LANDON & ROGERS
[2014] FCCA 666
•4 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LANDON & ROGERS | [2014] FCCA 666 |
| Catchwords: FAMILY LAW – Children’s issues – application to vary long term equal shared parenting time order – application refused. |
| Legislation: Family Law Act 1975 (as amended), ss.60CC, 61B, 61DA, 65DAA, 65DAC, 65DAE |
| Applicant: | MS LANDON |
| Respondent: | MR ROGERS |
| File Number: | ADC 1536 of 2007 |
| Judgment of: | Judge Mead |
| Hearing dates: | 6,7, 8 February 2013 14 February 2013 |
| Date of Last Submission: | 9 May 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 4 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cocks |
| Solicitors for the Applicant: | Barr Lawyers |
| Counsel for the Respondent: | In person |
| Solicitors for the Respondent: | Not applicable |
| Counsel for the Independent Children's Lawyer: | Mrs West |
| Solicitors for the Independent Children's Lawyer: | Mr Kent |
ORDERS
That all previous orders made herein be discharged.
That the parties have equal shared parental responsibility for the child X born (omitted) 2003.
That the said child live with the father from the conclusion of school on Friday 11 April 2014 until the conclusion of school on Friday 18 April 2014 and each alternate week thereafter between the same times.
That the said child live with the mother from the conclusion of school on Friday 4 April 2014 to the conclusion of school on Friday 11 April 2014 and each alternate week thereafter between the same times.
That during school term time all handovers occur by way of the parent into whose care X is going for the following week collecting X from school at the end of the relevant school day and handovers that do not occur during school term time occur between the parties only at the (omitted) Police Station.
That the parties be restrained and injunctions are hereby granted restraining each of them from:
(a)Taking the child X out of the State of South Australia without the knowledge and consent of the other party,
(b)Consuming non-prescription drugs for a period of 24 hours prior to and during any period of time X is to spend with them.
That the parties keep each other informed of X’s residential address at all times.
That the parties communicate to one another any illness suffered by X and keep one another informed in relation to X’s general state of health.
That all extant applications be otherwise dismissed.
Liberty to speak to the terms of paragraphs 3 and 4 of this order ONLY to the extent of correcting the weekly cycle dates contained therein and NOTING the court’s intention that handovers now are to occur on Fridays.
IT IS NOTED that publication of this judgment under the pseudonym Landon & Rogers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1536 of 2007
| MS LANDON |
Applicant
And
| MR ROGERS |
Respondent
REASONS FOR JUDGMENT
Background
Ms Landon and Mr Rogers are unable to agree as to ongoing parenting arrangements for X born (omitted) 2003.
The parties were married in Adelaide on (omitted) 2001. They separated on 10 October 2005 and the only child of the marriage was X. X was aged approximately two and a half years old at the time of separation.
In 2005 the parties commenced litigation with respect to parenting issues in proceedings ADF 1594 of 2005. On 9 October 2006 final orders were made with respect to children’s issues that provided for X to live with each of her parents on a week about basis. At the time the order was made X was aged three and a half years.
In May 2007 the father applied for an order for settlement of property and those proceedings were finalised by the making of a consent final order for settlement of property on 4 August 2008.
By way of application filed 8 July 2011, the applicant mother sought a final order discharging the parenting order of 9 October 2006. She sought orders for sole parental responsibility and for X to live with her and spend time with the father as agreed subject to guidance by X’s treating psychologist or other appropriate health professional or as ordered by the court.
The mother also sought that the father be restrained from removing X from the State of South Australia without her knowledge and consent, from denigrating her to or in the presence of X or allowing anyone else to do so and from consuming non prescription drugs or medicine for a period of 24 hours prior to and during any time X spent with him. The last order to which I have referred was contained in paragraph 6 of the consent order of 9 October 2006.
It was the mother’s case, as deposed to in her affidavit of 8 July 2011 that X’s behaviour had deteriorated significantly over recent years as a result of the impact on X of the equal shared time parenting arrangements. The mother deposed to X’s behavioural difficulties at school resulting in suspensions during Reception and in Year One and following, and to having worked closely with Ms A, a psychologist, with respect to X’s behavioural issues. She deposed to X making statements about being sad, wanting to hurt herself, kill herself, stab herself with a knife and to being scared of her father. She deposed to X being concerned about her father lying to her.
She deposed also to finding it virtually impossible to communicate in any meaningful way whatsoever with the father who she described as “aggressive, manipulative and controlling” in paragraph 19 of her affidavit filed 8 July 2011.
The father responded seeking that the mother’s application be dismissed and that the order of 9 October 2006 be varied only to the extent of handovers occurring on Fridays rather than Thursdays.
At the time of trial X had been living in an equal shared parenting arrangement since she was two and a half years old. This arrangement was put in place by agreement between the parties upon their separation in October of 2005.
The mother’s application was first returnable on 15 August 2011. An order was made at that hearing for the parties to attend at a meeting with a Family Consultant pursuant to section 11F of the Family Law Act 1975 (as amended) (“The Act”). The memorandum from that meeting confirmed the very significant communication difficulties between the parties. It recommended the appointment of an Independent Children’s Lawyer.
The Family Consultant referred to Mr Rogers’ presentation as being concerning, with him consistently presenting as agitated and somewhat driven. He noted in his memorandum that “his impulse control has to be questioned.” I specifically refer to those comments in the memorandum as they would accurately describe the presentation of Mr Rogers throughout these proceedings.
Mr Kent from the Legal Services Commission was appointed as the Independent Children’s Lawyer.
By the time these proceedings were instituted, X had been attending upon Ms A, psychologist, in relation to behavioural issues for some considerable time. This course had been agreed on between the parties without the need for any court involvement. There was however a dispute about X’s ongoing involvement with Ms A at the time the matter came before the court.
On 19 December 2011 an order was made for the Independent Children’s Lawyer to obtain a family assessment report from Dr C. The matter was initially listed for hearing on 23 May 2012. There was a delay in Dr C preparing the report and the first trial date was vacated.
On 23 May 2012 following the receipt of Dr C’s report, an order was made that the parties and X attend upon Ms A or such other psychologist as nominated by the Independent Children’s Lawyer for the purpose of continuing X’s counselling as well as counselling the parents with particular attention to difficulties in co-parenting and the possible impact of those difficulties on X at that time and in the future.
The order directed the counselling to encompass consideration of consistent parent practices and respectful and effective communication between the parents. A review report from Dr C was also ordered on that occasion, with a request that Dr C obtain feedback from Ms A or other relevant therapist concerning the progress of X and the parties as well as X’s progress at school. A further report was ordered to be filed by 31 October 2012. The matter was then listed again for trial on 6 February 2013 and commenced on that day.
Both parties gave evidence by way of trial affidavits and were cross examined. The mother’s husband Mr F gave evidence by way of affidavit and was cross examined. Ms L the school wellbeing officer at (omitted) School was subpoenaed to give evidence by the applicant mother and was cross examined by counsel for the Independent Children’s Lawyer and the father. Mr M, the assistant Principal at (omitted) School to the end of 2012, was also subpoenaed to give evidence by the mother and cross examined by the Independent Children’s Lawyer and the father. Dr C, who had provided the independent expert reports, was called as a witness by the court to enable counsel for the Independent Children’s Lawyer as well as the father and the mother’s counsel to cross examine him.
Parties evidence
This is not a matter where I consider it necessary for the purposes of judgment to carefully and painstakingly consider and dissect all of the evidence given by each of the parties and their witnesses at trial. I acknowledge that that is an unusual approach as such a careful consideration is usually the basis of the reasoning process required to make the findings necessary to come to a decision and make the appropriate orders arising from that reasoning.
I take that approach in circumstances where the mother’s case for a change of X’s care arrangements was essentially based on her belief that X’s best interests would be served by significantly reducing her exposure to what the mother considers to be the father’s totally inappropriate level and style of communication with her (the mother) and with other people (such as school officers and teachers) closely involved in X’s development, such that X was confused by his behaviour and approach to issues which resulted in psychological stress and behavioural difficulties.
It was her case that if X was primarily in her care, she and her husband would be better able to assist X with her emotional problems that resulted in behavioural problems and thereby assist her to have a more productive and enjoyable education and life generally. In very simple terms, it was clear she considered the father’s “over the top” behaviour (my words) was overall a bad influence on X and contributed to her behavioural problems.
She was of the view that many of X’s behavioural problems were as a result of her being exposed to conflict between her parents as well as the father’s inappropriate responses to X’s problems, and his predominant view that the behaviours were not X’s fault but rather caused by a lack of support for her by her mother.
To a very significantly lesser degree, her case also relied on X telling her that she wanted to spend more time with her and to it being in her best interest to spend more time with her half brother B.
It was abundantly clear that the level of communication between the parties had been extremely difficult for years and that they had no capacity whatsoever to have reasonable and meaningful communication.
The mother exhibited various emails from the father to her to her trial affidavit filed 7 December 2012. The disrespectful, argumentative and almost hysterical tone of the emails from the father to the mother was mirrored in the father’s presentation at court. The father exhibited, in his demeanour in court, a lack of ability to respectfully consider the opinions of others, although it could not be said that he presented as being deliberately and consciously vindictive towards the mother. The father’s attitude towards the mother could best be described as disrespectful and dismissive, illustrated by a total lack of ability to acknowledge her right to have her opinions and ideas listened to and properly considered by him.
The father’s presentation was characterized by very fast speech and regular interruptions, but he accepted and acknowledged requests to desist from that behaviour by the court and did not behave in a disrespectful manner to the court. The mother presented as having suffered from this behaviour for years and to being totally exhausted and worn down by the father’s almost pathological need to argue with her about every aspect of X’s care, and to present himself as the only parent who was really a “champion” of X and standing up for her “rights”.
What was abundantly clear to the court however, was that notwithstanding such enormous communication difficulties, the parties had on occasions been able to work together cooperatively to assist X. Both parents acknowledged the difficulties X had experienced at kindergarten and school, notwithstanding each attributing different causes for those behaviours. There had been, almost without exception, compliance by both parties with the 2006 orders from the time of their making. It was clear both parties love X very much.
The mother’s case in very simple terms was that if she had the sole parental responsibility for X and X lived primarily with her, she would be no longer subject to the father’s extreme behaviours. She believed this would be beneficial to X in settling her own behaviour and further she, the mother, would not have to communicate to anywhere near the same degree as to matters concerning X’s care and wellbeing.
The father simply wanted the court to continue the 2006 orders which to his mind worked well for X. He believed that the arrangement provided X with good support from both parents and that X loved living with them for equal time.
The Independent Children’s Lawyer was supportive of the 2006 order remaining in place save that handovers should occur on Friday at school rather than on a Thursday. It was her submission that the parties should continue to equally share parental responsibility.
Dr C’s evidence
Dr C evidence was very important in this matter and I intend to consider that before addressing the section 60B and section 60CC(2) and (3) provisions of the Act as they apply to the evidence in this matter.
Dr C provided three reports dated 20 May 2012, 19 November 2012 and 25 January 2013 respectively. All three reports were filed by the Independent Children’s Lawyer and Dr C was cross examined by the Independent Children’s Lawyer, the father and counsel for the mother.
As part of the report process for the first report dated 20 May 2012, Dr C observed X with her father as well as with her mother, her mother’s partner Mr Landon and her half brother B who at that time was aged less than two months. His observations of X’s interaction with each of her parents as well as with Mr Landon and baby B were all positive.
For the purposes of the report, Dr C spoke with X. X described feeling good about B coming into her life and to not remembering much about her parents living together as she was so young when they separated.
She described living with each of her parents week about and to feeling “just a bit uncomfortable” when she saw her parents together at some handovers at the (omitted) Police Station because “they might give each other the evil eye or get cross. I remember seeing them having a fight when I was little.”
She described having her own room at her mother’s house and at her father’s house but usually sleeping with dad in his bed and to trying to stop that because “I’m getting too old”. She said she didn’t sleep with her mum but that when she went to bed her mum would “sit with me and then go”.
She said that she got on well with her father and his parents, that her dad was a good cook and “I get naughty at dad’s; he does get cross and might yell at me.” She said that she tries to be good at her mother’s but that sometimes her mother gets angry but she’s not angry with her mother for that.
She said both of her parents were equally fine but “dad lets me go a bit”.
She said she found the shared care arrangement fine and “it’s annoying that my mum wants to change it. I’m happy with the way it is”. She said her mother told her that she wanted to change the shared care arrangement because she (X) will start getting confused with her dad telling her one thing and her mum and Mr Landon telling her another. She said that does happen sometimes.
She said that she wished her parents would “sort it out” and that “I don’t know who to trust anymore, confused”. She said she was uncomfortable to provide specific reasons or examples about getting confused messages from both parents but said to Dr C “it makes me feel icky” when her parents tell her different things about what happens at court and she thought it was “better not to talk about court”.
X thought her parents wanted what was best for her and said she didn’t know what was best but felt that the court would decide. She thought that her mum wanted her (X) to live mostly with her and said she would be “okay” she supposed if that happened. When asked about how she would feel about spending less time with her father, X told Dr C that she would be “sad but I could see him”. She was asked how she would cope if she spent only two days with her father instead of seven and X said “a bit upset, miss him, and feel a bit lonely. I have no favourites; they’re both my families”.
In relation to problems at school, X told Dr C that other children knew how to “push my buttons” but said it wasn’t as bad as it was before. She said that she had been left out of an invitation by a girl called (omitted) and that she had got upset because she’d invited (omitted) to her party. She said no one had ever invited her except a couple of friends at school and she only got invited for parties by friends out of school. X’s explanation for that was “it’s hard to trust someone with a temper”.
X thought that things would be better in her mum’s household if her mum tried to organise things with more friends and in her dad’s household if they did more active things and went out somewhere.
The matters to which I have referred appear on pages 5, 6 and 7 of Dr C’s report. Dr C’s recommendation contained on page 11 of his first report was that the prevailing shared care arrangements remain in place.
It was his recommendation that X’s parents individually and jointly take positive steps to improve the climate of their parenting endeavours for the sake of X. He suggested that they each learn from the feedback provided through the report as well as consider consultation with a suitable child orientated psychologist such as Ms A on how to improve communication and management issues relating to their joint parental responsibility.
In Dr C summary and opinion appearing on pages 9 and 10 ten of his first report, he described X as impressing as thoughtful and sensitive.
He described her as being closely bonded to her parents and having a warm and comfortable relationship with the mother’s partner and B.
He said X had experienced shared care for over five years and overall expressed no reason to change it. Dr C said X did not raise any significant issues that would question the value and appropriateness of her parenting experiences in each household and referred to the largely positive psychiatric reports obtained in respect of both parties.
X’s description to Dr C of the differences between households led him to opine that there were minor variations to which she had grown accustomed rather than points of genuine tension or unease. He said at the bottom of page 9,
“… she gave the impression of a young girl who appreciates the distinctive contributions each parent brings to her life and wishes to continue to have equal and substantial time with each”.
Dr C talked about the struggle X has to fully trust each parent when they give her different information about certain events or situations, and to X indicating quite clearly that she doesn’t wish to be told about those sorts of conflicts or indeed her parents perceptions of the nature of the conflicts.
Dr C said at the top of page 10 that X “desperately needs her parents to avoid fuelling any insipient distrust she may be developing”.
He described the mother as painting a picture where the attitudes and approaches of the father have been from her perspective, the main contributing factor to difficulties X has exhibited at home and at school. He talked about her belief that if X had less time with her father, she and Mr Landon would be able to instil greater consistency of parenting and discipline which would make a huge difference to X.
Dr C went on to say on page 10,
“However, it seems likely to me that X would resent further moves to have her time with her father restricted. She sees no reason to change the shared care arrangement, but rather focuses on being kept (via adult vigilance and care) from being exposed to discomfort arising from her parents not managing proper boundaries between adult and child concerns”.
Dr C further noted on page 10 of his report that,
“I wish to point out that the father may be prone to underestimate the transparency of his resentment and disdain towards the mother, though a good deal of this may arise at present from his frustration at being swept into this whole legal process. He also may not realise how imposing his covertly aggressive manner may be to others. Finally, he appears to downplay the emotional and social difficulties X experiences at school, so a more sensitive approach to these issues may assist her in the future.”
Dr C again recommended in his second report dated 19 November 2012 that the equal shared parenting time arrangements continue in place and that the parties continue to seek to find ways of making their necessary communication as free of conflict, animosity and mutual denigration as possible.
In this report, Dr C reported the father’s view that the relationship between he and the mother had improved since the earlier report, that he was getting on better with the staff at X’s school, that X was progressing well and that he still didn’t know why the mother was applying to change the parenting orders.
X talked to Dr C about things at school and conflicts improving since their last discussions and to X having learned and having had assistance from school with dealing with calming down after being angry. She said she was having lots of fun with her father and no problems with him at all although in the past he had “got a little mad.”
X described things with her mother as being good, to enjoying the new house they had moved into and to having a bike and being able to ride around and feeling more free. She said that she was getting on well with her stepfather and with B and that she still had fun at both her mother’s and her father’s house. She acknowledged getting a bit jealous of B because of the attention he needed and not having as much time as she would like with her mum because she was previously an only child and her mother was single but did not describe any real difficulties in that regard. She said she hadn’t heard much from her parents about what was happening at court but that there were no problems and that although her father didn’t like Mr Landon, he didn’t say bad things about him.
She said she was still living week and week about between the households and it was a bit stressful moving all the time and that it might be better to have two week about stretches. She thought that what her parents had decided together namely an equal shared arrangement was fine, that she felt caught in the middle and didn’t want to go into a big court case. She said she felt a bit upset when she left each of her parents. X told Dr C that she thought she coped probably a bit better in her mum’s household where she got to see her brother a lot more but that she loved both her parents “very, very much” so she thought it was fine the way it was.
X said she would like her dad to try his hardest to stop smoking and not complain to her if he got sick. She said her dad didn’t “poke his nose” into her mum’s business but her mum asked questions about her dad which made her feel weird. She was also keen for her mum to “do a review about my chores.”
The mother talked with Dr C again about the “massive problem” arising from communication between her and the father, and to communication not working because of the father’s “ridiculous communication.” She told Dr C the father was unable to be reasonable and fair and if things didn’t go his way he threatens and bullies, ignores and intimidates.
The mother told Dr C that she would like to have the decision making ability and for X to spend every second weekend with her father. She said she had given up trying to organise things because trying to reach agreement with the father was so frustrating and difficult. She said X told her that she just wanted to spend every second weekend with her father but then went on to say that she thought X was “ a bit torn” and that if her mother had not proceeded with the court case she would have accepted continuing with the week about arrangement.
Mr Landon told Dr C that X says that she doesn’t want to go back to her father’s and that X had asked if she could start calling him Dad. Dr C opined on page six of his second report that in the months after his first report, the matter appeared to have undergone a noticeable change from the better especially from X’s point of view. He talked about her discussing predominantly positive experiences in both households and to her strong emotional connections with each of her parents and with Mr Landon and B. He noted there seemed to be a relative absence of perceived conflict or mutual denigration between the parties and an improved school environment for X. He said that although there was some discussion as to whether there should be two weekly turnarounds or one weekly turnaround X had an overall insistence on maintaining a fair and equal distribution of time between parents.
Dr C referred to not having received any information relating to the proposed joint parenting work with a suitable psychologist but being prepared to do so if that could be arranged. He went on to say that he was inclined to see no reason, other than the obvious difficulties in achieving effective communication and negotiation between the parties, for altering the prevailing week about shared care arrangement.
In his third report dated 25 January 2013, Dr C referred to matters raised in a telephone consultation with Ms A, clinical psychologist, on 23 January 2013 and to her view that “X was influenced by the conflict between the parents”. Ms A noted to Dr C that X seemed to be concerned about her parents reactions to what she said, especially her dad, and to hers (Ms A’s) view that there was little prospect about the parents being able to effectively “co parent” X. Ms A expressed to Dr C that she thought the mother was more able to attend to the parenting role.
Dr C also spoke with Ms C Principal at (omitted) School who expressed that she did not believe there had been direct evidence of conflict between the parents at the school. She said that after speaking with X’s class teacher she was able to report that X had begun the 2012 school year in an unsettled manner but that once that was over she had settled in quite well and had a good relationship with her previous teacher. Ms C told Dr C that X’s teacher reported having more frequent communication with X’s mother than with her father and to not observing adverse effects when X moved from one household to the other.
Dr C final recommendation was to maintain his earlier recommendations, namely that X’s care arrangements remain unchanged.
He was concerned that neither party had appeared to put any great effort or thought into recognising the value of establishing a civil and workable communication between them and that he was aware they had not ended up consulting with the recommended psychologist Ms M. It was his view that if they did not do so and continued their dysfunctional level of communication they would be presenting X “with an emotional challenge she could well do without, especially given her proclivity towards having significant behavioural and emotional difficulties.”
He referred to her apparent excellent progress in recent months with her school behaviours and to the position that “I end up thinking there is no strong reason to change the existing care regime.” On page 5 of his report he referred to the only caveat on that view being the court finding evidence that the conflict between the parties is likely to have an enduring negative effect on the prospects of X in which case it might be necessary to consider orders in the nature of those suggested by the mother. He said however in the final sentence of page five of his third report “However, I believe this would be a tragic and unfair outcome as arguably neither party has made credible and effective effects to resolve the conflict between them.”
As previously stated, Dr C was cross examined by the Independent Children’s Lawyer and by counsel for the mother and by the father. Nothing arose in cross examination that significantly changed Dr C’s opinion. In final submissions by counsel for the Independent Children’s Lawyer, she submitted that the effect of Dr C’s evidence was that a change in parenting arrangements would not improve things for X. She referred to Dr C’s view that X loves both of her parents and is aware of the dislike they hold for each other. She submitted that Dr C noted in his first report on page six that X was unhappy about court proceedings, that she was aware of differences between her parents households and was aware that she could “get away” with more in her father’s household than in her mother’s.
She noted Dr C’s evidence that X did not want to change care arrangements but rather wanted her parents to protect her from their differences. She referred to Dr C’s evidence about X not wanting her mother to question her about things that occurred in her father’s household.
Mr Rogers adopted the submissions of the Independent Children’s Lawyer as to Dr C’s reservations about any benefit to X of a change in the equal shared parenting time. It was the submission of counsel for the mother that Dr C’s observations of the father in his reports, and his comment in his second report on page 4 as to the fact that the father would always be a poor communicator, being evidence supporting the characterization of the father by the mother in her evidence.
Overall Dr C was unshaken in his firm view that X’s situation was not going to be improved by change in the amount of time she spent with each of her parents but rather by each of her parents committing to working towards achieving a business like and respectful level of communication such that X was not exposed to their conflict and to the uneasiness engendered by them when they each tried to explain their perception of conflicts between them to X.
Evidence of the parties
This was an unusual matter where to a great extent many of the facts were agreed.
· The parties were agreed that they separated in October 2005 at which time X was approximately two and a half years old.
· That from then until the time of trial X had lived with each of them on a week about basis.
· That the week about living arrangements, embodied in a consent order of 9 October 2006, were agreed upon by the parties at separation, although from the mother’s perspective that was because she was harassed and harangued into so agreeing.
· That they had a poor level of communication for all of the time that X had been in an equal shared parenting arrangement.
· That notwithstanding their poor level of communication, there had been many occasions on which agreement had been reached as to means by which X could be assisted, although again it was the mother’s position that the father harassed and harangued her in relation to these issues.
· That their level of communication was completely unsatisfactory with each ascribing the blame for that to the other of them.
· That X began having behavioural problems as early as her attendance at kindergarten in 2007 resulting in a referral to early childhood psychology with the Department of Education and Children’s Services.
· A report noted X had difficulties with coping with frustration and managing her emotions and contained acknowledgment by both parties as to their conflict having an impact on X.
· That the parties agreed to X commencing primary school at (omitted) Primary School.
· That there were problems with X’s behaviour at (omitted) Primary School in early 2009, that X was suspended from the school in February 2009 because of her allegedly punching another student and not following instructions.
· That a further psychological report was prepared by Ms R psychologist, following upon the suspension, suggesting X obtain therapy from a private psychologist as a result of her persistent behavioural problems first evident at childcare then at preschool and then at school.
· That X was again suspended from school in April 2009 after an alleged assault of a staff member.
· That X commenced seeing psychologist Ms A by agreement between the parties in May 2009 and that in the middle to latter part of 2011, a court order was required to facilitate a resumption of that therapy.
· That the parties agreed that X might benefit from a change of school and to her so changing in July 2009 to (omitted) School at (omitted).
· That X’s first suspension at (omitted) School occurred on 17 August 2009 due to alleged violent and disruptive behaviour.
· That X was sent home from school on three other occasions in the latter part of 2009.
· That there had been a slight improvement in X’s behaviour in 2010 deteriorating again in the early part of 2011.
· That X was suspended twice from school in March and April of 2011.
· That X had problems again in terms of behaviours and interaction with other students at school in the earlier part of 2012.
· That her behaviour at school had improved as the 2012 year progressed.
Orders sought by the mother
Sole parental responsibility
The mother sought an order for sole parental responsibility for X. Section 61B of the Act defines parental responsibility. It is in the following terms:
In this part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61DA is headed “PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY WHEN MAKING PARENTING ORDERS”. Section 61DA(1) is in the following terms:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) is in the following terms:
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of a child (or a person who lives with a parent of the child) has engaged in
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
The presumption may be rebutted. Section 61DA(4) of the Act is in the following terms:
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAC of the Act refers to the effect of a parenting order that provides for shared parental responsibility. That section is in the following terms:
(1) This section applies if, under a parenting order:
(a) two or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Section 65DAE refers to consultation about issues that are not major long term issues. That section is in the following terms:
(1) If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a) has parental responsibility for the child; or
(b) shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major long term issues.
The mother has found consulting with the father about X since the parties separated in 2005 to be frustrating and distressing. I accept her evidence that she has frequently felt “bombarded” (my word) by the almost hysterical and histrionic responses to communications from her by the father.
I accept her evidence in that regard because that was exactly the manner in which he behaved in these proceedings in the presentation of his case, in the evidence that he provided by way of affidavit, and in his answers in cross examination. I also find, based on their evidence, that he behaved in that way in his presentation to the Family Consultant, Dr C, Ms A and the various teachers and officials at X’s school when he discussed issues concerning X with them.
The father threatened the mother that he would not send X to school at the commencement of the 2013 school year and, upon her exclusion from school in May 2012, refused to deal with the schools request to meet with him, kept X out of school and didn’t notify the mother. The mother’s frustrations are understandable.
There is no evidence to support a finding that the presumption of equal shared parental responsibility would be rebutted because of any issues relating to family violence.
I am not satisfied that there is any evidence to support a finding that it would not be in X’s best interests for her parents to have equal shared parental responsibility.
I find that both X’s parents love her very much. I find that they have both been extremely concerned about her behavioural problems which have been of many years standing. I find that X’s parents have very different personalities.
Both of X’s parents have been closely involved in working with X’s teachers at the schools that she has attended, her therapist Ms A and Ms R, the original DECS psychologist. They have not always agreed as to the reasons for X’s behavioural problems and it is clear that the father has on occasion tended to the view that X’s reactions to problems in her interaction with teachers and school friends has been on occasion unfairly attributed to X without a proper questioning of the role of other students with whom she has come into conflict and how that has been dealt with by the teachers.
Notwithstanding all of these difficulties, and notwithstanding the difficult nature of the communication, the parties have been able to agree to such significant issues as a change of school for X early in her school life, and, with the exception in the latter part of 2012, X’s attendance upon Ms A for assistance.
Equal shared parental responsibility does not require parents to consult about day to day issues arising when X is in the care of each of them. The Act requires parties who share equal shared parental responsibility to consult about “major long term issues”.
I am not satisfied on the evidence that the parties are unable to consult about such issues, albeit that I am satisfied that such consultations are, at least from the perspective of the mother, unpleasant and stressful. There is no doubt that the father has no appreciation whatsoever of the impact of his behaviour on other people who do not agree with his particular view of a situation. To accede to the mother’s application for an order for sole parental responsibility would however effectively exclude the father from input into decisions such as X’s education and major health issues. It would be possible of course to grant an order that the mother have sole parental responsibility for some issues such as education but retain joint parental responsibility for others such as health. Such an order however I find would be confusing and without basis. I find that X has the right to have her two parents who love her very much contributing to decisions about her long term welfare.
For those reasons I would decline to make an order for sole parental responsibility as sought by the mother. I note that such an order is not supported by the Independent Children’s Lawyer.
Time X is to spend with each of her parents
The mother also sought an order that the existing order providing for X to live with each of her parents on a week about basis be discharged and replaced with an order providing for X to live with her and spend time with her father on alternate weekends and during school holiday time.
In circumstances where the court intends to order that the parties have equal shared parental responsibility, section 65DAA is enlivened. The court, under the terms of that section, has to consider whether X spending equal time with each of her parents would be in her best interests, whether such equal time is reasonably practicable, and if it is, consider making an order to provide for X to spend equal time with each of her parents. Such an order of course has to regard X’s best interests as being of paramount consideration.
If the court does not determine that an order for equal shared parenting time is in X’s best interests but the order for equal shared parental responsibility is in place the court must then consider whether X should spend substantial and significant time with each of her parents, whether that is reasonably practicable and if so and in her best interests, make such an order.
Section 65DAA(5) is in the following terms:
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
X has lived with her parents on a week about basis since October 2005, a period of nearly eight years to the time of trial. The parents live sufficiently proximate to each other to facilitate such arrangement. The parents themselves implemented the arrangement for X to spend equal time with each of them.
In my consideration of the question of equal shared parental responsibility, I referred to the very real difficulties the parties experience in communication. Notwithstanding the recommendations contained in Dr C’s first report about engaging in therapeutic intervention to assist in communication, that had not occurred as at the time of trial and the father’s excuse was that he could not afford such therapy.
I accept the submission of the mother’s counsel that she was more inclined to be prepared to engage in therapeutic work with the father. The parties have been in dispute on occasions as to what sports X should engage in and how her behavioural difficulties at school should be addressed.
Nevertheless, by the time of trial the evidence was that X’s behaviours at school were improving and there was no evidence to suggest that the parties inability to effectively communicate had led to any significant difficulties with respect to X moving between households or attending regularly at school. X made it clear to Dr C that she did not like being involved in her parent’s disputes, and that on occasion she was confused by the different versions of events given to her by each of her parents.
I am satisfied that at time of trial the parties had the capacity to implement an arrangement for equal shared parenting time. I find that the parties will continue to experience difficulties in their communication for the foreseeable future in circumstances where they have such vastly different personalities which makes communication difficult.
Nevertheless, I find that when difficulties have arisen in the almost eight years of equal shared parenting time, one way and another they have been resolved by the parties with very little intervention by the court, save as to the order requiring the father to facilitate X’s ongoing attendance with Ms A.
In the next couple of years it will be necessary to decide upon which high school X is to attend, and, in the same way as the parties managed to agree on X moving from one primary school to another, I am satisfied that they will be able to agree, even if they need the assistance of mediation to do so, on the school to be attended by X for her high school years.
I find the parties had at the time of trial and will always have difficulties in communicating with each other but that eventually they seem able to resolve their difficulties in implementing an equal shared parenting time arrangement. They have done so for nearly eight years.
I am satisfied that the parties communication difficulties have had an impact on X. Nevertheless, I accept the evidence of Dr C that X is very aware of the differences between her parents, that she loves both of her parents very much as well as having a close relationship with her mother’s husband and her brother B, and that she is able to adjust to the differences in each of the households.
I find on the evidence that the mother’s household is likely to be slightly more regimented than that of the father but that X is well aware of those differences herself and they are not, from her perspective, of major significance.
I am not satisfied on the evidence that X’s behavioural problems, which have been evident from her earliest child care and kindergarten days, are directly attributable to the communication difficulties between her parents or to the different “messages” she receives from her parents while spending time in each of their households.
Taking those matters into account, I am satisfied that it is reasonably practicable for X to spend equal time with each of her parents.
Turning to section 60CC(2) of the Act, I am satisfied that X has a meaningful relationship with both of her parents and that there is no evidence to suggest she is exposed to, or subjected to abuse, neglect or family violence.
As to the factors referred to in section 60CC(3) of the Act, I am satisfied that X is very clear in her views as expressed to Dr C, namely that she loves both of her parents, that she is content with the amount of time she spends in the household of each of her parents and that she does not want that to change. She expressed to Dr C her unhappiness about her mother attempting to vary those arrangements.
X is ten years old, and I find on the evidence of Dr C that she is a sensible and thoughtful child who is aware of the challenges she faces in living with two parents who are so very different. She is mindful that they each try and involve her from time to time in their disputes and she doesn’t want that to happen. She describes her knowledge of her father not liking her mother’s husband but not saying anything bad about him or questioning her about her mother’s household but to not liking the fact that her mother questions her about what happens in her father’s household.
X is aware that she has behavioural problems and I find is committed to working hard to resolve those problems. I am satisfied that X’s views in this matter are important and that even though she is only ten years old, her understanding and comprehension of the relevant issues is sound. I am satisfied X has an excellent relationship with each of her parents as well as extended family members and her mother’s husband and her baby brother B.
I find both parents have taken every opportunity to participate in making decisions about major long term issues in relation to X, to spending time with her and communicating with her. I find that each of X’s parents has fulfilled their obligations to maintain her. I find that any change in X’s circumstances such that it reduces her time in her father’s household and increases her time in her mother’s household, is likely to cause sadness for X and is a change that she will not really understand. X sees no need for a change and I am not satisfied on the evidence that a change would benefit her.
I am satisfied that living primarily in the household of her mother is likely to embroil her in disputes between her parents to a greater degree, in that her mother essentially sees little benefit in X spending significant time with her father as she effectively believes that the father’s personality will “rub off” on X and add to her ability to manage her behaviours appropriately.
There is no doubt that the father has behaved inappropriately on occasion with respect to how he has dealt with issues, such as X’s exclusion from school in May of 2012 and requiring X to negotiate with the mother about attendance at a family wedding which was completely inappropriate and rightly complained of by the mother. Nevertheless, I find that X has always perceived her father as a loving and devoted father and someone who has always been supportive of her in all aspects of her life.
I find that X would be distressed if her living arrangements change such that instead of living with her father for half of her time, that was reduced to two or three nights per fortnight and time during school holidays. Such a change would fundamentally alter the way X has lived her life since she can remember and I find would not be in her best interests.
There is no practical difficulty and expense associated with maintaining X’s equal shared parenting time arrangements and I am satisfied that each of her parents have the capacity to provide for X’s needs including her emotional and intellectual needs. Notwithstanding X’s difficulties at school, her close and loving relationship with each of her parents and further extended family members is indicative of both of her parents contributing to a solid emotional base upon which X is able to build her life. X is a bright child who has two parents both involved and interested in her education and who have both, albeit in different manners and on occasions with different levels of success, assisted her with behavioural problems and the addressing of those problems.
X is a ten year old girl who enjoys the lifestyle that she experiences in the households of each of her parents. I am satisfied that each parent has much to offer X as regards broad and different life experiences that will contribute to her development as a well balanced young person.
I find that each of the parents have in the main acquitted themselves well as regards the responsibilities of parenthood, albeit that there is a need for the father to ameliorate some of the excesses he has exhibited in terms of his interaction with other people concerned with X’s care, welfare and development including of course the mother, but also X’s teachers and therapist. I find that the father has that capacity and that the trial process at least drew the father’s attention to these issues.
As regards the attitude to X, I find that both parents are loving and devoted parents who only want the best for X.
I am satisfied that an order for equal shared parenting time is the order that is least likely to lead to the institution of further proceedings. The mother conceded that if she had not proceeded with her application, X would have continued to accept an arrangement for equal shared parenting time, and of course I have found that that is X’s preference and should be respected.
Dr C’s evidence was that X’s problems would not be solved by a change of her care arrangements, which he found she may ultimately resent, but in fact by the parties working together to ensure that X was not subject to their communication difficulties. I am not satisfied that it is in X’s best interests to vary the order for equal shared parenting time.
Conclusion
Taking into account my findings as to a continuation of the order for equal shared parental responsibility and for equal shared parenting time, I intend to dismiss the mother’s application.
The mother and the Independent Children’s Lawyer both submitted that as much as possible, handovers should occur at school on Fridays and that the parties continue to facilitate X attending upon Ms A as required. That was a position strongly promoted by Dr C. The Independent Children’s Lawyer submitted that it would be appropriate for an order for mediation between the parties with respect to X’s attendance at high school and that communication should be by way of respectful email. She also submitted that there should be an order restraining the parties from denigrating each other or other family members to X or in her presence or discussing the proceedings with X or allowing anyone else to do so except relevant experts. These orders were supported by counsel for the mother who also sought usual orders about exchange of addresses and phone numbers, for school activities to be agreed by both, for urgent medical treatment to be agreed by both and for advice if X was not at school.
The order of 9 October 2006 was a very simple order. It provided for X’s week about living arrangements, for handover arrangements which are no longer relevant and for neither party to take X out of the State of South Australia without the knowledge and consent of the other party. The parties were to keep each other informed of the current address where X is residing at all times and the parties were restrained and injunctions were granted restraining each of them from consuming non prescription drugs or medicine for a period of 24 hours prior to and during any period of time spent with the child. There was on order in relation to X’s childcare and for the parties to communicate to one another any illness suffered by X and to keep one another informed in relation to the child’s general state of health.
I am not satisfied that it is in X’s interests to have orders with respect to her care put in place that raise the potential for further argument between the parties. The parties managed with the 2006 order for a period of five years before the mother instituted proceedings to change that order.
In the mother’s trial affidavit, she referred to not instituting proceedings earlier, notwithstanding her concerns about the poor communication between the parties and X’s behavioural problems, because she did not want to be embroiled in further litigation with the father following upon the expensive and drawn out litigation with respect to property settlement matters in 2007 and 2008. The mother conceded in paragraph 14 of that trial affidavit that the orders had been essentially complied with, save and except when the father took X to Sydney around the Christmas period in 2010 for three weeks without her consent and refused to return her to the mother as ordered by the court.
Since the orders were made, X has commenced attending at school, the parties have agreed on a change of school, there is no complaint by either party in relation to the receipt of any information from X’s school or in relation to X’s health from either the other of them or any educational institution or medical practitioner involved with X and neither party has seen fit to file any applications for contravention. In short, in circumstances where there has been an order in place limited in its prescriptiveness, the parties have managed to share X’s care without the need for further proceedings.
I find X’s best interests would be met by as few changes as possible to the 2006 order, and accordingly I decline to make orders such as orders for mediation, respectful email communication and any non denigration orders. Nevertheless, it would be abundantly clear to both parties that my finding as to X’s best interests at this time being met by a continuation of the order for equal shared parental responsibility and equal shared parenting time would inevitably change if the issues raised in this judgment are not addressed by the parties as so strongly recommended by Dr C.
For those reasons I make the following order.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Judge Mead
Date: 4 April 2014
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