KAVAN & HAWKINS
[2012] FMCAfam 1421
•4 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KAVAN & HAWKINS | [2012] FMCAfam 1421 |
| FAMILY LAW – Parenting – shared care – whether shared care arrangement is in the child’s best interests – best practice in family report writing – meaning of “Effective Communication” – meaning of “Conflict”. |
| Evidence Act 1995 (Cth), ss.48, 50(3), 62, 69, 76, 77, 78, 79, 135, 136 Family Law Act 1975 (Cth), ss.11E, 11F, 13C, 13D, 60B, 60CA, 60CC, 60I, 60J, 61DA, 65AA, 65DAA, 65F International Convention on the Rights of the Child |
| Rice & Asplund (1979) FLC 90-725 Makita (Australia) Pty Ltd v. Sprowles [2001] NSWCA 305 Amador & Amador [2009] FamCAFC 196 MRR & GR [2010] HCA 4 U & U (2002) 211 CLR 238 Goode & Goode (2006) FLC 93-286 Marvel & Marvel (No.2) [2010] FamCAFC 101 Mabo and Ors v Queensland (No 2) [1992] HCA 23 175 B and B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 451 Biss & Biss [2009] FamCA 1234 Johnson & Page [2007] FamCA 1235 Mazorski & Albright [2007] FamCA 520 H & W (1995) FLC 92-598 Miller & Harrington (2008) FLC 93-383 SPS and PLS (2008) FLC 93-363 King & Finneran (2001) FLC 93-079 |
| Applicant: | MS KAVAN |
| Respondent: | MR HAWKINS |
| File Number: | CAC 698 of 2010 |
| Judgment of: | Harman FM |
| Hearing dates: | 21, 22 and 30 November 2012 |
| Date of Last Submission: | 30 November 2012 |
| Delivered at: | Albury |
| Delivered on: | 4 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Givney |
| Solicitors for the Applicant: | Walsh & Blair |
| Counsel for the Respondent: | Mr Hogg |
| Solicitors for the Respondent: | Creaghe Lisle |
ORDERS
As and from (omitted) 2012 all prior parenting orders with Respect to the child, X born (omitted) 2005, shall be discharged.
X shall live with his mother, MS KAVAN.
That the parents, MS KAVAN & MR HAWKINS, shall have equal shared parental responsibility for their child X.
X shall spend time with his father as follows;
(i)From after school on Thursday to 5:00pm Sunday each alternate weekend, commencing with the second Thursday of each school term;
(ii)From after school Thursday to the commencement of school the following day, commencing with the first Thursday of each school term;
(iii)For the second half of each school holiday (being those following terms 1, 2 and 3) and being from 6pm on the middle Saturday until 6pm on the last Sunday;
(iv)During Christmas school holiday and unless otherwise agreed between X’s parents:
a.in even numbered years from 5.00pm Christmas Eve until 2.00 pm Christmas Day ( and X shall be in his mother’s care from 2:00pm Christmas Day until 5:00pm Boxing Day);
b.in odd numbered years from 2.00pm Christmas Day until 5.00pm Boxing Day (and X shall by in his mother’s care from 5:00pm Christmas Eve until 2:00pm Christmas Day):
c.for the first half of the holidays in 2012 and each alternate year thereafter (and subject to orders (iv) (a) and (iv) (b) above) and for the second half of the holidays in 2013 and each alternate year thereafter;
d.Absent agreement, the first half of the holidays shall commence at 9:00am on the day after the last of school attendance and conclude 5:00pm on 6 January and the second half of the holidays shall commence 5:00pm 6 January and conclude 5:00pm on the last Sunday of the holidays;
(v)On the Father’s Day weekend from 5:00pm Saturday until 5:00pm Sunday (and X shall spend the period 5:00pm Saturday to 5:00pm Sunday of the Mother’s Day weekend with the mother);
(vi)On the child’s birthday:
a.if it is a weekday from after school until 7:00pm;
b.if it is a weekend from 12:00pm until 5:00pm;
(and X shall, if in his father’s care on his birthday, spend the same period with his mother)
(vii)At all other times as are agreed between the parties in writing.
In the absence of other arrangements changeovers shall occur at school otherwise the mother shall drop X to the father’s house and the father shall return X the mother’s house.
In the event that X suffers any illness or injury requiring medical attention or hospitalisation whilst with either party then that party shall immediately notify the other party of such illness and the name of the medical practitioner or hospital to which X is taken.
Both parents shall authorise any school that X may attend to provide each parent copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/ teach nights, and inform each parent of any emergency, remedial or correctional treatment required by X as soon as is practicable, and each parent is entitled to attend school events, parent/teacher appointments and the like.
Each parent shall authorise any treating medical practitioner, hospital or medical practice that X shall attend from time to time to provide to each parent any information they request.
That the parties shall notify each other within 7 days of a change of address and within 48 hours of a change of telephone number or email.
Neither party, their agent and their servants shall denigrate the other party to the child, in front of the child or within the child’s hearing.
Pursuant to section 13C of the Family Law Act1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Family Relationships Centre (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.
In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Kavan & Hawkins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ALBURY |
CAC 698 of 2010
| MS KAVAN |
Applicant
And
| MR HAWKINS |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing applications for parenting orders with respect to a child, X, born (omitted) 2005. X will, very shortly after this Judgement and before the conclusion of the school year, turn seven years of age.
The parties to the proceedings are X’s parents. X’s mother, Ms Kavan, is the Applicant, and X’s father, Mr Hawkins, is the Respondent.
History of proceedings
The proceedings were commenced by Application filed by Ms Kavan on 6 May 2010, being some two and a half years ago.
The matter has proceeded through a number of mentions and directions. A Family Consultant’s memorandum was prepared and released on 1 December 2010. That memorandum was prepared pursuant to an order made by Neville FM on whose docket the proceedings then resided.
Following the release of that memorandum, orders were made listing the proceedings for an interlocutory hearing. That hearing occurred on 16 August 2011 before Henderson FM. Both parties appeared and were represented by Counsel. Both parties gave evidence in those proceedings.
At the conclusion of that interlocutory hearing, her Honour made an order in the following terms:
Leave is granted to the mother to re open the litigation in this matter.
There has been some issue between the parties, to which I shall return, as to whether the Court has already made a Rice & Asplund (1979) FLC 90-725 determination and whether the crossing of the threshold created thereby, if it might be so referred to, has occurred. In addition, even if that has occurred, it has been agitated in the father’s case that a question be posed of whether Rice & Asplund continues to have some relevance to the proceedings.
It would appear clear that the matter was listed on 16 August 2011 to determine that preliminary threshold issue as a consequence of orders made by Neville FM on 8 February 2011 and in the following terms:
The matter be listed for hearing on the preliminary threshold issue only for half a day….
In any event, that determination having been made, the proceedings have been continued to Final Hearing.
A Response was filed by the father on 9 June 2010. That Response, by its terms, made clear that the father opposed the relief sought by Ms Kavan, both as to a reopening of litigation and with respect to substantive orders. That is clear in that the father’s Response sought, both on a final and interim basis, the following orders:
(1)That the mother’s Application be dismissed.
(2)That the orders made 24 March 2008 remain in place unchanged.
(3)That the Applicant pay the Respondent’s costs.
The orders that are referred by the father are orders made by consent in the Local Court at Wagga Wagga. Those orders provide for an equal shared care arrangement for X and have meant that X has, since that early stage in his life, lived in an arrangement of weekly cycles so that he spends from 5.00pm Friday to 5.00pm Friday following with one parent and then the same with the other.
Additional orders were made specifically with respect to X’s birthday, Christmas Eve, Christmas Day and some other periods of time, as well as orders with respect to communication with X by telephone.
The Local Court orders also provide for the use of a communication book by X’s parents, which order assumes some particular significance in these proceedings.
Somewhat extraordinarily, and again a matter of some moment in the proceedings, the consent orders made by the Local Court in March 2008 provided at order 10:
Collection and return will occur in front of Children’s Contact Centre, (omitted).
It would appear clear from the parties’ evidence that a number of different changeover arrangements have occurred all of which have involved a neutral venue. At times this has comprised changeovers at a police station and, at other times, outside of the Children’s Contact Centre (as referred to in the order). More recently changeovers have occurred within the Children’s Contact Service on what would otherwise be considered a “supervised basis”.
Material considered
Prior to the commencement of this trial each of the parties filed a case outline document. Each of the documents enumerated therein has been read and considered.
In the Applicant’s case this has comprised:
a)Her Application initiating proceedings filed 6 May 2010;
b)An Affidavit of evidence of Ms Kavan sworn or affirmed 20 June 2012 and filed 21 June 2012;
c)A further Affidavit of Ms Kavan sworn or affirmed on 31 October 2012 and filed on the same date; and
d)An Affidavit of Mr C, being Ms Kavan’s partner, sworn or affirmed on 20 June 2012 and filed 21 June 2012.
Ms Kavan’s material was filed in anticipation of a hearing of these proceedings that was to have occurred on 28 and 29 June 2012 on the Albury circuit of the Court. However, the matter was not reached on that occasion and was, accordingly and with the consent of the parties, transferred to the Parramatta Registry and heard on 21 and 22 November 2012. Submissions were concluded by telephone on 29 November.
In Mr Hawkins’s case I have read and considered each of the documents identified by him and comprising:
a)A Response filed 9 June 2010;
b)An Affidavit of Mr Hawkins sworn or affirmed on 8 June 2012 and filed on the same date;
c)A further Affidavit of Mr Hawkins sworn or affirmed on 17 November 2012 and filed on the same date;
d)An Affidavit of Ms J, sworn or affirmed on 7 June 2012 and filed on 8 June 2012; and
e)A further Affidavit of Ms J sworn or affirmed on 16 November 2012 and filed 17 November 2012.
In addition to the Affidavit material I have considered a number of documents provided by Counsel for each of the parties in the nature of case outlines, minutes of orders proposed and outlines of submissions.
I have also had the benefit of the Child Dispute Conference memorandum referred to and to which each of the parties has made some reference during evidence together with a Family Report prepared by Family Consultant Ms W dated 8 December 2011 and released to the parties on the same day.
Each of the parties and their respective partners have been required for cross-examination as has Ms W.
A number of documents have been introduced into evidence by way of tender and they have comprised:
a)Exhibit F1: the communication book or a copy thereof maintained between these parents of over some years.
b)Exhibit F2: correspondence passing between the parties’ attorneys.
c)Exhibit F3: the totality of notes produced by the (omitted) Children's Contact Service.
d)Exhibit F4: a pathology report.
e)Exhibit M1: a handwritten list of absences purported to apply to X in recent times.
f)Exhibit M2: a list prepared by Ms Kavan relating to the above absences and suggesting those of which she had not been advised and which had occurred at times when X was in his father’s care.
g)Exhibit M3: a table of text messages sent between the parties.
h)Exhibit M4: correspondence between the parties’ attorneys.
i)Exhibit M5: further correspondence between the parties’ attorneys.
j)Exhibit M6: A document headed “Action Plan” and prepared by or with the input of a paediatrician with whom X has consulted at some time in the past.
The table respect to text messages (Exhibit M3) produced by Ms Kavan is not the only table that has been received into evidence. In closing submissions, a table was also received, without objection from Counsel for Ms Kavan, and headed ‘Summary of Parties’ Interaction via the Communication Book’. That document sets out a chronological listing by reference to page numbers of the communication book, there being 68 pages in total, summarising the history of entries made by each of the parties, the issue to which it has spoken and a number of other comments.
Each of those tables have been admitted into evidence pursuant to section 50(3) of the Evidence Act 1995 (Cth), and the latter without objection. Some objection was raised with respect to the table prepared by Ms Kavan. However, on the basis that her evidence was clear that the table was prepared by her and by her, at the time of preparation, having had reference to the entries which had, in fact, been sent as text messages between the parties, it was admitted.
Chronology of events
At the outset of the case, it was conceded, with some generosity by Counsel for Mr Hawkins, that the chronology of events prepared by Counsel for the mother was both an accurate and an excellent summation of historical events. Thus I accept and adopt that chronology and incorporate it within these reasons at this point.
CHRONOLOGY
2003
(omitted) Parties commenced to live together.
Parties live at (omitted), with father’s parents.
Mr Hawkins says parties meet in (omitted).
Mr Hawkins says Ms Kavan is studying (omitted) and he is studying for a (omitted qualifications) both at the University in (omitted)
2004
AprilParties commenced to live in apartment in (omitted).
Mr Hawkins says Ms Kavan tells him upon becoming pregnant “I’ll have the baby, but you will have to look after it.”
2005
(omitted) X born.
Ms Kavan says Mr Hawkins then working 10.00am to 4.00pm three to four days per week at the (omitted).
2006
During 2006 parties agree to move to (omitted)
JanuaryMr Hawkins says Ms Kavan returns to work eight weeks after X’s birth. Mr Hawkins says Ms Kavan works four days per week at a (omitted) and three nights per week at the (omitted).
FebruaryMs Kavan returns to work, working at a (omitted) from 9.00am to 5.00pm four days per week. Ms Kavan works two shifts at (omitted) on a Tuesday and Friday.
Mr Hawkins attends (omitted) University as a full-time student.
Mr Hawkins says that he also works four nights per week from 7:30pm to 4:00am at (omitted).
Mr Hawkins says he is X’s primary carer for 12 months.
Mr Hawkins says his parent’s care for X when he is at University.
Mr Hawkins says when both parties working his parents put X to bed.
AprilMs Kavan changes working hours to three days per week at the (omitted).
Between April and September Ms Kavan says she observes X not sleeping comfortably and formed the view that he required more of her attention.
May Ms Kavan introduces X to solids.
SeptemberMs Kavan reduces her working hours from 9.00am to 2.00pm three days per week and ceased working Friday shifts at the (omitted).
Mr Hawkins says Ms Kavan’s mother is diagnosed with cancer and parties decide to move to (omitted)
DecemberParties move to (omitted) and live at (omitted).
2007
Ms Kavan commences business as (omitted). Ms Kavan works out of (omitted) operating two days per week from 9.00am to 2.00pm on Mondays and Fridays.
Mr Hawkins obtains employment at (omitted) as a (omitted) working a 10 hour day four days per week.
Mr Hawkins says Ms Kavan takes over role as primary carer with the assistance of her mother.
(omitted) . Ms J gives birth to Y and Z
SeptemberMr Hawkins says parties move into two bedroom unit at (omitted), (omitted).
Parties move to (omitted), (omitted).
DecemberParties separate. Father [Mr Hawkins] vacates property and lives at (omitted), (omitted).
2008
January Parties separate.
Mr Hawkins vacates home.
Mr Hawkins commences to live at (omitted), (omitted).
Mr Hawkins says he buys furniture and necessaries for X.
Mr Hawkins advises Ms Kavan that he opposes X staying with Ms Kavan’s parents or attending day care. Mr Hawkins also advises he does not wish X to attend at (omitted) Childcare Centre.
19. Mr Hawkins refuses to return X to mother’s care.
Ms Kavan seeks assistance from Family Relationships.
Ms Kavan says she finally collects X from Mr Hawkins’s care nine days after she had delivered X to Mr Hawkins’s care. Ms Kavan finds X in an angry and distressed state.
22. Ms Kavan files Application at Local Court Wagga.
29. Parties enter into Interim Orders.
February Mr Hawkins says at contact changeover, “Sorry mate you shouldn’t have to be put through this.”
Ms Kavan commences employment as a (omitted) working three days per week from 9.00am to 4.00pm.
Ms Kavan requests Mr Hawkins to have his rostered days off fixed.
Ms Kavan enrols X in (omitted) Family Day Care.
March4. Mr Hawkins’s solicitors advise that X does not have his own room and sleeps in the same bed as his father as a temporary arrangement.
5. X commences attending (omitted) Day Care on Wednesdays and Thursdays from 9.00am to 4.00pm. X attends centre whilst in Ms Kavan’s care.
24. Parties attend Local Court Wagga. Mother says she is advised by her solicitor to enter into a shared parenting arrangement. Mother consents to Orders against her wishes.
Parties enter into Final Consent Orders, providing X lives with both parents on rotating seven day cycle and other Orders for Christmas and Father’s Day.
Parties attend changeovers at the front of Relationships Australia at (omitted).
AprilMs Kavan commences to live at (omitted), (omitted).
June Mr Hawkins moves to (omitted), (omitted).
Ms Kavan introduces X to Mr C.
Ms Kavan says she observed that X’s fear of various objects and creatures had increased over the previous 12 months.
OctoberMs Kavan commences to live in de facto relationship with Mr C [Mr C].
X aged 2 years commences to attend “(omitted)” a children’s gymnasium.
Ms Kavan asserts that the father was aggressive at contact changeovers. Parties commenced changeovers at the Contact Centre and have no face to face contact at changeovers.
From 2008 to 2010 Ms Kavan observes behaviour of X of contact changeovers and at soccer matches
2009
Ms Kavan asks Mr Hawkins is X attending a childcare centre. Mr Hawkins advises that he attends (omitted) two days per week. Mr Hawkins does not advise mother which days of the week he attends. Mother telephones day care centre who refuses to divulge information. Mr Hawkins advises Ms Kavan by text message the days X attends
JanuaryThe mother [Ms Kavan] moves to (omitted), (omitted).
February20. Ms Kavan asks Mr Hawkins is he going to take X to (omitted) Family Day Care through communication book.
MarchMs Kavan requests Mr Hawkins to advise who exactly does he live with. Ms Kavan expresses concern about father’s living relationships and requests a meeting.
17. Mr Hawkins advises Ms Kavan it is up to him what he does with X during his week.
Ms Kavan enrols X in (omitted) Preschool each Friday. Ms Kavan pays for each Friday. Mr Hawkins does not take X to that preschool until March 2010.
(omitted). Ms Kavan gives birth to W.
Between March 2009 and until April 2012 X advises mother every three months he does not wish to go to Dads and that he wants to stay at home
April10. Mr Hawkins advises mother in communications book that X has been prescribed Ventolin. Ms Kavan attends doctor and obtains prescription for Ventolin.
X reports to his mother that Mr Hawkins takes him to University.
October Mr Hawkins moves to house at (omitted), (omitted).
November8. Ms Kavan takes X to hospital due to him apparently suffering Croup. Ms Kavan observes father deny to a doctor that X has been diagnosed with Asthma.
Ms Kavan is invited to attend a friend’s wedding at (country omitted) to occur in February 2010. Ms Kavan delivers passport application to father in communications book. Mr Hawkins advises Ms Kavan that he has concerns. Mr Hawkins does not sign passport application and mother does not attend wedding.
13. Ms Kavan includes diet and symptom diary for Mr Hawkins in communication book. Mr Hawkins advises that he is satisfied with X’s diet.
2010
February9. Ms Kavan observes X at a recreation oval at 7.45pm whilst in fathers care and apparently unsupervised.
Ms Kavan stops and speaks to X and gives him an apple and a muesli bar and stays with him for an hour.
25. X requests mother to look after him at soccer.
April Ms Kavan and Mr C become engaged.
30. Mother files Initiating Application.
October5. Parties attend Family Consultant for short report.
18. Ms Kavan gives birth to V.
NovemberParties following advice of family consultant arrange for changeovers to occur on a face to face basis but still supervised.
Ms Kavan says X commences to suffer nightmares.
30. Family Consultant completes short report
2011
JanuaryX commences school at (omitted) Public School. Such school is situated 1km from Ms Kavan’s home.
Mr Hawkins enrols X in soccer.
Mr Hawkins says he enrols X in Under 6’s for (omitted).
Mr Hawkins says Ms Kavan does not take X to soccer or training in her week.
MayMs Kavan observes the frequency of X’s nightmares have increased from once per month to two to three nights per week.
June X advises Ms Kavan that he is playing soccer.
X describes a nightmare to Ms Kavan.
July22. X tells Ms Kavan that he wishes it wasn’t Friday
August16. Federal Magistrate Henderson hears Rice and Asplund argument and effectively grants wife leave to proceed. Federal Magistrate Henderson orders preparation of Family Report.
18. X advises mother that she has to take him to soccer.
Ms Kavan becomes aware that Mr Hawkins had a partner through reading his Affidavit.
Mr Hawkins says he commences relationship with Ms J. Ms J has two children twins Y and Z aged 4 years.
SeptemberMs Kavan becomes involved in argument with Mr Hawkins’s brother-in-law at soccer over contact with X at a soccer match.
19. X does not attend school. Mr Hawkins does not advise Ms Kavan.
20. X does not attend school. Mr Hawkins does not advise Ms Kavan.
21. X does not attend school. Mr Hawkins does not advise Ms Kavan.
October26. Ms Kavan says X has bad dream and wets his bed.
November29. X does not attend school. Mr Hawkins does not advise Ms Kavan.
December8. Father says he receives notification in communications book “X not going to school today. He is fine, just has sore toes cos he fell over.” Mr Hawkins says he observes X with bruised eye and grazed forehead.
12. Ms Kavan introduces herself to Mr Hawkins’s partner.
15. X does not attend school. Mr Hawkins does not advise Ms Kavan.
24. Father says he shares centre experience with X.
25. Father complains that mother informs X it must have been Santa’s helper
2012
January29 . Ms Kavan observes X becoming hysterical when observing a crab.
X again is enrolled in soccer and both parties attend his games.
Mr Hawkins says X commences Year 1 and commences to receive homework.
Mr Hawkins says Mother enrols X in soccer without notice to him.
February20. X does not attend school. Mr Hawkins does not advise Ms Kavan.
April30 . X does not attend school. Mr Hawkins does not advise Ms Kavan.
May1. X does not attend school. Mr Hawkins does not advise Ms Kavan.
3. X does not attend school. Mr Hawkins does not advise Ms Kavan.
4. X does not attend school. Mr Hawkins does not advise Ms Kavan.
13. Ms Kavan requests time with Mr Hawkins’s partner but she advises that she would prefer Mr Hawkins to be present.
JuneMr Hawkins says Ms Kavan interferes with X introducing his sister’s to his family at soccer training.
8. Mr Hawkins swears Affidavit advising he is a student studying for (omitted qualifications).
Parties argue through text messaging.
17. Ms Kavan asserts father did not keep her informed of X attending a doctor whilst in his care.
28. Proceedings before Federal Magistrate Harman. Federal Magistrate Harman marks matter “Not Reached” and lists matter for hearing for two days commencing 21 November 2012.
There are a number of disputed facts arising both from the Affidavit material and the cross-examination of the parties. I do not propose to canvass each and every factual dispute between the parties, there being a significant number of them. However, to the extent that it is of some assistance and by reference to the cross-examination of the parties, I propose to touch upon their evidence.
What is clear, from any view of the evidence, is that the parties had separated at a time when this little boy, X, was quite young. It is suggested that the parents had separated only some months prior to the orders being made, separation having occurred, without controversy, in January 2008.
Very shortly after the separation of the parties and on 22 January 2008, the first Application with respect to X’s future care arrangements was filed in the Local Court at Wagga Wagga by Mr Hawkins.
On 29 January 2008, interim orders were made.
The final orders were entered into between these parties on 24 March 2008.
It is to be noted that, at the time that those orders were entered into, this little boy was a little over two years of age.
The evidence
Ms Kavan
Ms Kavan, as the Applicant, gave evidence and was cross examined first.
Prior to cross-examination, Ms Kavan sought leave to adduce some brief oral evidence which was not of great significant as the evidence ultimately developed in the case.
Cross-examination of Ms Kavan commenced with reference to the communication book. It was put to Ms Kavan that the communication book was a good record of the communication between these parents. Ms Kavan’s response was to the effect that:
…it is the only communication that has occurred between us except for a limited number of text messages and a very few phone calls.
It was suggested that phone calls were an important method of communication between these parents and Ms Kavan responded that there were very few and that the majority of communication - and, indeed, the vast bulk of it – occurred through the communication book.
It was suggested that, until April 2008, being only a month after the orders were made, there had been relatively good communication between these parents, and Ms Kavan’s response was, “It appears that way.”
It was suggested that, until April 2008, the communication book had reflected good, healthy communication between these parents. The communication book had subsisted at that point for a very limited period. In any event, Ms Kavan responded:
The communication was not healthy. It looks like we’re communicating, but there’s a lot of dishonouring of agreements.
It was suggested that, in April 2008, communication started to change. Ms Kavan indicated that she could not recall exactly when communication began to change, but that, certainly from that period, there was less writing by either parent in the communication book.
What is to be observed is that prior to that period around April 2008, each of these parents had been quite effusive in the entries that they made in the book and quite clearly expressed the joy that they each found in the milestones that their son was reaching and in the events that were occurring in his life.
It was suggested to Ms Kavan that communication had begun to change, and for the worst, in April of 2008 and that this corresponded with the time that Ms Kavan commenced to cohabit with her new partner, Mr C. Ms Kavan disagreed with that proposition and suggested that her relationship with Mr C did not commence in any real or substantial nature until October or November of that year, thus post-dating the disintegration of communication. Ms Kavan tied the breakdown in communication to the commencement of the shared care arrangement.
It was suggested to Ms Kavan that from April 2008, it being remembered that this is a period of four and a half years in this small child’s life, communication became and has remained strained. Ms Kavan responded, “Communication has always been strained.”
When it was suggested to Ms Kavan that she turn her mind to what might have changed in or around April 2008 and thus having caused or contributed to this change, Ms Kavan’s response was “At the end of March 2008, the orders were put into effect”. It is trite to observe that what one might expect to see in place between parents, to predict the successful operation of a shared care arrangement (and as codified in s.65DAA(5)(c)), commences with and is focused upon good and healthy communication and problem solving.
A number of further matters were put to Ms Kavan with respect to communication and, in particular, the primacy of health issues with respect to X, the subject of that contained within the communication book. Ms Kavan agreed that this was, indeed, the subject matter of the majority of exchanges within the communication book.
It was raised with Ms Kavan that there was and had been some tension between these parents regarding conventional treatment of X’s medical issues and what was described as “alternate remedies”. Ms Kavan, who is a qualified (occupation omitted), responded:
The tension, if there is any, is between complementary medicine rather than alternative remedies.
It was suggested that Mr Hawkins was fully supportive of Ms Kavan’s desire for (occupation omitted). Ms Kavan disagreed with that proposition. When it was asked specifically when she said he had been unsupportive, Ms Kavan pointed to two occasions when she suggested Mr Hawkins had firstly agreed to the use of a complementary medicine regime but then simply did not do that which Ms Kavan believed he had indicated he would.
Further issue was raised with respect to Ms Kavan having been suggested to have failed to provide a number of pieces of information with respect to medical treatment, including the results of blood tests which had recently been undertaken. Ms Kavan disavowed that suggestion, indicating that she could not provide them as she did not have them, but had simply been given them to read whilst at the doctor’s surgery.
It was suggested that issue had arisen regarding X having been investigated for food allergies and that she had not raised these matters with Mr Hawkins. Ms Kavan indicated, “I did”. She was shown the communication book and asked to identify any entry regarding such matters. Ms Kavan pointed out an entry wherein she had indicated, following an inquiry by Mr Hawkins, “As I told you before…”.
It became clear from this line of questioning, and the evidence of the parties including the tenders, that matters had been specifically raised regarding dietary issues and, in particular, the introduction or proposed introduction by Ms Kavan of a dietary diary so that each parent, within their household, could keep track of foods that had been given to X, and so as to seek to eliminate a number of concerns with respect to specific suspected food allergies and, in particular, suggested allergies to foods that were yellow and/or red.
What was clear from the evidence following both the cross‑examination of Ms Kavan and that of Mr Hawkins was that the entry in the communication book by Ms Kavan suggesting cooperation between the parents regarding the dietary diary had been misinterpreted by Mr Hawkins as a criticism of him rather than as a request to co-operate. Thus it was not followed through.
A number of other propositions were put to Ms Kavan regarding those matters and a suggested lack of attention to those matters, suggesting a lack of real concern on the part of Ms Kavan. Ms Kavan again rejected this proposition, indicating that in her week with X she was very conscious of the child’s diet and cooked all his meals from scratch, but she was concerned that she had no control over and was unaware of his dietary intake if he went into the care of others, including, but not limited to, Mr Hawkins. She pointed particularly to food that might be consumed at parties or the like.
It was put to Ms Kavan that she did not respect Mr Hawkins as a parent. Ms Kavan agreed with that proposition, but indicated, “We don’t respect each other and X knows that”.
Ms Kavan was asked of her view of the relationship between Mr Hawkins and her fiancé, Mr C. She indicated quite frankly, candidly and readily:
They don’t get along. There’s lots of stress. It’s how stressed I get. Mr C gets frustrated and angry.
The major issue arising from Ms Kavan’s evidence and, indeed, the major basis upon which Ms Kavan purported to have brought her Application, was the suggestion that X was not coping with the present equal time arrangement and was demonstrating same, as far as Ms Kavan was concerned, through a number of behaviours that she has observed of X in her care. Ms Kavan indicated that there were significant behaviour issues observed that caused her concern.
It was suggested to Ms Kavan that Mr Hawkins had not observed any of these behaviours and she agreed that this may be so. Clearly, Ms Kavan is not in a position to fully know. In any event, it was asked of Ms Kavan whether she had turned her mind to considering whether X had some unresolved concerns or fears regarding her partner which might explain both the behaviours and the suggested non-observation of same by Mr Hawkins. Ms Kavan indicated that she did not agree that this was so. It was suggested that, perhaps, X had some fear of her partner, Mr C, that he was internalising, thus causing the behaviours that she had observed. She again disagreed with that proposition.
When it was then put to Ms Kavan to explain her understanding of why she had observed the behaviours but not Mr Hawkins, her response, somewhat sagely, was:
Perhaps I have more insight into his needs and a better understanding. He says “I don’t tell my Dad these things”.
Ms Kavan then opined that she believed that X may be telling his father what he believed his father wanted to hear, but that when he was with her he tells her what he is genuinely feeling and he cries. She expressed the opinion that she did not believe that behaviours or concerns for X were not manifest whilst in his father’s care, but purely that X either did not express the concerns or that Mr Hawkins did not see or pick up on the unsettled behaviours.
It was put to Ms Kavan that such behaviours as she had described, which comprised angry outbursts, bedwetting, nightmares and phobias and anxieties, were not observed by any staff at the school that X attends. It was conceded that X is doing well at school. Ms Kavan added, “School is great for him. It’s the only place where he’s not torn between different worlds”. That is a matter that was also touched upon by Ms Kavan in that which is reported of her in Ms W's.
A number of questions were put to Ms Kavan regarding changeovers which occurred through the (omitted) Supervised Contact Service. It was suggested that the contact service notes, which ultimately were tendered in their entirety, suggested that X, at changeovers, was observed to be happy and well settled. Ms Kavan indicated, “That depends. Sometimes it’s great, other times it’s not”.
It was put to Ms Kavan that the equal shared time arrangement, having now been in place for more than four years, was an established routine in X’s life. Ms Kavan agreed with this.
It was suggested to Ms Kavan that she was very anxious. Ms Kavan’s presentation in the witness box was suggestive of being anxious or stressed.
It was put to Ms Kavan, although the basis for the proposition was entirely unclear and not, ultimately, introduced into evidence, that she may have some anxiety disorder or predisposition to same. Ms Kavan disagreed with this proposition. She went further to indicate that she did not agree with the proposition put to her that X was simply mirroring or projecting anxiety which she held. Ms Kavan also indicated that she had not taken him to see a counsellor or psychologist because she believed he was simply too little. However, she indicated that she had been herself and taken advice herself from a psychologist regarding how to best deal with the matters she was observing and to support X.
It was suggested that when the existing orders were put into place she had believed that X would cope with the changes that were occurring. She indicated that she had been hopeful that this might be so but had never genuinely believed that the orders were in the child’s best interests. When it was suggested that X might not now cope with a change, having been in a shared care arrangement for some significant time, Ms Kavan disagreed. She indicated that the change would be positive for him, he would be less anxious, and he would be more secure if living primarily with one parent and, particularly, with her.
One of the criticisms that Ms Kavan had raised was that Mr Hawkins had not communicated to her through the communication book or otherwise days when X was not at school, and thus she had attended school expecting him to be there and participate with him in groups and the like. It was suggested to Ms Kavan that this was explicable as X was taken by his father to visit paternal family, who live some distance away, and thus occasionally missed school particularly on a Monday. Ms Kavan indicated:
I don’t know where he is or why he’s away from school. I go to school for reading groups and I find out he’s not there. I text [Mr Hawkins] and he will answer sometimes two days later.
It was suggested to Ms Kavan that rather than changing the arrangements for X’s care that such concerns and frustrations as she held could be cured with a simple order of the Court requiring the communication of such information. Ms Kavan’s response was, again somewhat tellingly:
Why would it need an order? It would just be common courtesy to let me know.
A number of questions were put to Ms Kavan regarding the Family Report interviews and that which Ms Kavan had communicated to Ms W. The matters that she had put to Ms W were repeated to her to confirm that she had, in fact, raised them, including reporting that X has angry outbursts and the like. This had included a suggestion that X had, whilst in the care of a babysitter, taken a knife to bed with him. Ms Kavan clarified that it was not a real knife, but a toy knife.
It was suggested to Ms Kavan that the outbursts and other behaviours that Ms Kavan was observing (if actually observed) were no greater than would ordinarily be expected of a child of this child’s age, and did not demonstrate anything significant. In any event, it was suggested to Ms Kavan that she had never communicated any of these concerns to Mr Hawkins. Ms Kavan responded that she had, indeed, communicated to Mr Hawkins through the communication book that X was unsettled and that she had observed him to be unsettled, without going into specific detail. The communication book corroborates that version of events.
It was, again, suggested to Ms Kavan that she was upset and teary whilst in the witness box and perhaps this suggested some underlying anxiety. Again, there was no evidence before the Court to suggest any basis for that proposition. In any event, the proposition was rejected by Ms Kavan who suggested that she was simply stressed by the proceedings and by being in a witness box. That is wholly plausible.
As regards being teary and upset at the time of Family Report interviews, Ms Kavan had indicated that at times she had been. She had been particularly upset when X had said to her that he “…did not have a home” and that she had had to repeat that to the report writer.
Family Report writer
Due to difficulties in the availability of the report writer, Ms W was interposed and cross‑examined at the conclusion of Ms Kavan’s evidence.
It was put by Counsel for Ms Kavan that the opinions that had been consistently expressed by the Family Consultant through both the Child Dispute Conference memorandum and Family Report had been that the parents’ relationship with each other was typified by being uncommunicative. The report writer was asked to elaborate upon the matters that had caused her to form that view. These were indicated by Ms W as being:
a)The fact that the parents used a supervised contact centre;
b)The parents expressed distrust of each other; and
c)That each parent was unaware of a number of matters occurring with X whilst in the care of the other and, in particular, as an example thereof, that Ms Kavan had indicated that she was unaware of the father’s relationship with his partner. That is a matter which was also not raised or disclosed by Mr Hawkins to the report writer at the time of interviews although it would appear that Mr Hawkins and his partner, Ms J, were not at that time cohabiting, but were very much in a relationship. As the relationship was not disclosed Ms J was neither invited or involved in the report interviews.
The report writer was asked whether she had any concerns regarding the child’s presentation and particularly as to whether he might be confused with respect to any primary attachment that he holds.
It was suggested by the report writer that X probably had a primary attachment but his attachments with each parent were of a conflicted nature because of the time arrangement and it having been in place since he was two years of age. It was suggested that this made it difficult for him to feel secure.
A number of tests had been administered by the report writer and that aspect of her report will be dealt with in some detail shortly. The report writer was asked about those tests, which had been administered to the child, and reported commencing at paragraph 6.4 of the report. The testing results had suggested that there was a frequency of referral by X to his mother which had given the report writer an indication of his attachment or closeness to his mother in preference to his father.
The report writer agreed that this was so and elaborated upon her interpretation of such testing results by indicating that the fact that the majority of responses given by X were with respect to his mother made it more likely that she was the more influential parent. The variety of responses given by him suggested a full and meaningful relationship with his mother, and that he “experienced her more emotionally”.
The report writer had suggested that the communication book used between these parents since X was two years of age should be abandoned. When asked to elaborate on this the report writer indicated:
It is not unusual for me to suggest that they do so. They should speak to each other. A book is not a sufficient means for communicating information especially in a shared care arrangement.
It was put to the report writer that the child was doing well at school, and the report writer was asked whether this was a good indicator of how well parented the child was. It was suggested that this was probably so.
It was asked whether the fact that the child was doing well at school would normally be an indicator that he was doing well at home. This general proposition was agreed with.
The proposition was put to the report writer that if there was dysfunction with respect to the child’s parenting or parenting arrangements that the child may gain security from school and could thus be doing well at school while still experiencing dysfunction in parenting. This was again, agreed, with.
It was suggested that school might be seen as an oasis and thus the child doing well at a school might demonstrate that school is some form of respite. This proposition was, again, agreed with and the report writer indicated that school generally represented a structure and a level of certainty that may not always be available at home.
The report writer was asked whether she believed that the mother was frank when she had raised the issues of concern that were reported of her by the report writer. The report writer said there was no reason to doubt what the mother had said and, indeed, if what she had reported was accurate, it suggested that the child was emotionally disregulated.
It was suggested that the child, being in a week about arrangement, had not formed primary attachments and that having uncommunicative parents, it would then be reasonable to expect that the child would have emotional difficulties with the arrangement. The report writer indicated:
Yes, the research suggests that a child of that age should have one primary parent. It would be destabilising with movements between households and emotionally difficult, and long-term difficulties socially, emotionally, psychologically and educationally might be expected.
The report writer was asked if the child had formed attachments with the mother and whether the arrangement would have made it hard for this to occur. The report writer indicated:
Whether X did or did not, his two most meaningful relationships are with his parents. He is confused and unsure and emotionally disruptive, and the two people most important to him do not like each other and do not communicate. That would not help.
It was put clearly to the report writer whether she recommended that the shared care arrangement ended. The report writer readily and quickly agreed with that proposition. When asked what care arrangements might apply, the report writer suggested weekend time, preferably alternate weekends and possibly from Friday to Monday or Saturday to Sunday.
The report writer’s evidence was to the effect that the structure of the weekend was of less importance than the structure of time overall. That is, whether the time went from Friday to Monday, Saturday to Sunday or any other period was of less consequence than simply the change of arrangement away from equal time.
In cross-examination by Counsel for the father, the Family Report writer was asked to assume that what the mother related as concerns in the child’s behaviour were not reliable or had simply not occurred.
The report writer was then asked from her own observations whether she had formed any view about whether the week about arrangement was then working, absent the concerns or criticisms the mother raised. The report writer’s response again was telling, being:
From what I know of research since the amendments [being the 2006 amendments] if there is a conflictual relationship between parents, then shared care would not be in this child’s best interests. The child was very young when the shared care arrangements started. It is known not to be in the interests of a child between nought and four to be moving between two parents frequently, even if they have a reasonable relationship.
The report writer was clear that, in her view, these parents did not have a cooperative alliance.
The report writer was asked whether it was unusual that the child is suggested by the mother to be displaying concerning behaviours but such behaviours are only observed by her or within her household. The report writer indicated:
No, it is not unusual. It is common. Children’s relationships with each parent are different. Children display both negative and positive behaviour with a parent with whom they feel comfortable.
Thus, if one accepts that X feels comfortable with his mother, one could infer from the report writer’s evidence that Ms Kavan may be the parent to whom the child, as it were, opens up, and thus she observes the behaviours.
It was suggested that if the child was moving between a household with an anxious parent and a non-anxious parent, then the child’s behaviour would probably settle quickly. The report writer opined:
If the child has anxious feelings, it is unlikely to just suddenly stop. A child at seven years of age has some ability to think of cause and effect.
Again, the report writer’s evidence would suggest that if the proposition upon which the question was prefaced, being that the mother is anxious and the child is thus projecting such anxiety, was correct, that the child would be expected to act out anxiously away from the mother as well. That is not, from the evidence of Mr Hawkins, the circumstance pertaining to X.
The report writer was asked whether in making her recommendations she had relied upon material other than the mother’s self-reporting of behaviours suggested to have been observed of the child. The Family Report writer indicated that she had. Ms W said that she had also considered research and literature on child attachment and development in framing the recommendations she had made which advocated a cessation of the equal time arrangement.
The report writer was then asked whether, if the Court ultimately did not accept the mother’s evidence as to the behaviours she suggests that she had observed, there would be any strong view then expressed by the report writer. The report writer indicated:
I would still be concerned. I would be concerned why these parents are in Court. That would have to be in the background of what I know. If the parents said they were happy with the equal care arrangement, they wouldn’t be here. There is nothing unusual in different behaviours being observed of a child in different contexts. If the child is comfortable and confident with a parent, they will show their upset and their joy to that parent.
Again, one is asked to infer from the report writer’s evidence that this explains the difference between suggested observations between households.
The report writer was asked whether there was any circumstance which would support the equal shared care arrangement working, if it were found to be not working or not working to optimum advantage for X at this time. The report writer indicated:
Yes. If the parents could freely and directly communicate, be able to co-parent, be flexible and respectful of each other. If the parents were able to communicate and to be sensitive to X’s needs.
It is suggested, certainly in the mother’s case, that none of those attributes are presently available.
When the report writer was asked what arrangements were suggested to be problematic at the moment and which might need address, it was suggested:
The changeovers are difficult. They would be better if they were school to school transitions. Time would be more meaningful if he can experience both of his parents in different contexts, such as school, weekends and holidays. Sometimes it can be difficult for the child with school transitions. They can feel clunky.
It was suggested by the report writer, in conclusion, that it might be better, whatever the arrangement were, being either equal time or something of primacy and lesser time with the other parent, that the child go back to the other parent on a Sunday night rather than straight to school from the other parent’s care.
When finally it was put to the report writer that there may be things that each of these parents could better do to support the other’s relationship with the child, a number of issues were raised by the report writer but most importantly, it was suggested:
That is simply not something these parents have been able to do. The relationship has not been improved by their involvement in various systems.
I take it from that a reference to the use of the contact service as well as the Court.
Mr C
On the second day of hearing, Mr C, Ms Kavan’s fiancé and partner was called.
It was suggested to Mr C that an incident had occurred between he and Mr Hawkins at Mr Hawkins’ place of work, being a (omitted) attached to a (omitted). The evidence would suggest that Mr C had been at the (omitted) with a number of work colleagues and that he had left the (omitted) proper to go next door to the (omitted) to buy cigarettes.
It was suggested to Mr C that he could have bought cigarettes in the (omitted). Mr C indicated there was only a machine in the (omitted) and he did not have change, and upon requesting change he had been directed by the (omitted) staff to go to the (omitted) to purchase cigarettes. It would appear from the evidence, and agreed between both Mr C and Mr Hawkins, that Mr C was not previously aware that Mr Hawkins was working at the (omitted).
On entering, there was some brief conversation between them. It was conceded by Mr C that he said something to Mr Hawkins to the effect of:
It’s good to see you’ve got a job. Good for you.
The only difference between the respective accounts is dispute as to whether that statement was made sarcastically or otherwise. It was suggested in the evidence of Mr C that he had then asked Mr Hawkins a question about returning a pair of designer brand jeans for X.
It is suggested by Mr C that while Mr Hawkins was then getting the cigarettes that Mr Hawkins had said something, whist his back was turned or mumbling or both, to the effect:
If your missus would pay me maintenance, it wouldn’t be an issue.
In any event, it is conceded by Mr C, as was suggested by Mr Hawkins in his evidence, that Mr C then said to him words to the effect:
Are you serious? Have you got a pair of nuts between those legs?
There is some dispute as to what transpired thereafter, but whether with others joining Mr Hawkins and Mr C in the (omitted) or otherwise, Mr C left and returned to the (omitted).
The only dispute between Mr C and Mr Hawkins ultimately with respect to the conversation is whether there had been any comment made by Mr Hawkins about maintenance. I will return to that in the evidence of Mr Hawkins.
Otherwise, it was put to Mr C that he sometimes spoke to Mr Hawkins in an angry and aggressive fashion. Mr C denied this. Mr C went on to indicate that when he first met Mr Hawkins that he had put out his hand to shake Mr Hawkins’ (but Mr Hawkins did not offer his) and had said to Mr Hawkins words to the effect:
We will have to catch up for a beer and get to know each other.
Mr C went on to indicate:
The next thing I know, we get a letter from his lawyers saying I’m intimidating him.
Mr C denied all propositions put to him regarding suggested intimidation or aggression by he towards Mr Hawkins, save for a concession that he had been aggressive towards Mr Hawkins whilst each had been playing soccer against each other and whilst on the sports field.
Mr C was asked of his view of his relationship with X. He suggested that he had an excellent relationship with X, that he was a happy-go-lucky child and that X also had a great relationship with his mother and with his two sisters. In that regard, it is to be noted that Mr C and Ms Kavan have two children of their relationship who reside with them full-time, being X’s younger siblings, although referred to at parts of the proceedings as being his “half-siblings”. That is a term that is suggested to have been used by X after returning from his father’s home and in speaking to both his mother and Mr C.
It was suggested to Mr C that X was a bit scared of him. Mr A answered emphatically and immediately, “No”,
It was suggested that X might find him a little intimidating. Mr C disagreed with that proposition.
It should be pointed out, at this point in time, that there is absolutely no evidence before the Court to suggest that there is any basis to the propositions put to Mr C that X is scared of him or that X has suggested to any person that he is scared, or has engaged in any behaviour that suggests he is scared of Mr C. Indeed, the evidence, particularly that in the Family Report, is entirely at odds with that and which suggests that X is quite close to Mr C with whom he has lived since he was about two and a half years of age and certainly before he was three.
Indeed, there are two hypotheses that might be taken there from. One being that there is simply no evidence to support it and thus I am bound to accept the evidence of Mr C that he has an excellent relationship with X and that X has no fear of him at all. Alternatively, if there is any basis to the proposition that there is or might be fear – albeit with a total absence of evidence before me making it difficult to maintain that proposition – then the proposition itself, it having been conceded by Counsel for the father that the child has never indicated to his father that he holds any fear or apprehension with respect to Mr C, would be supportive of that which was put by the family consultant being that X would only express such views to a parent with whom he felt emotionally close. Ergo, in such circumstances the proposition and concession in combination would suggest a lack of closeness between X and his father.
It was put to Mr C that the two young girls in their household found it difficult when X left each alternate week and that proposition was agreed with.
Mr C was asked whether X was difficult to settle when he returned home. Mr C indicated that he was difficult to settle for half a day to a day, possibly a couple of nights after he gets dropped home on a Friday evening. When Mr C was asked whether he considered that this unsettled behaviour might be because of the different structures in each household, Mr C agreed.
A number of other matters were put to Mr C which were not otherwise put to Ms Kavan and, accordingly, do not detract from Mr C’s evidence in any fashion.
It was suggested to Mr C that the behaviours which Ms Kavan is suggested to have observed of X, being bed-wetting, nightmares, angry outbursts and the like, are not matters that anyone else has observed. Mr C indicated that he had seen some of the behaviours, but not all, and that there were differences in how X dealt with his sisters when he returned home, such as saying:
You’re not my sister; you’re just my half-sister.
Mr C indicated a number of things that were said by X and sometimes were said with a tone that suggested that he was upset. I do not place any significant weight upon those matters, save to the extent that Mr C has clearly indicated that a number of the behaviours which are observed by Ms Kavan are also observed by him.
Matters were also put to Mr C in relation to those observed behaviours and it was suggested to him that he was in no position to comment. He conceded to an extent and said:
Well, to a degree, that’s true. He says a lot more to his mum. It’s something you need to see. It’s hard to explain. It’s someone’s emotions. The Fridays before he goes to his dad he’s just not his usual self. He gets upset, cries and says, ‘I’m going to miss you.’ He doesn’t want to go. I’m not saying he doesn’t love his dad, he does. It’s his emotional reaction to leaving.
To the extent that it is suggested that Mr C is somewhat callous, resentful of or antagonistic towards Mr Hawkins, that answer speaks volumes in opposition to the proposition. Mr C, whilst he quite clearly is a man who might be described as “a man’s man”, was able to express some significant insight into not only his emotions but X’s.
Mr Hawkins
The mother’s case being close attention was then turned to the evidence of Mr Hawkins and Ms J.
Mr Hawkins was cross-examined regarding a range of issues.
A brief examination-in-chief occurred before cross-examination. During this it was put to Mr Hawkins that he had recently, being only a week or so prior to the hearing, taken X to psychologist, a Ms D. It was suggested that a report had been prepared by Ms D which was then sought to be tendered. The report was objected to. The tender of the report at that point was rejected for reasons that I will explain shortly. The report was then marked for identification, but its tender was not renewed.
The tender of the report had been rejected on a number of bases, being:
a)The report did not involve both parents but purely an attendance by X upon the psychologist with Mr Hawkins and his partner, Ms J.
b)All information provided to the psychologist would appear to have been provided, save for a limited discourse with X himself, by Mr Hawkins.
c)It was suggested by Mr Hawkins that he had sought to engage the psychologist after he had read the Affidavit of Ms Kavan, presumably that filed in June, which raised concerns in relation to X being unsettled and that he had not previously been aware of those matters. Clearly they were matters referred to in the communication book earlier and which had been made available through Ms Kavan's Affidavit some months earlier.
The document that was sought to be tendered appeared, on its face, to be a reporting letter from the psychologist to the GP who had made the referral to the psychologist. Thus the documents, on its face, would appear to be a business record and admissible pursuant to section 69 of the Evidence Act. However, that would not prove its contents pursuant section 48 of the Evidence Act.
Issues were raised with Counsel for both parties as to the exclusion or limitation upon use of the report, having regard to sections 135 to 136 of the Evidence Act, and particularly noting that the reportage to the psychologist and thus the psychologist’s comments, limited as they were upon those matters, was self-serving.
It was also a process and a document that had, prior to its purported tender, never been disclosed to the mother either as to the process or the preparation or existence of the document. The consultation had been arranged and the document had clearly been prepared in contemplation of and with knowledge of the litigation, the document referring to an awareness of the litigation and a request for the provision of services with respect thereto.
For all of those reasons the tender was, at that point, rejected. It was indicated that the tender would be renewed but it was not.
The cross-examination of Mr Hawkins thus commenced with respect to those appointments. It was suggested to Mr Hawkins that he might have considered that arranging such appointments without any notice to, or without the consent of, Ms Kavan might be somewhat hypocritical in light of his complaints, throughout the communication book and his Affidavit material, that Ms Kavan had taken X to appointments, particularly with the child’s paediatrician, with little or no notice to him. Notwithstanding that criticism Mr Hawkins had been able to speak with the paediatrician and engage with him.
It was suggested that Ms Kavan might see those actions as inconsistent with his complaints with respect to her. Mr Hawkins conceded:
Yes, I can see that it’s not communicating. I probably should’ve let her know. I should’ve.
Mr Hawkins was asked what he thought of Ms Kavan as a parent to the child and whether his views of Ms Kavan as a parent were consistent with his taking the child to the psychologist without telling her. Mr Hawkins responded:
I made the appointment so I could clarify things for myself. She might’ve misconstrued why I was wanting to take him. I didn’t communicate it to her.
One can infer therefrom that Mr Hawkins was aware that Ms Kavan, in all probability, would have opposed such a step. Mr Hawkins conceded that Ms Kavan would, in all probability, have been made angry and have felt hurt by those actions.
It was put to Mr Hawkins whether he still said that he believed that he and Ms Kavan were working well together as parents in light of that and other issues and criticisms he had raised in his own material. Mr Hawkins indicated, again quite tellingly:
Our communication is quite poor at the moment. Previous to that we were communicating quite well. I wasn’t made aware of any of these behaviours she says X is having.
By reference to the cross-examination of Ms Kavan it would seem that the period when communication has been working quite well is now somewhat antique and certainly dating back to 2008.
A number of matters were put to Mr Hawkins regarding concerns and criticisms he had raised in his Affidavit material wherein Ms Kavan had attended and spent time with X on two occasions whilst X had been in Mr Hawkins’ care and Mr Hawkins had been playing soccer and X had been at the side of the soccer field, supervised by Mr Hawkins and/or by others. It was suggested that if Ms Kavan had wanted, on those occasions, to supervise X more closely than was being offered by Mr Hawkins whilst he was on the soccer field engaged in play or training, that all that her attendance really represented was a difference in parenting style. Mr Hawkins agreed that this was possibly so.
It was put that if it was really just a difference in parenting style, then really no one was “wrong”. There was a strong focus in the evidence of both parents, although more so Mr Hawkins, that when there were differences that one parent was right and one was wrong. The proposition put to Mr Hawkins was agreed with.
When it was then asked of Mr Hawkins why he would complain about it, he indicated, “She was just there to see if X was there.” When Mr Hawkins was asked whether he thus thought that Ms Kavan was interfering at that point in time, Mr Hawkins suggested that he felt she was. When he was asked how he felt that X might have been affected by such interference, Mr Hawkins indicated, “He was surprised.” It was put that he was pleasantly surprised, and Mr Hawkins agreed.
On the second occasion it was suggested that Ms Kavan had not only been at the sideline with X, but that she had left with X while she had been taking home one of X’s young baby sisters and had been away from the ground for 10 or 30 minutes during the entire period of which Mr Hawkins was playing soccer. When it was put to Mr Hawkins that he thought that Ms Kavan had been arrogant in that behaviour, he agreed. It was put to Mr Hawkins that, “This did not reflect on your view that day. You were simply annoyed.” Mr Hawkins indicated, “Yes, I was annoyed. I’ve never encroached on her time.” It was suggested to Mr Hawkins that he was emotionally affected by Ms Kavan’s actions on that day. He agreed.
It was suggested to Mr Hawkins that he had gone and sought advice from the police after this event, and he agreed. What had transpired was that Mr Hawkins had sought advice from the police as to what action he could take, or have the police take on his behalf, in the event that Ms Kavan engaged in similar behaviour in the future, that is, interacting with or supervising X at the side of the soccer field whilst Mr Hawkins was playing and removing the child for a short period of time.
Issue was also raised with Mr Hawkins regarding events that had occurred over the last two Christmases, being 2010 and 2011. The orders under which these parents operate provide for a separate regime of time at Christmas. That regime of time provides differently to the Friday to Friday week-about arrangement and so that each parent spends some short period of time from either Christmas Eve to Christmas Day, or Christmas Day to Boxing Day with X. It would seem that in each of 2010 and 2011 this had created some difficulty between the parents and, principally, as Christmas had fallen in or had immediately followed a week when X was in the care of his father. Certainly the answers given with respect to each of those periods, without dismantling it and reciting it in full, would suggest some inflexibility by Mr Hawkins with respect to those arrangements, focused upon adherence to the orders, both verbally communicated and through the communication book, rather than a focus upon the child spending a consistent period with each parent.
When Mr Hawkins was asked why he felt it was necessary to use a communication book, Mr Hawkins indicated, “It’s my only avenue at this stage to communicate with Ms Kavan.” I take that as an admission against interest that communication, already conceded as poor at this time, is simply not effective. When it was indicated that it had been suggested that the communication book and, indeed, use of the contact centre might be abandoned, Mr Hawkins indicated that he would be open to that idea, but for the present was content with its use.
Issues with respect to health were raised with Mr Hawkins. It was suggested to him that Ms Kavan had an almost encyclopaedic knowledge of health issues relating to X, particularly based on her university qualifications in (omitted). Mr Hawkins agreed with this. It was suggested that Ms Kavan, indeed, had some degree of special skill in relation to X’s health needs, which was again agreed.
A number of propositions were then put to Mr Hawkins, particularly regarding matters that he had raised with the paediatrician, regarding the complementary medicine practices which Ms Kavan had sought to engage in with respect to X and with respect to the dietary matters to which I have already referred.
Mr Hawkins indicated that, notwithstanding the concessions made by him, he still had some concerns as to the appropriateness of those behaviours, and indicated, “She may have thought they were appropriate. I wanted to check.” What was clear from that passage of cross-examination is, as had been observed by the report writer, that these parents simply do not trust each other.
The dietary diary was specifically addressed. Mr Hawkins conceded that he had read the entry in the communication book wherein Ms Kavan had asked Mr Hawkins to keep a record of dietary intake for the child. When asked why he had not responded to nor followed this request, Mr Hawkins indicated “Because I was satisfied with his diet”.
It was suggested, “So you thought the dietary book was a way of checking on the diet that you gave him, and not to be able to monitor his allergies.” Mr Hawkins conceded that that was so. It was suggested that this represented yet another communication breakdown and Mr Hawkins conceded this.
When it was asked of Mr Hawkins whether he had responded to the requests made by Ms Kavan with respect to dietary intake and the like and is suggested that Ms Kavan was particularly interested in being able to exclude such food intolerances, Mr Hawkins’ response was simply, “I said to her, ‘He’s shown no intolerance at my house.’” That would appear to Mr Hawkins to have been the end of the issue.
It was suggested that he had not cooperated with that suggested by Ms Kavan because he felt that he was being criticised by her. Mr Hawkins conceded, “Perhaps.” When he was asked whether he still thought that now, he said, “Yes, I do.”
When it was asked whether he was alarmed in thinking that Ms Kavan might be suggesting he was parenting the child in the wrong way, he indicated that that was not so. However, his responses suggested that there was both a significant difference in how each of these parents deal with and treat the child’s health and other needs, partially reflected by comments made by X to the Family Report writer with respect to his intake of sweets and lollies, as well as other concerns in relation to discipline and the like.
A particular issue that arose towards the conclusion of cross-examination related to requests for the signature of a passport application for X. It became apparent from the evidence that Ms Kavan had been invited to attend the wedding of a very close friend in (omitted) and that she had wished to travel during her one-week period with X and so as to attend the wedding. A request had been made some months prior for the signature of the passport. However, the passport application had not been signed and returned by Mr Hawkins. Thus Ms Kavan nor X attended the wedding.
It was put to Mr Hawkins that he had not signed the passport application for the travel to (omitted), notwithstanding three months notice, and he agreed. It was put to him that he had still not signed it, some three years later, and he agreed. Mr Hawkins conceded that he had no problem, as such, with the trip and when asked why he had not signed the passport application so as to allow it to occur he indicated, “It was the way it was done.”
There would not appear to be anything from the evidence before the Court, including not only the testimony of the parties but that relating to it in letters tendered as exhibits and the communication book, to suggest anything was done other than a simple request with an explanation as to why it was made.
When it was suggested to Mr Hawkins that he knew that Ms Kavan would be very annoyed and hurt by his refusal to sign it, and thus with her inability to attend, he indicated that this was so.
When, at the very conclusion of his cross-examination, Mr Hawkins was asked why he had gone to the police in relation to the events that had occurred at soccer, he had responded that he wanted to know where he stood and what they could do if such events happened again. They were clearly events of some real significance to Mr Hawkins although objectively trivial. That was consistent with that put by Mr Hawkins’ Counsel that “this is a case about small things”.
Ms J
Ms J was cross-examined briefly. Ms J’s evidence was entirely consistent with that of Mr Hawkins.
Ms J was not cross-examined at length, and I accept that her evidence is truthful.
The Family Report and Child Dispute Conference memorandum
The submissions put by each of the parties spoke to the evidence given and raised a number of issues which I will deal with separately and specifically hereafter. Before doing so, however, I need to turn to and address the Family Report of Ms W.
In the first Child Dispute Conference memorandum, Ms W had indicated, under the heading Family Violence/Risk Factors, “acrimonious parental relationship”.
Ms W’s subsequent Family Report was brief but erudite. I will shortly comment more specifically upon the report as it would represent, in my mind, an excellent example of how a report for the Court should be written, comprising, as it does, some ten pages but which clearly and specifically do everything that one would expect or require of such a report.
Paragraph 5 of the report and its subparagraphs address the term of reference:
…The capacity of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
It commences at paragraph 5.1 with:
Ms Kavan and Mr Hawkins have an uncommunicative and mistrustful relationship. The quality of their relationship is a significant factor to be addressed in considering the best arrangements for X. At the time of making the consent orders for a shared arrangement, being some few months following their separation, there was likely to have been an expectation by both parents and there [sic] legal teams that their relationship would improve to the extent that they would be able to co-operate in sharing X’s care - unfortunately this has not occurred.
At paragraph 5.2 it was suggested:
The parents’ poor relationship has negative implications for their ability to facilitate and encourage X’s relationship with the other parent. Even if the parents do not overtly interfere with X’s relationship with the other parent, the covert mistrust and dislike of each other is discernible to a young child who relies on his parents to make sense of his world and measure his safety and risks.
At paragraph 5.3, and dealing specifically with communication, the report indicates:
Mr Hawkins maintains that he has attempted to communicate with X’s mother and, more recently with her partner. He contends that his efforts have gone unheeded by the mother and her partner through no fault of his. The mother considers the father as manipulative and uncompromising in his views regarding X’s welfare. She alleges that Mr Hawkins prioritises his own needs above X’s.
At paragraph 5.4 it indicates:
The current changeovers of X occur at a professional contact service and the parents communicate regarding X’s needs and progress via a “communication book”.
Reference is made by Ms Kavan to Mr Hawkins’s partner, Ms J, referred to simply as Ms J, and her children (Ms J having twin children who live in her care predominantly). It was assumed by Ms Kavan that the reference was to a girlfriend of Mr Hawkins, but no further disclosure of Ms J occurred at or prior to the report interviews.
At paragraph 5.7, the following is reported:
When the scenario was presented to Ms Kavan [being a scenario as to whom X would turn to if in need of parental support] and she was asked which parent she would predict X would go to for comfort she said that X would “come to me. He doesn’t run to Mr Hawkins like he does to me.” She says of her relationship with X “We’ve always been close - strongly close. He’s always been a mummy’s boy. I can relate to him. We have similar temperaments.”
At paragraph 5.8, the following is reported:
Ms Kavan is adamant that X manifests behaviours that suggests a lack of emotional security and an instability in the current living arrangement. She gives examples of nightmares and bedwetting. She says that when he comes to her house he is “restless”, “really angry - withdrawn, hits me, ignores me”. She says there have been occasions when he has “stuttered”. She was distressed to find that he had taken a “knife” [as it subsequently transpires, a toy knife] to bed when he had been with the baby sitter and was frightened of birds. She says “He lives in two different worlds”. She said that X said to her “I don’t have a home.”
At paragraph 5.10, the following is reported:
Mr C also considers that X is insecure and emotionally unstable in the present shared arrangement. He says that it is common and most natural for children to primarily live with their mother because mother’s are able to provide children with a good routine and more nurturing than fathers.
I make clear at this point that:
a)Clearly Mr C has provided some degree of corroboration for that which Ms Kavan opines, both through that reported by Ms W and through his responses in cross-examination; and
b)I do not accept the proposition, raised in the latter portion of the reportage of Mr C, which would appear to reflect something in the nature of a motherhood principle, as has been consistently rejected by the Full Court since 1976.
At paragraph 5.11 under the heading “Terms of Reference: (b. continued) The Nature of the child’s relationship with any other significant adult or sibling”, the following is reported:
Mr C describes his relationship with X - “It’s a good relationship. I see him like he is my own. I teach him as much as possible”.
I take that to be a reference to teaching him in the same terms and in the same fashion as the two siblings of which Mr C is the biological father. It continues:
There was no suggestions from either of X’s parents that his relationship with Mr C was anything other than positive.
During submissions closing the case, it was suggested by Counsel for Mr Hawkins that whilst that concession had been made at the time of Family Report interviews, some 10 months prior to the hearing, that it was only after Mr Hawkins became aware of the suggested behaviours and concerns held by Ms Kavan that he reviewed the position to be less than committed or positive that Mr C and X did, indeed, enjoy a good relationship.
There is a circularity in that logic which suggests that if the behaviours are observed, (and Mr Hawkins does not concede that they are), that they arise from something other than parental conflict or the equal time arrangement, and thus hypothesises that conflict with or fear or concern with respect to Mr C must be the most likely of various possible hypotheses. There is simply no evidence to support such a position.
X’s relationship with his two siblings, being his sisters, the children of Ms Kavan and Mr C, is dealt with in paragraph 5.13 in the following terms:
Relationships with siblings are important for children’s development and remain important relationships right through the lifespan. In addition research has shown that sibling relationship can mediate the negative affects of parental separation on children (Kaplan et al 1993).
It is to be observed, as was addressed in submissions in closing Mr Hawkins’ case, that no comment, observation or assessment is made of X’s relationship with either Ms J or her twin children. That is because Ms J was not disclosed by Mr Hawkins as a partner or significant person at the time of the report. Further, no application was made for adjournment of the proceedings to enable such an assessment to occur, nor was any application made for an updated report to be prepared. That was so at the listing in June 2012 (when the matter was not reached) and at the eventual hearing November, 2012.
The report then continues, in paragraph 6, where the child’s relationships and views are explored. They are explored, rather than through direct interview and questioning of X, through the application of psychometric testing and, in particular, the Bene-Anthony Family Relations Test.
It is suggested at paragraph 6.3 that when X was asked to tell the consultant about three wishes that he indicated as follows:
That I were not in my family. That I not go to my step Dad or Mum’s because I could have lollies every day; That I wish that my sisters weren’t too bossy; That I wish that my house was made of lollies so that I could eat it - even the toilet too.
The first portion of that expression of views by X, in direct response to the consultant’s questioning, is highly concerning and entirely consistent with that suggested by Ms Kavan as having been said by X to her. X is, again, expressing a real desire that his family circumstances were different.
The following paragraph 6.6 to 6.8 deal with X’s responses to the psychometric testing referred to.
Paragraph 6.10 suggests that X was observed briefly with each of his parents and:
There was nothing extraordinary about these observations. X related in a warm and comfortable manner with both his parents. In both his parents company he played imaginative games with toys involving cars and helicopters and rescue missions. The parent styles of relating were different. His mother followed his lead with the play and his father was more prescriptive about the play.
Under the heading “Term of Reference (d) the likely effect on the child of the mother’s application to change his usual care regime…”, the Family Report writer commenced at paragraph 6.11:
Children between the ages of 0 to 4 years of age are at their most emotionally and physically vulnerable. During this stage in children develop attachment relationships they develop a primary attachment relationship by experiencing an adult as being consistently available to them. It stands to reason therefore that the parent who has been the majority carer of the child is most likely to be the primary attachment figure.
The period of separation between these parents, prior to the commencement of the equal shared parenting arrangement in March of 2008, was brief. Prior to the separation of the parents, there is no significant issue that X’s care was predominantly provided by Ms Kavan. However, that is not an issue that has been specifically commented upon by the report writer.
At paragraph 6.12 it is suggested:
Young children particularly require a safe and secure parent base in which to develop normally. In the event the children do not experience this security their development in all aspects - social, emotional and intellectual is less than optimal. X’s mother considers that X’s behaviour indicates that he is not emotionally secure because he lives between two parents who remain in conflict. Research has shown that equal shared care is not recommended for young children. McIntosh et al, (2010) found looking at a national random sample that “Regardless of socio-economic background, parenting or inter-parental cooperation, shared overnight care of children under four years of age had an independent and deleterious impact...
At paragraph 6.13, this was again taken up as follows:
X commenced a shared arrangement between his two parents not long after his 3rd birthday [indeed, it was not long after his second birthday]. The mother considers X to be emotionally insecure and the examples that she gives elucidate this. It is unsurprising that X manifests such behaviours [which would appear to suggest by the family consultant, an acceptance of the accuracy of such reportage by Ms Kavan] when considering his young age when he commenced an equal shared arrangement of the nature of the parent’s relationship at that time and continuing to date.
I, again, do not accept that submission. The above material was clearly not before the report writer, but again, that is not their role. The orders for trial and preparation therefore envisaged that the report would be prepared and released before the parties filed their evidence. Thus if the criticism were to have been raised it should have been raised at the time trial directions were made. Trial directions such as those made are common practice. Indeed, many report writers, even if material has been filed, do not consider it but rely upon the answers given to them during interview rather than written documentation.
To the extent that the report writer has not been asked to comment upon nor given the parties’ material to review and to then be questioned as to whether it affects her opinion, that is because no attempt has been made to do so. Accordingly, I do not accept the criticism. Ms W attended for cross examination and, whilst interposed, anything raised in any Affidavit could have been put to her. It was not.
To the extent that Ms Kavan has raised material with Ms W which she had not prior to her disclosure to Ms W raised with the father I do not accept that this would, in any fashion, undermine the opinions expressed by Ms W. In any event Ms Kavan did raise such matters with the father.
It is then submitted that Ms W, during cross-examination, accepted that if the mother’s assertions regarding X’s behaviours were not true or found to be the result of a different causation that her recommendations may not stand or be appropriate. I accept Ms Kavan’s evidence as credible. The proposition was put to Ms Kavan that her assertions were incorrect and she denied this. There is no other evidence to suggest that her assertions are incorrect and thus based on my assessment of her credibility the assertions are found to be true.
I am not satisfied that there is any evidence that would suggest any other causation for X’s behaviours other than this child’s reaction to the time arrangement and/or dysfunctional parental communication.
It is suggested that Ms W accepted under cross-examination that appropriate conflict resolution and post separation programs may assist the parties in parenting X more cooperatively and that this may remediate or resolve much of the level of conflict described by the mother. The difficulty is that the conflict or absence of communication, as there is no active physicality to the conflict, is accepted also by Mr Hawkins.
Further, whilst it is accepted that there may be some improvement, as I have already indicated, it is not guaranteed. No specific proposal is put as to what that intervention might be and no timeframe opined. I am not satisfied that it would be appropriate, in those circumstances, to forestall the final determination of the proceedings or perhaps more appropriately, in light of the submission, to determine the proceedings on a final basis in the hope and expectation that some undisclosed intervention may assist in ameliorating the problems between the parents and thus, through those issues having been addressed, cure the deficits in the present arrangement which impact upon the child.
It is submitted that opinions advanced in Ms W’s report were constructed only on the self report of the parties and Mr C and that her contentions and recommendations have only limited value as a consequence of the way the evidence has flowed.
The evidence has flowed so that I accept Ms Kavan’s evidence as to the behaviour she has observed and I accept the opinions expressed by the report writer as to the consistency of those behaviours with that which might be expected in light of the research which has been canvassed, not only generally, but specifically with respect to the arrangements for this child. Thus I do not accept the submission.
It is submitted that Ms W met Mr C only briefly and she was not aware of his conviction for criminal intimidation nor fully appraised of Mr C’s conduct towards the father.
In that regard, I am not satisfied, as I made clear during submissions, that the past criminal conviction for intimidation which Mr C concedes is a matter of any real relevance nor does it assist in formulating any finding by the Court that Mr C has intimidated Mr Hawkins. There is also no evidence whatsoever, or no evidence other than the denial of the assertion when put, that Mr C has intimidated or in any way caused fear or apprehension in the child. The conduct between Mr C and Mr Hawkins would appear to be, to some extent, depending on which version of events is found and I have made a finding only as regards to the (omitted) incident, to involve each giving as good as they get and each acting immaturely.
Accordingly, I am not satisfied that this circumstance would or could impact any reliance upon Ms W’s opinions. In any event, those matters were not put to Ms W when they could have been.
It is suggested that Ms W accepted under cross-examination that she did not turn her mind to any alternative possibility to explain the behaviours described by the mother. Indeed, it was put to Ms W that the behaviours might be taken, hypothetically, to be found not to exist.
Propositions were put to Ms W as to other alternative possibilities and she conceded other factors might be at play. However, there is no evidence to suggest that they are. Thus it is left as a hypothetical consideration for the Court and, indeed, for Ms W, as to whether other factors could be at play. However, Ms W’s evidence is clear that she is of the view that the arrangement for the child’s time with each parent and the absence of parental alliance and healthy communication and cooperation between them is the cause.
It is suggested that Ms W’s report was authored before the father and Ms J’s relationship crystallised into a domestic relationship and thus does not give proper consideration to X’s relationship now established with said step-siblings and that this was acknowledged by Ms W. That is, indeed, so. However, Ms Kavan referred to the relationship, whether in its infancy or otherwise, at the time of the report interviews.
Mr Hawkins did not seek to disclose it if it existed at the time whether it was a residential relationship or otherwise. No step has been taken to cause an updated report to be prepared and no application made for same notwithstanding the adjournment after the matter was marked “not reached”. There was clearly more than adequate time for such application to be made.
Accordingly, I do not accept that criticism. In any event, I am satisfied and accept that the relationship between X, Ms J and her children is significant and important to X.
Finally, it is submitted with reference to Ms W’s cross-examination particularly with respect to paragraphs 5.6 and 5.7 of her report (wherein she indicated that X may be better attached to the mother) that her opinion cannot withstand objective critique.
I am not satisfied, again, that this is so. Ms W has given a clear, concise and reasoned explanation for the conclusions she has drawn and these have been based not only upon the mother’s reporting. It is suggested that Ms W has expressed that opinion purely upon Ms Kavan having indicated her view that X is closer to her and would come to her rather than his father if he were, for instance, hurt.
However, it is also based upon a number of other factors and particularly those which flow from the balance of the report regarding the child’s suggested emotional closeness to the mother and psychometric testing.
Accordingly, I do not accept those criticisms of Ms W’s reportage and, to that extent, I continue to accept her evidence and opinion as regards to the beneficial impact upon X of a change being effected in his care arrangements.
Practical difficulty and expense
There is no physical practical difficulty as these parties both live within relative proximity to each other.
The difficulties that have arisen have been created by the parties.
It is a most extraordinary situation whereby parties have entered into consent orders providing for equal shared care of a child of some two years and three or four months which see them:
a)communicating with each other through a communication book rather than something more fulsome and appropriate; and
b)affecting all changeovers through a supervised contact service (and, at times, outside a Police station).
Each of the above circumstances contra-indicated the likely benefit to the child of the shared care arrangement and were and are highly suggestive of a moribund and dysfunctional communication and capacity to cooperate between the parents.
Capacity of each of the parents and other persons to provide for the child’s needs, including emotional and intellectual needs
These parties are on an entirely equal footing as regards their parenting capacity with the one exception being that opined by Ms W as to the suggested emotional closeness between the child and his mother.
Maturity, sex, lifestyle and background to the child.
The child is seven years of age or very nearly so. This child has lived in the shared care arrangement from the age of a little over two years. That would not appear, based on the totality of evidence, accepting Ms Kavan’s observations of the child’s behaviours and reactions and the opinions expressed by Ms W with respect thereto, to have served his needs.
Change is called for.
The Court must, if it is acting in accordance with section 60CA and 65AA, take such action.
Aboriginal or Torres Strait Islander
It is not suggested that the child is from an Aboriginal or Torres Strait Islander background.
The attitude to the child and responsibilities of parenthood demonstrated by each parent
I have been loathe to be critical of either of these parents as they are both, within the Court’s experience, excellent and exceptional parents. They are both capable of meeting this child’s needs save to the extent that each has failed to recognise that the arrangement that has been in place between them (and which is now, for two-thirds of its existence, the subject of challenge before this Court) is not meeting X’s needs. That principally arises from the inability of these parents to cooperate and build a parental alliance.
To that extent I accept that which is opined by Ms W that the arrangement, both generally and specifically, perhaps better meets and reflects the needs of the parents, whether both or one, than the child.
That is the only criticism really that is raised other than the outstanding criticisms discussed at length above and which I do not repeat at this point and regarding communication between these parents.
Family violence
There is no suggestion of any.
Family violence orders
There are, to the great credit of these parties, none and nor have there ever been any.
Whether it is preferable to make orders that would least likely lead to the institution of future proceedings
This factor alone, if nothing else, counts against the approach urged by Mr Hawkins to leave the equal shared care arrangement in place and to make orders to seek to assist the parents develop better cooperation and parenting alliance skills.
The outcome of community based therapies are uncertain, the timeframe is unknown and the benefit to the child, who must then continue an arrangement which I am satisfied is not presently meeting his needs, would obviate against it.
Other facts or circumstances
I turn thereto to incorporate herein section 65DAA(5).
The parents live within close proximity to each other. However, section 65DAA (5) does not deal with reasonable practicality only in a physical and logistical context. It deals with and codifies that which has been referred to by Ms W in her report as the indicators one would expect to see if an equal shared care arrangement were to operate successfully as regards to the child’s welfare and to meet the child’s best interests and needs.
In particular, I must consider the parents’ current and future capacity to implement an arrangement for either equal time or substantial and significant time.
I accept that these parents are capable of meeting any arrangement that might be put into place, whether by agreement or Court order. They are excellent parents.
I must also consider the current and future capacity of these parents to communicate with each other and resolve difficulties.
These parents write a great deal in a communication book, send text messages and forward to the other information, requests, comments and suggestions.
However, they do not communicate. They simply share information. They do not resolve difficulties. In fact, difficulties continue to arise with respect to matters such as the dietary observance and with a view to seeking to ascertain whether the child does, in fact, have allergies. As a consequence of Mr Hawkins’ interpretation of Ms Kavan’s fairly clear request, the child does not have the benefit of that exclusive process. Thus, the parents’ capacity to resolve difficulties is almost non-existent, notwithstanding that, on first blush, these are not parents in conflict.
One must take a broader view of conflict.
Conflict, if it is seen as being an active manifestation of dispute, would be seen differently to the conflict which arises in this case which is simply the absence of cooperation or resolution.
These parents have different parenting styles which could, and in all probability would, if they were in an intact family, be complimentary. However, when they are apart, distrustful and non-communicative, it simply means, as has already been observed and opined by the title of the book by Dr P, to have produced a child who lives divided lives rather than enjoying equal shared care.
The impact of an arrangement on the child as regards the present arrangement is opined by Ms W (and I accept her opinion) to be disadvantageous to X.
Thus change is warranted and compelled.
Conclusion
That then returns to the question which I had raised prior to turning to the legislative pathway as to what time arrangement might best then meet this little boy’s needs.
The evidence given by Ms W would suggest that a weekly arrangement would be ideal, but with the caveats of seeking, as far as possible, to ensure that these parties change their styles of communication, change the changeover arrangements so that they do not necessarily need to come into direct contact with each other but move away from the artificial circumstances of police stations and contact centres, but as far as possible, have school to school changeovers.
I am conscious of Ms W’s recommendation that there may be some utility in time concluding on a Sunday rather than the school morning on Monday and this may represent some greater stability and consistency for X.
I am satisfied that the child is used to weekly transitions between his parents’ households and that should continue.
I am also satisfied that the quantum and structure of time is that which need change rather than the weekly transitions.
I accept that the absence of a parental alliance between these parents is the fundamental problem which creates the difficulties between them, as well as the profound inappropriateness, albeit with hindsight, of the equal time arrangement for this little boy having regard to his bonding and attachment and developmental needs at the time that it came into being and the fact that the operation of that regime has perhaps now eroded the capacity or potential benefit of that arrangement at this time.
Put bluntly, if a better and more appropriate arrangement had been put into place in March of 2008, having regard to the child’s age, developmental needs and capacity of these parents to cooperate, when X was two, then an equal time arrangement might now well be indicated. If prior arrangements had worked successfully this little boy would have developed more than abundant bonding and attachment to each of his parents in an appropriate fashion and without having caused him the distress which I accept from Ms Kavan’s evidence it has.
Mr Hawkins should have the opportunity to be involved in this little boy’s life in as many ways as possible and thus I am satisfied that, whilst the evidence indicates and compels a move from the equal time arrangement, that a substantial and significant time arrangement, as referred to in section 65DAA(3), can and should apply. That is an arrangement which, by definition, enables each parent to spend time with X that includes week days, school holidays, weekends, time that allows the parent to be involved in the child’s daily routines and occasions and events significant to the child as well as the child spending time with the parent that is of significance to the parent.
To that extent I am also satisfied that there should be regular and frequent, at least weekly, time. The Family Consultant suggests, as I have indicated, school collection as far as practicable, but opines that a Sunday evening return from alternate weekend time might be preferable. I am satisfied that this should be so.
Having regard to all of those matters I would propose that alternate weekend time occur, but rather than as is proposed by Ms Kavan from Friday to Sunday that it would be from after school Thursday until Sunday evening.
I would also propose, as Ms Kavan would appear to accept in the minute proposed in her case outline, that time would occur in the intervening week from Thursday to Friday. That provides some real consistency, stability, symmetry and predictability. Thus, X will spend every Thursday night with his father irrespective of which week or which part of the cycle they are in. The only non-school changeovers that would then occur would be on Sunday evening and during school holidays.
I am satisfied that those changeovers should, as indeed they should have since March of 2008, occur by each of these parents going to the home of the other. That will provide X with some reassurance that he is going to be returning to the home where he is meant to be and that each parent supports that proposition.
I propose to end the arrangement for changeovers at the supervised contact centre immediately. It should never have been occurring there. Indeed, I can not think of one single factor that would have sent a greater or stronger message to this child that there was dysfunction in the cooperation and communication between his parents than that arrangement as he would not have tangible evidence of, and hopefully would not be cognisant of, his parents’ use of the communication book.
I make clear that is no criticism whatsoever of the supervised contact service. They provide excellent and much needed services to the community. However, these are not parents who ever needed that service and why they felt compelled to use it is a mystery not explained by the evidence. It is a waste of the centre’s resources and it has entrenched and compounded, in tangible fashion for X, the lack of communication between his parents.
It would, no doubt, have created for him a perception, particularly as he has grown older and more cognisant of same, of the dysfunction between his parents. Clearly on a weekly basis he has had to attend at a supervised contact centre to pass between his parents’ different households. Until quite recently that has involved his parents not even coming into contact with each other.
I propose to make orders pursuant to section 13C. However, they are not designed to aid the parties towards maintaining or returning to the equal shared care arrangement. If that results between them then so be it.
There would be real benefit for this child if the difficulties expanded upon at length in these reasons could be addressed and so that an equal shared arrangement between his parents, who are both excellent, capable and competent parents and people, could resume. However, at this time I am not satisfied it is appropriate.
The assistance I propose to order for these parties by reference to section 13C is to assist them in working on their communication rather than assistance aimed at supporting and encouraging and maintaining an arrangement which, at this point in time in X’s life, I am not satisfied is meeting his needs and has not met his needs for some little time.
For all of those reasons I am satisfied that orders of that broad framework are necessary and desirable and will best meet this little boy’s interests.
Therefore, I make orders as set out at the commencement of this Judgment.
I certify that the preceding three hundred and seventy-five (375) paragraphs are a true copy of the reasons for judgment of Harman FM
Associate:
Date: 20 December 2012
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