
The applicant mother wants that arrangement to cease, for the child to live primarily with her and spend regular and substantial time with the father. She also seeks sole parental responsibility.
The respondent father wants the current equal time arrangement to continue. He wishes to share parental responsibility and also sought orders on specific issues.
At the time of hearing the mother was aged 27. She has two younger children born to two subsequent relationships; two girls aged eight and three.
Since late 2014 the mother has been living on a property out of Town C with her partner (aged 44) and her three children (including the subject child).
The father is aged 41. He lives in a suburb of Town C. There was no evidence to suggest a current relationship for the father. There was very little information about the father and his household.
History of relevant facts
In 2001 the parties met, when the mother was 14 and the father was 28. They began a fulltime relationship two years later.
In 2004 they began living together, initially by the father moving into the shared household where the mother was living and then subsequently into a leased property together, with the bond loan and utilities in the name of the mother alone.
In February 2005 the relationship broke down over the mother’s pregnancy. The father vacated the property without notice to the mother. The mother returned to live with her parents.
There was some telephone contact between the parties towards the end of the mother’s pregnancy, but otherwise, from separation until the child was almost three, there was no contact between the parties.
During those years, the mother formed an association with a person known as DL. A daughter, CL, was born of that relationship in December 2006. She is now eight years old
Accordingly, the subject child and his sister, CL, are 14 months apart in age and have a close bond. CL’s father has been a kind fatherly presence in the life of the subject child and agreed to the child having his surname.
In 2008 the parties resumed some contact with each other and the father met the child. The mother moved from Brisbane, where she was working, to Town C, to enable the relationship between the father the child to develop. Initially, the father spent time with the child for a few hours a day for several days each week.
During 2009 contact progressed to overnight stays.
The parties managed arrangements for the child reasonably well, although an attempt at reconciliation caused deterioration in their relationship.
In December 2009 the mother began a new relationship with a person known as RR.
In March 2010 the parties agreed that they would share the care of the child, now aged about four and a half years, on a week about basis. The father was dissatisfied with aspects of the mother’s household.
Towards the end of 2010 the father began attending upon a psychologist with the child.
In November 2010 the father decided not to return the child to the mother. The mother successfully applied to the Local Court in Town C for return of the child.
The father then filed a Response and Notice of Child Abuse.
On 30 November 2010 orders were made by consent for residence on a week about basis between the parties. They agreed on the school which the child would attend. By then, the mother was pregnant with the child of herself and RR.
Throughout 2011 litigation continued in the Federal Circuit Court (then known as the Federal Magistrates Court).
In July 2011 a girl, HR, was born to the mother and RR, now aged about three and a half years.
The father became increasingly concerned about the safety and happiness of the child in the mother’s household. A report on the family by a psychiatrist was ordered.
In January 2012 the mother again applied for return of the child after the father did not return him to her care. The mother simultaneously gave an undertaking not to leave the child in the unsupervised presence of RR.
In 2012 the parties were very much at odds over the care and supervision of the child; for instance over whether he should be treated for Attention Deficit Disorder (ADD) and over discipline by RR.
In June 2012 the mother again applied in the Local Court for return of the child after he was withheld by the father.
On 30 July 2012 the proceedings were transferred by the Federal Circuit Court to this Court, together with the file relating to RR, his former partner and their two children TR and ER.
Strangely, in November 2012, orders were again made in the Local Court and the matter transferred again.
On 30 January 2013 the first family report was released. The recommendations included the mother to have sole parental responsibility and for the father to have substantial weekend and holiday time. The matter began to be prepared for final hearing.
In June 2013 the mother separated from RR, in circumstances arising from his abuse of alcohol and mental illness. Contact between both RR and the mother and their child, HR, ceased. There was a protective order put in place for the mother.
In August 2013 an updating family report was ordered.
In September 2013 the mother began a relationship with her current partner TR and he was included in the report interviews.
In November 2013 the family report was released, reconfirming the recommendations in the first report. There were some concerning observations about the extent to which the child was found to be enmeshed with the father, who was assessed as “highly emotionally dependant on [the child]”.[1]
[1]Family Report dated 03/11/2013, par 39
In August 2014 the mother, TR and her three children moved to a property purchased by them, located just out of Town C.
The matter was listed for final hearing before me on 2 and 3 October 2014.
The father was not present at Court on the first day of hearing. Contact was made with him by telephone. The father sought an adjournment which was opposed by the mother. For reasons given ex tempore on the first day of hearing, the adjournment was declined, but provision was made for the father to give evidence by video link from Town C. The hearing concluded on the second day.
The issues
Whether the current equal shared time arrangement is in the best interests of the child and if not, what arrangement would be of benefit to him.
Whether the parties have the capacity to share parental responsibility, in order to reflect his paternity.
Whether the surname and other names of the child should be changed.
The evidence
The parties relied on the following documents:
a)Amended Initiating Application of mother filed 07/01/2014;
b)Affidavit of mother filed 28/02/2014;
c)Affidavit of mother filed 05/09/2014;
d)Affidavit of TR (mother’s partner) filed 05/09/2014;
e)Amended Response to Initiating Application of father filed 14/03/2014;
f)Affidavit of father filed 13/03/2014;
Reports:
g)Family Report dated 30/01/2013;
h)Family Report dated 03/11/2013.
Family Consultant
The family consultant expressed increasing concerns about the child over the course of two reports, at the beginning and end of 2013.
In the first report she described him as presenting in a quiet and serious manner,[2] with both parents describing him as sensitive.
[2]Family Report dated 30/01/2013, par 42
In the second report, the family consultant described the child as appearing to be “anxious and burdened when first greeted in the waiting area”.[3]
[3]Family Report dated 03/11/2013, par 25
The family consultant highlighted the extent to which the child appeared to be fully conversant with adult concerns and aligned with the father’s worries. For instance, the child reported that he and the father talked together about the mother, confiding that they talked about “getting help for her to not be so angry anymore.”[4]
[4]Family Report dated 03/11/2013, par 31
Later he volunteered that he thought it best if he stayed with the father for a couple of days when the mother got angry and said this:
She gets angry if we don’t feel the same way she does – what she wants us to feel.
These quite complex concepts expressed in first person plural by the child are no doubt part of her overall conclusion that the father is emotionally dependent on the child and hence the child has become overly involved in the dispute between his parents. She raised the very serious possibility that if the child continued to be overinvolved in the dispute and actively alienated from the mother, it would be emotional abuse, with the power to skew his view of himself in relation to others and the mother. The consequence of this is stated to be:
He is very likely to develop feelings of entitlement and view himself unrealistically as a victim in relationships.
The family consultant described a scene observed by her during interviews, where the mother, the child and his sister, CL, were playing a game. The child became disruptive, knocked down a block tower, mistreated the box it had come from, complained of unfairness and was generally uncooperative.
In her oral evidence the family consultant amplified her views on the topic. She said that in her view the child was not coping to a fair degree due to being confused and troubled about the relationship between his parents. Her views, which I accept as consistent with the evidence before me, is that his complaints about smacking and even punching by the mother, are unsubstantiated, but that he was beginning to believe that the world had dealt him a bad hand and that his focus was becoming on fairness to himself. That the child at nine has begun to see himself as a victim of the mother is detrimental to him.
The family consultant expressed the strong view that the child needed to be relieved of this over involvement with the father.
The child’s name
The father’s proposal that the child’s name be changed in two ways was considered by the family consultant. First, that a change to a new surname would be unusual for a child of his age, in mid primary school and would represent more of a disadvantage than an advantage to him, when his family, friends and school all know him by the surname Kardos-L…. Further, the father seeks to have the child’s second name, the name of a maternal relative, dropped, so that the child would simply have a first name, the surname of his mother as his middle name and his father’s surname as his surname (i.e. M Kardos Coutts)
In the view of the family consultant the issue of the child’s name comes from the father, not the child himself. It is certainly the case that the father has been applying for such a change of name for some time. There is no support for the notion that the child is troubled in any respect about his name. I also consider that his name is a true reflection of his history in that he was raised by CL’s father, was given his surname and for some time at least, considered DL to be his father until he came to develop a relationship with his own biological father.
The family consultant considered that it would be both appropriate and helpful for the Independent Children’s Lawyer to explain to the child that he would have the right at 18 to add or omit any of the names, if he wished to do so. Both parents were responsive to that happening.
Telephone contact
The family consultant was very much opposed to a defined order for telephone communication. Given the emotional state of the child, the family consultant considered that he might start to dread the calls, not through any lack of engagement with the father, but probably through fear of conflict through his parents erupting.
The other main area of concern was consistency of medical treatment for the child. There had been some treatment by the father for asthma, which the mother was unaware of; not just of the treatment but of the diagnosis. The child has not continued to be troubled by symptoms of asthma.
Siblings
The family consultant endorsed the significance of the child continuing to live with his two younger sisters, as he has done for all of their lives. There was a note of concern over the fact that the mother and CL’s father have an easy, healthy, co-operative relationship and that CL herself is a happy untroubled child. The family consultant noted that the subject child was aware of that and by inference, that too could become a focus of his feelings that the world was unfair to him.
I was assisted by the two reports and the oral evidence of the family consultant, who is a psychologist by qualification. She had the opportunity to see both parents and the children on two occasions, almost 12 months apart. She assessed the father’s wish for sole parental responsibility as incongruent with his assertion that the parents had a high degree of ability to cooperate and communicate regarding the child’s welfare.[5]
[5]Family Report dated 03/11/2013, par 11
Her view was that the father simply wanted to make decisions that suited him. This is consistent with the number of times the father has simply withheld the child from the mother in the past and for proposals by him for the child to change school, placing little weight on not only the disruption of a change of school to his education, but also to his connection with his sister CL who also attends that school.
The mother
The mother was 18 when she gave birth to the subject child and was a single parent for the first three years of the child’s life. She received assistance from her family, but not from the father.
Until 7 July 2014, when she was made redundant, she was employed as an Area Manager for a company, responsible for an area extending from inland New South Wales and the whole of the north coast. She had flexible hours, although sometimes was required to stay overnight. The mother has always been responsible for the child’s school fees and for his financial support. Indeed, until she was made redundant, she was assessed to pay the father $100 per month child support.
By the date of this hearing, the mother had found new employment as an Account Manager, travelling within the Town C area with autonomous hours and a good income.
The mother has had some difficulties in her own life resulting from the father’s behaviour with the child. For instance, before the mother could do so, the father told the child that the mother had a new boyfriend. The child reacted angrily towards the mother for keeping a secret from him. That conversation developed in the car in front the child’s sister, CL. It was upsetting for the child and difficult for the mother, who had wanted to wait before she introduced a new partner to the children. It was an irresponsible act for the father, who had obtained the information from third parties, as I accept the mother had not directly informed him herself.
There is also the issue of the child’s involvement in sport. He had shown a strong interest in martial arts and asked to attend classes. He appeared to enjoy his first class. Soon after that first class the mother received a text message from the father, “[Martial arts] lessons, what are you thinking?” Subsequently the child told her he did not want to do martial arts lessons any more, but would not provide an explanation. That was in 2012.
In February 2014 the mother, under the impression that the child had asked to play touch football, asked the father for his cooperation if she signed the child up to play touch football. In fact, the child was starting with a friend and had probably not understood himself that he was signing up for rugby league. He still wanted to play; the main impetus seemed to be that his best friend’s father would be coaching the team. The mother let the father know. The father communicated that he did not want the child to play league, that he was better at soccer and that “league is dumb”.
Within three weeks the child told the mother in a distressed state, that the father would not take him to training anymore. The mother asked for an explanation from the father. The child became intensely distressed. The mother described him as red faced and crying uncontrollably stating to her, “I wish I had never been born, none of this would be happening if I had never been born.” That same evening the father responded to the mother’s inquiry about the child’s statement that the father would no longer take him to football. The extent of the message was, “It’s too dangerous.” It seems likely that there had been direct communication between father and child and that the conflict of ideas between his parents and his own profound disappointment had led to his level of distress.
At a time when the mother was advised that the child would benefit from occupational therapy, the father declined to agree to it and the therapist would not proceed.
In February 2014 the child asked to go to a different school, “Where they don’t have religion because then you learn more about English and maths.” In the conversation that followed, the child said he did not like the school because it was “fancy and the school spent money on expensive things like IPads.” When the mother said that she did not think it would be a good idea for the child to change schools, he became distressed and said the father told him he could move schools.
The child’s emotional state led him to make a series of statements that he can only have heard from the father, such as:
Papa never wanted to be with you and you and him just got drunk when you made me.
and
I don’t believe you, you lie about everything and I don’t know who to trust. Papa is the only one that tells me the truth.
and
You hid me from papa. He was looking for me; he was looking for me everywhere and I never got to see him.
This was apparently a reference to the first three years of his life.
By patience and conversation, the mother was able to calm the child and reassure him, but it is a startling example of the evidence of the family consultant about the willingness of the father to over-involve the child in adult concerns. It is immature conduct for a man in his mid-forties and may also be a reflection of a lack of knowledge about childhood development.
If his two parents are right and he is a sensitive child, the evidence suggests that he has taken on the responsibility of delivering information from the father to the mother and has also become the father’s champion, angrily criticising the mother for perceived slights that she has visited on the father. It is a big part of the explanation for why he appeared to be burdened in the second report interviews and primed to blurt out critical information about the mother as soon as he was spoken to.
In these and other matters such as the wearing of glasses, haircuts and behaviour management at school, the parents have not agreed and it is very clear that the child has suffered from the lack of communication and that in future one parent should have that authority for the child’s sake.
Nevertheless the mother was generous about the father; she said she was sure he loved the child more than anything in the world and that he was a good dad, although sometimes his decisions were clouded about his feelings towards her.
That observation accords with the evidence. The mother offered as an explanation for why she had agreed to week about time four years ago, was because she thought it might minimise the issues and to her regret found that it did not and had not worked well in her view for the child.
Family violence
In 2010 there had been a serious incident where the mother’s then partner, RR, cut his arm with a carving knife and revealed intrusive thoughts about cutting off the head of the parties’ child, HR. He thereafter went straight to hospital. This incident took place in 2010. An Apprehended Violence Order (AVO) was obtained for the protection of the mother and she subsequently reported two breaches to police. Thereafter communication from RR ceased and he has never come to the mother’s home. The mother acted decisively to end that relationship and to ensure the safety of herself, CL and the subject child.
Unfortunately, because of the very poor communication between the parties and the history of flaring anger between them, the mother did not speak directly to the father to let him know what had happened in her relationship with RR and the steps she had taken to ensure the safety of the children.
One consequence has been that the father has maintained contact with RR’s former partner and the two children of that relationship, TR and ER. There has been some benefit for the child in that he was fond of those children and apparently enjoys seeing them. However the father has also kept the mother’s other former partner advised of what he learns about RR and this has caused some trouble in what had been an excellent relationship between the mother and DL, the father of their child CL
Overall the mother impressed as committed to maintaining the relationship between the child and the father, despite the obvious frustrations and difficulties.
The mother’s partner
The mother’s partner is aged 45 and a professional. He has a young adult son from a prior marriage, who is now away at university, but had lived with him for about 10 years previous to that. He gave his evidence in an open way. I accept that he not having met the father, had no view about him, but knowing the child as he does, at least to some extent, was positive that the child loved the father and should spend time with him.
It became clear from the evidence of the father that he was reassured by the evidence of the mother’s partner and pleased to have seen and heard from him.
The father
The father is presently working in the hospitality industry three days a week and for part of weekends.
The father said he could not see why the parents could not work as a partnership. I accept that he is unable to see this. He appears insightless about his own tendency to provide the child with adult information and to use him as a conduit for communicating both information and criticism that he feels about the mother to her.
The father agreed that the child was his life and that he has no current partner. It is consistent with the enmeshment and intensity identified by the family consultant in the relationship between father and child.
I accept that the father would like equal parenting, where he had a say in pretty much everything; school, health, religion and extra-curricular activities. He described the mother as strong-minded and forthright, “She does get her own way.”
It seems to me that the father’s way is to avoid conflict, to oppose without explanation and as a last resort, to convince the child of his point of view in order to get his way. The upfront and business-like manner of the mother appears to be confronting to the father. The indirect and passive manner of the father is frustrating and incomprehensible to the mother. The child, who loves them both, really suffers from trying to reconcile why the two people who mean most to him are so unkind and critical of each other.
One recent example is that the father decided to obtain a tutor for the child as a result of something a teacher told him. He saw no need for him to inform the mother of that. It led to the child doing significant amounts of homework in the father’s household and obstinately refusing to do any in the mother’s household. Each week as it turns around, could not be more different for the child and it is easy to understand why his behaviour at school has begun to deteriorate. This is in addition to the possibility that he does need glasses, would benefit from occupational therapy and needs a consistent approach from his parents.
Likewise, the father took the child to a psychologist without reference to the mother. He also saw the psychologist himself, recognising that he needed help with his own anxiety and that the child was in a dangerous situation. The father did not appear to understand that these well intentioned decisions of his left the child wondering whether he was supposed to keep such matters a secret, if so, why, and what it was about the mother that meant she should not be told.
After some cross-examination, the father did agree that he should have explained to the mother why he took the child to a doctor, obtained a diagnosis of asthma, applied the medication that was prescribed, sent an asthma puffer to school in the child’s bag, but said nothing to the mother about it. Likewise when the difficulties over the child playing football was raised, the father conceded that he had “visibly groaned” when the child told him he was playing rugby league. It is the father’s way to be indirect and to give hints, rather than to give clear explanations for his stances on things.
The father in fact has a very strong view that combative sports, as described by him such as football, are not safe. He is opposed to a child as young as the child tackling and running with his head down. He does not think it is safe. He did not have that conversation with the mother, which left it open for her to conclude that he was simply being oppositional. It may be a family trait. The father gave evidence that his grandfather referred to the child as ‘[M Coutts]’. The father said to his grandfather, “You’ve put me in a sticky situation.” The father made the statement about the child’s name, “It’s my surname; he identifies with it, my name is important too.” This statement confirms the view of the family consultant that the change of name is for the benefit of the father and not the child.
The father was asked whether he thought there might be ridicule or embarrassment arising from a change of name, especially a change of surname for the child. The father said and I accept, that he found that hard to imagine, but that is not to say that it would not happen, especially when his youngest sister one year down at school, presently has the same surname as he does.
The father at some level recognised that change to the current arrangement was inevitable. However he continues to hold the view that the child is “fully used to being shared.” I agree that is so, but all the signs are there of the child feeling overwhelmed at being shared between his parents, when what he needs is relief from the consequences. It must feel more like being pulled in half than being shared.
The Child’s Grade 2 Teacher
The child’s teacher said she had seen a marked improvement in his behaviour, although it was difficult for him to feel organised and get on with other children.
The child’s teacher had had a discussion with both parents and found that they were receptive but a little surprised by his behaviour at school. She expressed the view that they both seemed to have the child’s best interests at heart. She expressed the view that she was hopeful that the parents would work with the school, attend to his homework and talk about how things were going. It would certainly assist the child if the parents did work with the school in that way.
By consent orders, it can now be made for the child to complete his education at his current school. That will give the child some relief from the ongoing consideration of a move to a different school, which must have been unsettling for him.
The law
The objects of the Family Law Act 1975 (Cth) (‘the Act’) in relation to parenting Orders are to ensure that:
a) Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b) Children are protected from physical and psychological harm;
c) Children receive adequate and proper parenting to help them achieve their full potential;
d) Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.
Primary considerations
Section 60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child’s parents
The child does have a meaningful relationship with both parents. I accept the assessment of the family consultant that his primary attachment is to the mother but he is attached to both parents. This is despite there being no contact between the child and the father for the first three years of his life.
Both parents must have supported the development and maintenance of that relationship over the last six years. However there has also been competition, with the father resentful over the mother being “in charge”
Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence
There are two considerations here. The first is that there was a tumultuous relationship between the mother and her former partner, RR. It was not unreasonable for the father to be concerned that the child was being psychologically harmed as a result of exposure to abuse of the mother by that partner. The father wanted to be protective.
The other consideration is that the father has without ever intending to, emotionally abused the child by being dependent on the child to meet his needs, providing him with adult information critical of the mother and using him to convey that information, rather than speaking to the mother directly. This practice should stop. If the parties are incapable of picking up the telephone to have civil discussions with each other about the child, the use of a communications book should be reinstituted, but it would be preferable if short clear conversations or texts or emails were sent, confined to issues bearing directly on the welfare, education, health and development of the child.
Section S60CC(2A) - in applying the considerations set out in subsection (2) the Court is to give greater weight to the consideration set out in paragraph (2)(b)
The need to keep a chid safe from psychological harm outweighs the significance of maintaining relationships; however I am satisfied in this matter that the need for the child to regularly see the father, presently outweighs the destructive effects of the father in the way described.
In a statement by the child’s teacher[6], the child is reported to have written in his learning log, when the children were writing a prayer to the school’s patron saint:
I hope you can deliver this to Jesus and that my mum does not win in court and I can still see my dad.
[6]Exhibit 1
It is of considerable concern that the child seems to have believed that there was a possibility that he would not see the father again. However I take his statement into account as to the strength of his feelings on the subject of his relationship with the father.
Additional considerations
Section 60CC(3)(a) - any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views
The child has just turned nine years of age. In his interview almost 12 months ago, he was full of criticisms of the mother and entirely positive about the father. He described the mother smacking him up to 12 times a day; he also referred to being hit and punched as well, although not specifically by the mother. There is no evidence to suggest that the child is being hit and punched; only when play fighting with friends has he has occasionally been accidently hit. The child also reported the mother lying a lot, being mean; that she had hid him from the father until she wanted the father’s help.
There was however no view expressed by the child about his current arrangements or a change to them. My impression is that he said all that he could think to say that was critical about the mother, as a means of supporting and promoting the father. It is a sign of the emotional pathology identified by the family consultant.
Section 60CC(3)(b) - the nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
The child has his most important relationships with his two parents. He has a close emotional bond with his two sisters and historically a close and loving relationship with the maternal grandfather and his wife, and the maternal grandmother and her husband.
There is also a maternal aunt with two young children aged five and two, with whom the child has enjoyed family holidays and excursions.
There was no evidence from the paternal grandmother, but the evidence of the two parents suggests that she is a person well known and loved by the child. Certainly both of them thought that she would be a helpful person to effect changeovers.
Section 60CC(3)(c) - the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
The father did not spend time and communicate with the child for the first three years of his life. Since then he has been committed to doing so. Unfortunately the decision making process has been extremely difficult.
The mother has had the full financial responsibility for the child; she has enrolled him in a religious school and has paid his fees. Naturally the school looks to her for instruction.
In other areas of his health and extra-curricular activities, the father has either resisted the mother’s decisions in a passive way, or has undermined them by persuading the child in another direction. It has not worked well in a context of the child spending week about time with each of them.
Section 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
The father says he is now open to contributing to school fees, but over the whole of his life, the mother has had the obligation, which she has met by working, to maintain the child.
Section 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
The child is now thoroughly well established in his bond and attachment with the father; he enjoys his time with the father and is in no doubt at all about who his father is. A reduction in his time with the father is likely to relieve him from the pressure of the father’s reliance on him and also to give him a sense of being part of the mother’s household. He is reported to be happy in the new arrangements and the father is pleased that the mother’s current partner and her current living arrangements are suitable for the child.
Living primarily with one parent and spending substantial time with the other is, in my view, likely to have a stabilising effect for the child emotionally.
Section 60CC(3)(e) - the practical difficulty and expense of a child spending time with and communicating with a parent
The parents now live about 25 minutes driving time from each other and the mother’s home is a 10 to 15 minute drive from the school. Both parties drive and have a telephone. There will be no practical difficulties for communication.
Changeovers between the households should happen through term time from the school, which will reduce the potential for conflict and misunderstanding. If they cannot agree on any other method, then changeovers during holiday time, or when the child is not at school, can be affected from delivery and collection from the home of the paternal grandmother, or by her doing the travelling with the child.
There was agreement that the child was not enjoying changeovers at the contact centre and he is beginning to reach the age where he would prefer a more natural experience of moving between his parents.
Section 60CC(3)(f) - the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The mother has revealed a capacity to meet the child’s needs. She has attended to his education; she has been frustrated in her efforts to assist him with behavioural difficulties, which may or may not arise from the need for glasses, the need for occupational therapy, or some behavioural regulation, either through therapy or medication. She has stepped back from pressing on these issues when she and the father have been unable to agree, but she has certainly identified the child’s needs.
The father has a capacity to meet the child’s needs, but it is limited in respect of the emotional needs of the child. Without ever wanting to hurt him, he has placed too much pressure on him, criticised the mother and created a sense that he and the child are a team united against the “meaner” or unreasonable conduct of the mother. This was immature and insightless conduct, rather than malicious.
Section 60CC(3)(g) - the maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The child is a nine year old boy; he is the only child of the father and extremely precious in the father’s household. He is the oldest of three children in the mother’s household and has had the experience of the mother having had three partners in addition to the father. There has been quite a lot of adjustment for him and an abrupt ending to whatever relationship he had with RR. He is beginning to develop a tendency to see himself as a victim and to believe that life is unfair to him. He is a little bit envious of the fact that his younger sister has an easier time because her father and the mother have a much easier relationship than the mother and his father do.
Section 60CC(3)(i) - the attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
The mother has maintained a responsible attitude to the child, despite being a teenage mother raising the child alone for the first three years of his life. She has developed her skills and has well paid employment. She has acted protectively of the child and her other children in the relationship with RR.
The father once he met the child, has always wanted to be a part of his life, but he has not made a significant financial contribution and he has told the child things which have hurt him; for instance that the mother hid the child from the father when he was very young and only sought the father out when she needed help. The father has been insufficiently supportive of the mother.
Section 60CC(3)(j) - any family violence involving the child or a member of the child’s family and S 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family
There was a family violence order in place for the protection of the mother which expired on 1 September 2014. The mother was vigilant to report breaches by RR and has kept the children safe.
Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
The child has been spending week about time with his parents for four years. This has not been in the context of an easy flexible communicative relationship between his parents, quite the reverse.
It would be inevitable that he would find it difficult even in ideal circumstances, to go on changing households on a weekly basis, particularly once he was at high school. Extended weekends and half-holiday times will ensure that the child spends a good amount of time with the father, whilst enjoying stability in the household of the mother, with his two younger sisters and his new step-father.
Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant
The greatest source of stability and continuity in the life of this child has been the mother. Part of her history is that she was young and pregnant and alone when she met her next partner. He proved to be a kind and affectionate presence in her life and the life of the child and his surname was made available at a time when the mother was uncertain when she would see the father again, if she did.
That history is acknowledged in the child’s name and should not be peremptorily changed to address the father’s unhappiness over the child not bearing his surname. It may be that when the child becomes an adult, he will want to change some or all of his name and that will be his right, but the possibility that he would be teased at school; that there would be distance created between himself and his sister, or that he would be embarrassed, these things greatly outweigh the benefit of a change of name of the kind that is proposed by the father.
Orders have been made for the mother to have sole parental responsibility, so that decisions can be made and implemented with a requirement for information to be provided to the father. The evidence indicates that although the father would prefer for things to go on the way they are, he will be accepting of the mother having that authority, provided he is told what is happening in the life of the child. Increasingly, however, the child himself will simply talk about events in his own life.
There is an order for the child to live mainly with the mother and to spend alternate weekends and half school holidays with the father. Changeovers will take place mostly at school, but otherwise facilitated by the paternal grandmother, in whom both parents have trust and confidence.
There is an order that the father not come to the home of the mother without her prior written permission. This arises from past incidents which have destabilised the relationship between the parents, in particular where the father entered the mother’s home in her absence. However I do not consider that the father is likely to do such a thing again, but in the interest of preserving good relationships between the parents and also between the father and the mother’s new partner, it should be clear that the mother does not want the father to attend her home without her express permission.
Orders have been made accordingly.
I certify that the preceding one hundred and thirty three (133) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 5 December 2014.
Associate:
Date: 5 December 2014
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Consent
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