Langan and Thurston
[2012] FMCAfam 345
•24 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LANGAN & THURSTON | [2012] FMCAfam 345 |
| FAMILY LAW – Children – parenting – parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – whether sole parental responsibility to the mother is in the best interests of the child and reasonably practicable – shared care – substantial and significant time – one child aged 6 years 6 months – high conflict between parents – variation of earlier Orders. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 60CE, 61DA, 62G, 65AA, 65DAA |
| Bright & Bright v Bright & Mackley (1995) FLC 92-570 Esmond & Irving [2011] FMCAfam 642 Freeman & Freeman (1987) FLC 91-857 Langan & Thurston [2010] FMCAfam 781 N & M (2003) FMCAfam 29 Rice & Asplund (1979) FLC 90-725 |
| Applicant: | MS LANGAN |
| Respondent: | MR THURSTON |
| File Number: | SYC 4362 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 22 & 23 July, 4 November 2010 |
| Date of Last Submission: | 4 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Maurice |
| Solicitors for the Applicant: | Eleanor Murphy & Company |
| Counsel for the Respondent: | Mr Watkins |
| Solicitors for the Respondent: | Beswick Solicitors |
ORDERS
Orders 1 to 10 inclusive made by consent in the Family Court of Australia at Sydney on 29 July 2008 are discharged.
The Applicant Mother is to have sole parental responsibility for the child of the marriage [X] born [in] 2005.
The child [X] is to live with the Mother.
The Father is to spend time with the child [X] as follows:
(a)During the school term from immediately after school on the first Wednesday of each fortnight until the commencement of school on the following Tuesday morning;
(b)For half of the Autumn, Winter and Spring school holidays in each year, being the first half of the school holidays in 2013 and all odd-numbered years and the second half in 2012 and all even numbered years;
(c)From 9:00am on 2 January until 5:00pm on Australia Day in each year;
(d)In even numbered years commencing in 2012 from 2:00pm on Christmas Eve until 12 noon on Christmas Day;
(e)In odd numbered years commencing in 2013 from 12 noon on Christmas Day until 6:00pm on Boxing Day;
(f)On the Father’s birthday in each year from immediately after school if the day falls on a school day until 6:00pm that evening or from 9:00am until 5:00pm if the day falls on a weekend or holiday and the child would not otherwise be spending time with the Father according to these Orders;
(g)On the birthday of the paternal grandmother MS T in each year from immediately after school if the day falls on a school day until 6:00pm that evening or from 9:00am until 5:00pm if the day falls on a weekend or holiday and the child would not otherwise be spending time with the Father as provided by these Orders;
(h)On the weekend that includes Father’s Day in each year from immediately after school on the Friday until the commencement of school on the Monday if Father’s Day should fall on a day when the child would not otherwise be spending time with the Father as provided by these Orders;
(i)On the child’s birthday in each year from immediately after school if the day falls on a school day until 6:00pm that evening or from 9:00am until 1:00pm if the birthday falls on a weekend or holiday and the child would not otherwise be spending time with the Father as provided by these Orders;
(j)On ANZAC Day in each year from immediately after school on the day before ANZAC Day until 6:00pm if the child would not otherwise be spending time with the Father as provided by these Orders; and
(k)At such other times if any as the parties shall agree.
For the purposes of Order (4)(b) above:
(a)the first half of the school holidays will commence immediately after school on the last day of the school term and will conclude at 5:00pm on the middle Saturday of the school holidays; and
(b)the second half of the school holidays will commence at 9:00am on the middle Sunday of the school holidays and will conclude at the commencement of school on the first day of the school term when the children are required to attend school.
Notwithstanding the provisions of Order (4) above, the Father’s time with the child will be suspended and the child will live with the Mother on the following days and times:
(a)On the Mother’s birthday in each year from immediately after school if the day falls on a school day until 6:00pm that evening or from 9:00am until 5:00pm if the day falls on a weekend or holiday and the child would not otherwise be living with the Mother as provided by these Orders;
(b)On the birthday of Mr O in each year from immediately after school if the day falls on a school day until 6:00pm that evening or from 9:00am until 5:00pm if the day falls on a weekend or holiday and the child would not otherwise be living with the Mother as provided by these Orders;
(c)On the birthday of the child’s half-sister [Y] in each year from immediately after school if the day falls on a school day until 6:00pm that evening or from 9:00am until 5:00pm if the day falls on a weekend or holiday and the child would not otherwise be living with the Mother as provided by these Orders;
(d)On the weekend that includes Mother’s Day in each year from immediately after school on the Friday until the commencement of school on the Monday or the commencement of school on the Tuesday if the Monday is a public holiday if Mother’s Day should fall on a day when the child would not otherwise be living with the Mother as provided by these Orders; and
(e)On the child’s birthday in each year from immediately after school if the day falls on a school day until 6:00pm or from 9:00am until 1:00pm if the birthday falls on a weekend or holiday and the child would not otherwise be living with the Mother as provided by these Orders.
All changeovers between the parents that are to commence immediately after school or conclude at the commencement of school will take place at the child’s school and for that purpose the parent with whom the child has been living or spending time will ensure that the child is delivered promptly to school with a sufficient amount of clean clothes, school uniforms, sporting equipment and school books and other items that the child will require.
All changeovers that are not to take place at the child’s school will be carried out by the parent with whom the child [X] is living or spending time or that parent’s agreed nominee transporting the child to the other parent’s home at the time provided by these Orders.
Whilst the child [X] is living with the Mother or spending time with the Father at times provided by these Orders the parent with whom the child is living or spending time will facilitate the child calling the other parent on the telephone on one occasion between the hours of 6:00 and 6:30pm each day.
The Father is restrained by injunction from speaking in an abusive or derogatory or offensive way to the Mother or about the Mother or about the Mother’s family group in the presence or hearing of the child [X].
The Father is restrained by injunction from sending any abusive or derogatory or offensive messages to the Mother by email, facsimile transmission or SMS telephone text message or any other electronic means.
The Mother must authorise the Principal of any school attended by the child [X] to forward to the father on a regular basis copies of all school reports, newsletters, information about school photographs and all other documents usually provided to parents of children attending that school.
Each parent is permitted to attend school functions and activities including school sporting activities in which the child [X] is involved.
Each parent is permitted to attend parent-teacher interviews at the child’s school when they are held and for that purpose each parent is to arrange his or her own appointment with the child’s teacher or teachers at a time that does not coincide with the appointment arranged by the other parent.
Each party must inform the other party as soon as is reasonably possible of any illness or injury suffered by the child [X] requiring treatment by a medical practitioner or at a hospital and provide details of the name and address of the medical practitioner or hospital.
IT IS NOTED that publication of this judgment under the pseudonym Langan & Thurston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4362 of 2008
| MS LANGAN |
Applicant
And
| MR THURSTON |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for parenting orders by the Mother of a boy called [X], who was born [in] 2005. She wishes to vary Orders made by consent in the Family Court of Australia on 29th July 2008. She seeks orders that [X] should live with her and she should have sole parental responsibility for him. She also seeks orders that the Father would spend time with [X] on alternate weekends and for half of each school holiday period.
The orders sought by the Mother are opposed by the Father.
Background
The parties were married [in] 2005. There is one child of the marriage, [X], who was born [in] 2005. [X] is now six years and six months old.
The parties separated under the one roof on 1st December 2007.
On 29th July 2008 the parties entered into consent Orders in the Family Court of Australia dealing with both parenting and property issues.
The agreed parenting Orders are quite lengthy and are summarised as follows:
a)The parties were to have equal shared parental responsibility for the child [X].
b)[X] would spend an equal number of days each fortnight with each parent in the following pattern:
i)Monday to Wednesday in Week 1 with the Mother;
ii)Thursday to Sunday in Week 1 with the Father;
iii)Monday and Tuesday in Week 2 with the Mother;
iv)Wednesday to Friday in Week 2 with the Father; and
v)Saturday and Sunday in Week 2 with the Mother.
c)Alternating times on Christmas Eve, Christmas Day and Boxing Day with each parent;
d)[X] would spend the Mother’s birthday with his mother;
e)[X] would spend his father’s birthday with his father;
f)[X] would spend Mother’s Day with his mother;
g)[X] would spend Father’s Day with his father;
h)Changeover would be at the parents’ homes;
i)Each party had to give the other four weeks’ notice of any proposed holiday away with the child;
j)The parties agreed to obtain an Australian passport for [X], which would be held by the mother unless needed by the Father; and
k)The parties agreed that they would only take the child to countries that were parties to the Hague Convention on the Civil Aspects of International Child Abduction.
The Orders contained two Notations that are relevant:
A. The Court notes that prior to [X] commencing primary school the parties will consider whether it would be in the child’s best interests to commence a shared parenting arrangement whereby [X] lives with each parent in alternate weeks.
B. The parties agree to review these Orders before [X] commences attending primary school.
The parties sold the former matrimonial home in November 2008 and commenced living in separate residences.
The Mother formed a relationship with a man named Mr O, whom she later married, and their daughter [Y] was born [in] 2009.
The Applicant Mother and the Respondent Father were divorced on 25th June 2009.
The Mother commenced proceedings in this Court on 20th November 2009, seeking to vary the Consent Orders made in the Family Court the year before. In particular she sought orders that the child [X] should live with her and spend alternate weekends and half the school holidays with his father.
The Mother also sought injunctive orders, on an interim and final basis, restraining the Father from speaking in a derogatory or abusive manner to the Mother or about her or her family group in the child’s presence or at all. The final order sought a restraint on the Father sending abusive text messages to the Mother.
The Mother sought interim orders requiring the Father to consult a psychiatrist of her choice for the purpose of preparing a report for the Court and restraining the Father from sending text messages by mobile phone or emails containing abusive or offensive language to her.
On 10th February 2010 the parties entered into the following Interim Consent Orders:
1. That the Father be restrained from sending text messages by mobile phone or emails or any other communication whether electronic or written or verbal to the mother or her family containing abusive or offensive language.
2. That the father is restrained from speaking in a derogatory or abusive manner to the mother or about the mother or her family group in [X]’s presence or at all.
The parties attended a Child Dispute Conference with a Family Consultant on 1st March 2010. No agreement was reached on any issue. The Family Consultant, in her Memorandum to the Court of 1st March 2010 recommended a Single Expert Report be prepared by a Child and Family Psychiatrist and the appointment of an Independent Children’s Lawyer.
On 2nd March 2010 the Court ordered that the parties should attend upon a single expert for the purpose of a child and family psychiatric assessment and that they should shared the single expert’s costs. The Application was listed for final hearing on 22nd and 23rd July 2010.
On 16th June 2010 the parties consented to an order appointing Dr B, a consultant clinical psychologist, as the Single Expert for the purpose of these proceedings.
The final hearing took place on 22nd and 23rd July and was adjourned part-heard to 4th November 2010.
Issues
The parties complain that they cannot communicate with each other on issues concerning their son. The Father complains that the Mother makes decisions without consulting him. The Mother has also complained that the Father has made decisions about the child, such as arranging for a blood test, without consulting her.
The child’s schooling was an issue between the parents.
Orders Sought
The Mother, in a Minute of Order submitted by her counsel on the final day of the hearing, seeks the following Orders:
1. That the orders made in the Family Court of Australia on 29 July 2008 be discharged.
2. That the Mother is to have sole parental responsibility of the child of the marriage [X] born [in] 2005 (“[X]”) and that [X] live with the Mother.
3. That both parties shall take the child to any sporting or school extracurricular activities in which [X] is enrolled if same fall within the period [X] is in their care.
4. That the Father spend time with [X] every alternate weekend from after school Friday until 7.00pm Sunday and for half of every period of school holidays.
5. That the Father is restrained from speaking in a derogatory or abusive manner to the Mother or about the Mother or the Mother’s family group in the presence of the child [X] or at all and is restrained from sending text messages using abusive language.
6. That each of the parents may call [X] on the telephone once every day when the child is with the other parent and the parent in whose care [X] is will facilitate the call and ensure that [X] speaks to the other or that, if unable at that moment, calls back at a later time.
7. That the Father shall be entitled to attend any school function or activities in which [X] is involved and the Mother shall notify the Father of all such functions or activities and will provide to the Father all of [X]’ school reports.
8. That each of the parties is to advise the other of any health problems being experienced by [X] and to keep the other informed as to the treatment (if any) and supply any relevant treatments to the other parent.
The Father, in a Minute submitted by his counsel on the second day of the hearing, seeks these orders:
1. That the Husband forthwith do all things to commence, attend and complete an accredited anger management program (minimum 16 sessions) as recommended by Dr B and the husband’s solicitors are at liberty to contact Dr B to clarify and confirm the details of such course.
2. That both parties forthwith do all things to commence, participate and complete a multi-session (minimum 8 sessions) educational parenting post-separation program as recommended by Dr B.
3. That the Husband continue therapy with Dr G and the Husband be permitted to disclose to Dr G the report of Dr B dated 20 July 2010.
4. That the Husband be restrained from abusing, harassing or intimidating the Applicant Wife.
5. That both parties be restrained from criticising or denigrating the other within the presence of, or hearing of the child [X].
6. That final orders sought by the Mother’s application filed 20 November 2010 (sic) be deferred until
a. the parties have undergone courses and/or treatment set out in Orders 1 to 3 hereof and
b. the parties have attended upon Dr B as required by him and he has reported further to the court.
Evidence
One issue that arose at the commencement of the hearing was the matter of objections by counsel for the Mother to the admission into evidence of two affidavits of expert witnesses sought to be relied upon by the Father. One was by Dr G, a psychiatrist, and the other was by Ms L, a social worker.
After hearing submissions from both counsel, I refused the father leave to rely on the affidavit of Dr G and granted leave to rely on the affidavit of Ms L (Langan & Thurston[1]).
[1] [2010] FMCAfam 781
The Mother relied on her affidavits of:
a)9th November 2009;
b)1st December 2009;
c)5th February 2010;
d)15th June 2010; and
e)2ndJuly 2010.
The Mother later affirmed and filed an affidavit on 4th November 2010.
The Mother gave oral evidence and was cross-examined by Mr Watkins of counsel, who appeared for the Father.
It was the Mother’s evidence that she had agreed to the Consent Orders in the Family Court (made on 29th July 2008) “at a time when the Father was behaving in a reasonably civilized manner except for some incidents but he was remorseful afterwards and said to me:-
‘I want us to have a good parenting relationship’.[2]
[2] Affidavit of Ms Thurston 9.11.2009 at paragraph [6]
However, the Mother deposed that from about December that year she began to receive obscene and abusive emails and text messages from the Father. The Father also directed abusive messages to the Mother’s new partner, Mr O and abused him over the telephone.
The abusive messages and telephone calls continued throughout the following year. The Mother expressed her concern over these messages in paragraph [90] of her affidavit of 9 November 2009:
I am deeply concerned and fearful not only about the Father’s obviously disturbed mental state but also the parental alienation in which he is clearly engaging, calling me names in front of [X] and making numerous comments addressed to [X] which indicate he is “safe” with his father and insinuates he is not safe with me.[3]
[3] Ibid at [90]
In her affidavit of 1st December 2009 the Mother set out further examples of these messages, of which there were 41 between 31st October and 24th November 2009.[4]
[4] Affidavit of Ms Thurston 1 December 2009 at [3]
In cross-examination by Mr Watkins, the Mother agreed with the passages in the report by Dr B that stated that the child [X] liked spending time in the homes of each of his parents and moved between each household with little concern. She explained that the current arrangement for the child was that:
…over a two-week period, he spends a five-day and a two-day period with me and a four-day and a three-day period with his father, which adds up to seven days each, over a fortnight.[5]
[5] Transcript 22 July 2010 page 34 at 42-44
The changeover arrangements are that one parent delivers the child to the other parent’s house. The Mother complained that at some changeover there was abuse directed at her by the Father. She also expressed concern that the Father had arranged a blood test for the child without consulting her.
Mr Watkins asked the Mother if her concerns about the arrangements related to issues of communication and the abuse directed at her, and if those matters were resolved, whether she would be content to maintain the current arrangements. Her reply was that:
Well, there’s also the issue of stability, when [X] starts school next year – going between the two houses, as well.[6]
[6] Transcript 22.7.2010 p. 37 at 11-12
The Mother also said that schooling was an issue between the parents. She noted that [X] was due to start school the following year. This, she said, was “quite a significant change”.[7]
[7] Ibid p.39 at 47
The Mother explained that her proposed arrangement for the child was that he would live with her and spend every other weekend with his father. She said that she had been asked to agree to a week-about arrangement once the child started school but she would not agree.
In re-examination, the Mother said that she wanted [X] to attend a Catholic school, [C] School.
The Mother also relied on the evidence of her new husband, Mr O. He deposed that he and the Mother now have a child of their own, a daughter who was born in 2009.
Mr O described in his affidavit of 15th July 2010 and incident that occurred on 26th April 2010 when he had taken [X] to [sport omitted] training. He said that the Father arrived and spoke to him, saying such things as:
“You’re nothing but a coward”
“You can blame your slut of a wife”
“Stop harassing me! You’re intimidating me. I’m just here to watch my son play [omitted], please leave me alone”.
“If you keep hitting my son I’ll get the law on you”.[8]
[8] Affidavit of Mr O 15.6.2010 at [5]
Mr O also described an incident the following day when he drove the child to his father’s home. He deposed that the Father said “You intimidate me. Keep away from my property” and shortly afterwards raised his fist at him.[9]
[9] Ibid at [7] (although the paragraphing is repeated, and there are two paragraphs marked “4” and two marked “5”)
Mr O gave oral evidence and was cross-examined about the contents of his affidavit. He denied that [X] was confused about who his father is, saying he thought [X] was “well aware who his father is”.[10] He described [X] as:
…a very nice little boy, a very smart little boy, and very loving.[11]
[10] Transcript 23.7.2010 page 65 at 8-9
[11] Ibid at 21-22
The Father gave oral evidence. He relied on two affidavits, sworn on:
a)10th February 2010; and
b)14th July 2010.
In his affidavit of 10th February 2010, the Father referred to text messages which he had forwarded to the Mother, saying:
6. I have sent many text messages to Ms Langan, which were inappropriate. I apologise to Ms Langan and to the Court for the remarks in those text which were, on many occasions, offensive and inflammatory.
7. I say that [X] has not read, nor has any knowledge of, those texts.[12]
[12] Affidavit of Mr Thurston 10.2.2010 at paragraphs [6] & [7]
The Father denied having made any derogatory comment to either the Mother of Mr O within the hearing of [X].
The Father stated that the relationship between the Mother and himself had been strained, with difficulties in their post-separation communication exacerbated by a number of issues. He deposed at paragraph [11] of his earlier affidavit:
One of the most significant causes of dispute between Ms Langan and I is that, despite my repeated requests for her to be more considerate when she chooses to take holiday time with [X], she has continued to impinge upon my time with [X] when she takes holidays. This has led to the child not having spent time with me for some times up to 18 days whilst, in reality, the time away from has been significantly less.[13]
[13] Ibid at [11]
The Father also described the Mother’s refusal to return his passport, saying that she was doing so on legal advice because he had not completed the necessary form to enable [X] to acquire a passport, as provided by the earlier consent Orders.
He also described other areas where he claimed that the Mother would not cooperate, including his wish to take the child to the ANZAC Day ceremony at [omitted], which he attends every year.[14]
[14] Ibid at [30]
The Father deposed that he did not wish the Mother to ring the child when the child is spending time with him, “as it is unsettling for [X]”.[15] He also suggested that the parties commence using a Communication Book.
[15] Ibid at [28]
The Father also deposed that he regularly took Thursdays off work and would take [X] to and from Kindergarten on Thursdays.
The Father maintained that he had no intention of alienating [X] from his mother.
He stated that he had enrolled in a Parenting after Separation Course at Relationships Australia.
In his later affidavit, sworn on 14th July 2010, the Father described the activities in which he engages with his son, including various outings, playing board games and cards, cooking, going to football games and to Taronga Zoo.
The Father deposed that the child spends time with his paternal extended family, including grandparents and his uncle and cousins.
The Father set out his views about the school he thought the child should attend. He set out his preference for one of two Government Schools, either [suburbs omitted]. He noted that the Mother had already attended open days at two Catholic Primary Schools, [K] School or [C] School. He stated his wish for the parties to attend school open days together, which the Mother declined to do, and expressed a wish that the child should attend [F] Public School, which appeared to him to be an excellent environment for children. If the Mother did not agree to [F], he proposed [A] Public School, which is situated midway between the parties’ respective homes.
The Father disputed Mr O’s account of the incident between them at the child’s [omitted] training on 26 April 2010. He stated that Mr O had previously abused him and that Mr O asked him:
“What are you doing here? A month ago you were dead against [X] playing [omitted]”.
He replied:
“I wasn’t given the choice. You just signed him up. You are a coward. I am just here to watch my son play [omitted]”.
The Father deposed that Mr O then said to him:
“Why don’t you be a father to your son? You’re an idiot. I am happy with my court case”.[16]
[16] Affidavit of Mr Thurston 14.7.2010 at [61]
As to the incident the following day, the Father claimed that [X] had said to him of Mr O:
“He is another one of my dads; he is not very nice to me”.[17]
[17] Affidavit of Mr Thurston 14.7.2010 at [69]
The Father states that he went up to Mr O, repeated what the child had said and then said:
“If I hear [X] say that to me once more, I will be around with the law”.[18]
[18] Ibid at [70]
He went on to claim that Mr O then grabbed him by the left bicep, but he shook him free.
The Father deposed in his affidavit that he believed it was important for [X] to spend equal time with his mother and himself. The parents had never had a problem with following this arrangement which was set out in the consent orders and [X] was comfortable in that routine.
The Father stated:
113.As [X]’s father there is so much that I have and that I am going to contribute to his life and much of this comes down to spending time in each other’s company, doing things together.
114. I want to be engaged in [X]’s day to day life always.
115.The arrangement that I have proposed is necessary to ensure that I have a meaningful involvement in [X]’s life. I have always tried to spend as much time with [X] as possible. We have a strong father-son bond and spending more time together will continue to strengthen this.[19]
[19] Ibid at [113]-[115]
In cross-examination, the Father denied that he wanted the child to attend a Catholic school and have a Catholic education. He denied that he had agreed that the child should be enrolled at [C] Catholic Primary School. He said that he had changed his mind after he swore his affidavit in July 2010 and now believed that the child should attend [K] Catholic Primary School. He said that [K] School was more convenient for both parents and for [X].
Mr Maurice asked the Father whether he agreed that when he became angry he could not control himself, but he denied that. The Father was asked whether he conceded that he had a problem managing anger and he said that he had decided that he had such a problem about three or four months previously, when he spoke to a counsellor. He continued to have counselling with Ms L and had seen her as recently as a week before.
The Father agreed that in a telephone conversation with the Mother he had called her “a whore” and said that he regretted doing so.[20]
[20] Transcript 23.7.2010 page 81 at 26-28
The Father also agreed that he had called Mr O a “coward” and may have called him a “faggot”.[21]
[21] Ibid page 84 at 37-43
The Father stated that he had gone to the Mother’s home to complain about what he saw as her lack of cooperation about holiday arrangements, which involved his preventing the Mother from closing the front door and led to Mr O telephoning the police.
Mr Maurice asked the Father about various text messages he had sent to the Mother, in which he had called her “adulterer” and other derogatory terms such as “infidel”, “filth” and “dog”. The Father did not deny that he had used that terminology, nor did he deny that he had sent her texts saying:
If you didn’t think with your c-[22], my son would be watching the grand final with his dad…
Then again, if you didn’t think with your c-[23], you wouldn’t have ruined so many lives.[24]
[22] The word was spelled out in full in the text and in the transcript but has been modified for the purpose of this decision
[23] Again the spelling has been modified for the purpose of this decision
[24] Transcript 23.7.2010 pages 100-101
The Father also agreed that the same evening he had sent the Mother a text message saying:
Four years ago you gave me my son. Now you’re just another womb breeding mongrels, you dirty, filthy whore.[25]
[25] Transcript 23.7.2010 page 103 at 20-21
The Father’s explanation for these messages on that occasion was:
Once again, I was watching the grand final that night with my cousin and why I sent those particular things, I was disappointed because my son wasn’t there to watch the football with and I had asked, and there was no flexibility for any change, so – and Ms Langan’s continual, you know, holiday junctions (sic) with the consent orders absolutely provided me frustration since the outset.[26]
[26] Transcript 23.7.2010 page 103 at 41-46
The Father relied on the evidence of a friend, Ms B, who affirmed an affidavit on 13th July 2010. Ms B deposed that she had known the Father for approximately seven years. She deposed that she had observed the Father’s interaction with his son on a number of occasions.
Ms B described the Father as “a committed and loving father”.[27] She stated that she had never witnessed the father belittling the Mother in front of the child. She referred to the text messages, saying:
14.I have read some of the text messages sent by [Mr Thurston][28] to Ms Langan and, although I do not condone his behaviour, it appears that they were sent by an emotionally raw person who was completely devastated and acted outwardly.
15.[Mr Thurston] wears his heart on his sleeve and I believe his outbursts in the text messages were due to his shock at the breakdown of his marriage and his heartbreak.
16.[Mr Thurston] and I have discussed the text messages he sent to Ms Langan and I believe that he is remorseful for his actions…[29]
[27] Affidavit of Ms B 13.7.2010 at [7]
[28] i.e. the father
[29] Affidavit of Ms B 13.7.2010 at [14]-[16]
Ms B gave oral evidence. Mr Maurice, for the Mother, showed her some hard copies of text messages from the Father to the Mother. She said that she had read “one or two” of them before but many of the text messages she was shown were new to her.
Ms B said of the messages:
“I don’t condone what has transpired, but I also can’t say how someone feels two years later after a marriage separation”.[30]
[30] Transcript 23.7.2010 page 154 at 43-44
When asked her opinion of the Father accusing the Mother of being a prostitute Ms B said:
“It’s disappointing, what’s been said.”[31]
[31] Transcript 23.7.2010 page 154 at 46-47
Ms B said that she was not a mother of children herself and could not imagine the effect on the Mother of children of things like that being said about her.
The evidence of Ms B was not of great assistance, in light of the fact that she had only seen some of the text messages (she did not say which) and she had no particular knowledge or experience that would make her opinion on the Father’s text messages any more persuasive than that of anyone else.
The Father relied on the evidence of his father, Mr T, and his mother, Ms T. They were not required for cross-examination.
In his affidavit sworn on 13th July 2010, Mr T deposed that he sees his son and grandson every two or three weeks. He stated that he had a strong relationship with his grandson.
Mr T said in his affidavit that he had visited the Mother on 16th May 2010 at his son’s request, in an attempt to open lines of communication between them. The Mother invited him and he stayed for lunch. They talked about the child and the Mother asked him if he would watch [X] play [omitted].
On another occasion the Mother told him that he was welcome to see [X] any time but she felt that the child would be better off if he were to spend more time with her. The Mother offered to show him the texts his son had sent to her and expressed concern about his health.
Mr T expressed his shock at the text messages, stating:
I have seen some of the text messages sent by [Mr Thurston] to [Ms Langan] and I say they are totally unacceptable and I am shattered. I cannot believe my son would have done that. I cannot start to imagine what he must have been feeling for him to write these messages.[32]
[32] Affidavit of Mr T 13.7.2010 at [21]
He said that his son told him that he deeply regretted sending the text messages to his former wife. He also deposed that his son telephoned him at Easter and said:
“I have stopped sending Ms Langan inappropriate texts. I have sent her a text saying that I forgive her”.[33]
[33] Affidavit of Mr T 13.7.2010 at [23]
The Father’s mother, Ms T, deposed in her affidavit sworn on 29th October 2010 that she visited Sydney from Brisbane twice a year to see her grandson. She stated that she has a good relationship with her grandchild. After the Mother and Father separated, Ms T moved to Sydney and purchased a house with her son. The house has a self-contained apartment, in which she lives.
Ms T deposed that she sees her son and grandson regularly and observes them to have “a very close, caring relationship”.[34]
[34] Affidavit of Ms T 29.10.2010 at [14]
As to the text messages, Ms T stated:
I have seen some of the text messages [Mr Thurston] sent to [Ms Langan] and I say that I was disgusted by them, they showed a man who was very angry at the loss of his family.
The Father relied on an affidavit by Ms L, a Mental Health Social Worker who has treated the Father.
Ms L’s affidavit, affirmed on 8th July 2010, annexes a copy of her report dated 11th June 2010 to the Father’s treating general practitioner, Dr R. In that report, Ms L expressed the view that the Father was “most considerate of his son’s needs” and had “responded well” to focused psychological strategies.[35] She deposed that she had found no evidence of mental illness in her initial interviews with the Father and said that he had no history of mental illness.
[35] Affidavit of Ms L 8.10.2010 Annexure “A”
In cross-examination by Mr Maurice, who put to her that the Father had described the Mother as “repugnant and repulsive” as recently as about three weeks earlier, Ms L said that the person who was making those remarks was suffering from bereavement. She said she had no way of predicting how the Father would be at the present time. The cause of the Father’s anger was bereavement. She said that the Father had no suicidal thoughts, no delusions and no hallucinations.
Ms L reiterated that the Father does not have a mental illness. She said that she had no qualifications in child and family health; her qualifications are in adult mental illness. When asked whether she was capable to assess the Father’s parenting capacity Ms L said that it was not her role. She said that the father’s bereavement was not over.
Ms L seemed to experience some discomfort in giving oral evidence, which may be explained by the fact that she told the Court that she was not well. She was offered the opportunity to take a break from giving evidence but declined.
Both parents gave further evidence.
The Single Expert Report
The Single Expert Report was prepared by Dr B, a consultant clinical psychologist. For the purpose of preparing his report, Dr B conducted interviews with the following people:
a)the child (although this was limited because of his age and maturity level);
b)the Mother;
c)Mr O; and
d)the Father
The interviews and Dr B’s observations of the child interacting with each of his parents were conducted over a two-day period. Dr B also disclosed that he had read the various affidavits of the parties and the reports by Dr G[36] and Ms L.
[36] Dr G’s Report was not admitted into evidence.
Dr B gave oral evidence on 4th November 2010.
In his Report, Dr B described the main issue in dispute as:
…the desire of both parties to review the Court Orders dated 29.07.2008 and determine whether it would be in the child’s best interests to alter or maintain a shared parenting arrangement (50/50).[37]
[37] Single Expert Report paragraph [4]
Dr B identified the specific issues between the parties as:
a)Choice of school;
b)Parental responsibility regarding child’s health;
c)Parental communication; and
d)Holidays.
The Mother stated to Dr B that she did not want to stop [X] having a relationship with his father, because she was aware that he needed his father and she did not want to impact on that relationship. However, the Mother expressed concerns for stability in the child’s life once he started school and a desire for him to have a Catholic education.
The Mother said that she was seeking sole parental responsibility regarding the child’s health because of the Father’s actions in obtaining an “unnecessary blood test”[38] and having medication prescribed by a general practitioner who had had no previous contact with the child.
[38] Single Expert Report at [24]
Dr B stated that the Mother expressed concerns for [X]’s well-being and wanted the Father to seek psychiatric help because he had been “behaving increasingly bizarrely” and had been “constantly verbally abusive”.[39] The mother also expressed significant difficulties with communication with the Father.
[39] Ibid at [26]
Dr B administered a psychological test to the Mother, the Paulhus Deception Scale, which measures the tendency to give socially desirable responses. The Mother’s responses indicated a high tendency towards social conventionality.
Dr B also administered tests to gain insight into the nature of the Mother’s relationship with [X] and the quality of her parenting capacity. He noted from her overall profile “a problematic parental alliance” between herself and the father.[40]
[40] Ibid at [35]
The Father was described as “compliant and cooperative” throughout the assessment, appearing assertive but “often seemed uneasy”.[41]
[41] Single Expert Report at [41]
Dr B questioned the Father about his psychiatric history and noted that he had been diagnosed with depression after the separation and continued to be treated with medication. Although the Father initially denied any other psychiatric history, he later revealed that:
…he attempted to kill himself in his 20”s as a result of a relationship breakdown ‘by cutting his throat’. He indicated he was hospitalized and the wound required suturing. He remained uninformative as to whether there was any psychiatric involvement with this admission.[42]
[42] Ibid at 48
The Father told Dr B that he wished to continue the equal shared parenting arrangement established by the earlier Consent Orders, which he considered to be in his son’s best interests.
The Father described to Dr B his concerns about his son’s education, the number of times that the child had suffered from colds, and the frequency and length of the holidays which the Mother takes which encroach upon his time with the child.
Dr B administered various psychological tests on the Father. He noted that the Father’s responses to the questions in the Paulhus Deception Scale “were found in the very much above average range, suggesting that Mr Thurston was seeking to overly distort the nature of responses he provided. Individuals who score high on those measures tend to portray themselves in an exaggerated way and are sensitive to situational demands.[43]
[43] Ibid at 62
Dr B administered tests to the Father, as well, to gain insight into the nature of his relationship with his son and the quality of his parenting capacity. He described the Father’s performance as “in the problematic range”, saying that:
This profile entails lack of cooperation or mutual parental agreement. There is an absence of communication and mutual respect between the parenting partners which could suggest dissimilar parenting approaches and parenting stress experienced as a result.[44]
[44] Single Expert Report at [69]
Dr B described the child [X] as “very active and sociable…well spoken for his age”.[45] He said that he loved playing with his half-sister. He expressed no preference for one parent’s household over the other and spoke positively of his relationships with his mother, his father, his stepfather, his grandmother and his half-sister.
[45] Ibid at [71]
The impression gained by Dr B about [X]’s relationships with each parents was that:
Overall, [X] displayed a strong positive rapport with both parents throughout the duration of the observation periods on both sessions.[46]
[46] Ibid at [89]
Dr B interviewed Mr O, describing him in positive terms:
…polite and cooperative…well spoken...assertive, reasoned and articulate in his responses.[47]
[47] Ibid at [91]
Dr B described the parties as having “an extremely problematic and highly conflicted parental relationship…there was a lack of mutual cooperation and respect from both parents and complete disagreement when it comes to decisions such as selecting a primary school for [X] for next year.”[48]
[48] Ibid at [102]
It was Dr B’s recommendation that both parents should complete a multi-session educational parenting post-separation program. He further recommended that the Father should undertake an accredited anger management program.
Dr B recommended that:
In high conflict matters such as this, I would suggest the most likely outcome will be a parallel-parenting modal where each party simply ‘parents’ [X] in their chosen manner while on their time.[49]
[49] Ibid at [129
He described three options for the Court to determine:
i)Shared time and shared parental responsibility to continue;
ii)Shared time to continue but the Court allocates parental responsibility to a parent on critical matters such as schooling, religious involvement and health-care decisions; and
iii)Majority care assigned to one party along with majority decision-making.
Dr B was cross-examined by counsel for each parent. Although he noted that there appeared to have been a reduction in insulting behaviour and the use of expletives, he expressed the view that there was no way of making a 50/50 share arrangement work without a reasonable level of communication. He described a problem for children in being enmeshed or surrounded by conflict and an independent arbiter needs to make a decision. The Court would have to step in and directly allocate the majority of responsibility and care to one person.
Conflict between his parents will affect the child’s identity formation and would impact on the child’s own perception of self.
Dr B acknowledged that the Father has undertaken anger management courses but felt that he still had a significant amount of work to do to understand his conduct. The material would suggest that what insight into his behaviour the Father had gained has been minimal.
In cross-examination by Mr Watkins, for the Father, Dr B reiterated the view he expressed in his report (at paragraph 119) that he enjoyed spending time with both parents and living in both houses, that not much weight should be given to [X]’s views, because of his young age. He confirmed, however, that [X] has a close and loving relationship with his father.
Dr B noted that the shared care arrangement between the parents had been in place for two years or so and that to alter this arrangement will have an impact on the child. It might probably upset him.
As to shared parenting, Dr B opined that the closer one gets to an equal shared parenting arrangement, the greater the need for cooperation to make those arrangements work. The principal requirements are mutual cooperation and cooperation.
Submissions
Mr Maurice of counsel submitted for the Mother that the Court would have been impressed with the insightfulness of Dr B, who approached his task with impressive neutrality.
He submitted that the Mother was a candid and straightforward witness and Mr O was a very impressive witness.
The paternal grandparents had not been cross-examined. From their affidavits, they viewed the Respondent Father through rose-coloured glasses.
It was submitted that the Father continued to show the oppositional personality that was put to Dr B. There was no indication, from his more recent attitude, that the Father had changed his attitude.
Mr Maurice submitted that the equal shared parenting arrangement cannot be sustained. The parties cannot agree on matters relating to the child’s health or education.
There was no evidence that the Father had gained any insight into his behaviour. He agreed that he had sent the Mother a text message that she was “repulsive”.
Mr Maurice submitted that the Court disregard Ms L’s evidence. She had ultimately admitted that she was not an expert in the areas where she gave her opinion. Her evidence did not really assist the Court.
There is no suggestion that [X] has a poor relationship with his father or that his father cannot look after him. However, there is a risk that the ongoing conflict between the parents will affect the child’s mental health.
Mr Maurice said that it was impossible to imagine the two parties agreeing on anything.
Mr Watkins of counsel submitted for the Father that reducing the child’s time with his father could not be seen to be in his best interests. He conceded that any Rice & Asplund[50] issue had been overcome.
[50] (1979) FLC 90-725
It was submitted that the Mother’s credibility was suspect, in that she would either say things to assist her case that were untrue or would overstate the situation. Reducing [X]’s time with his father would not prevent or reduce the conflict between the parents. The suggestion is that the 50/50 shared parenting should continue, but that is should be on a week-about basis with changeover occurring at the child’s school.
As to the vexed issue of holidays, Mr Watkins submitted that the Father should be given lengthy block periods with [X].
Mr Watkins submitted that the Court should not overlook the fact that the child’s paternal grandmother lived in a self-contained flat at the Father’s residence. [X] has a close relationship with his grandmother which should be maintained.
In reply, Mr Maurice submitted that there has been a significant change in the circumstances since the Consent Orders were made in the Family Court. There is a need for the Court to intervene, otherwise the consequences for the child would be “quite dreadful”.
He submitted that there should be proper notice given by the parties as to proposed holidays. It was suggested that during the school term that the child should spend an extended weekend with the Father in the first week of the fortnight with one overnight during the second week.
The Relevant Law
The objects of Part VII of the Family Law Act are set out in subsection 60B(1) of the Act:
The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful in their lives, to the maximum consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them to achieve their full potential; and
(d)ensuring that parents fulfil their duties, and met their responsibilities, concerning the care, welfare and development of their children.
The reasons for this decision have been prepared with those Objects firmly in mind.
Section CA of the Family Law Act requires the Court, in deciding whether to make a particular parenting Order, to regard the best interests of the child as the paramount consideration (see also section 65AA).
A Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC. I have done so in this case and will refer to those matters that are relevant.
The Court will consider the views of the child concerned under paragraph 60CC(3)(a) where the child is of sufficient maturity for those views to be expressed. The weight to be given to those views is a matter for the Court, depending on the age and degree of maturity of the child. The child will not be required to express any view (s.60CE). However, the Court may consider anyt6hing contained in a report given to the Court under subsection 62G(2).
I am satisfied that the Single Expert Report from Dr B is given to the Court under subsection 62G(2).
Subsection 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in cases of abuse or family violence (s.61DA(2)) and it 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 (s.61DA(4)).
If the presumption of equal shared parental responsibility does apply, then the Court is required by section 65DAA to consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with each parent (subsection 65DAA(1)) or, failing that, whether it is in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent (subsection 65DAA(2)).
The term substantial and significant time is defined by subsection 65DAA(3) and must include:
a)days that fall on weekends and holidays; and
b)days that do not fall on weekends and holidays.
Substantial and significant time allows the parent to be involved in:
a)the child’s daily routine; and
b)occasions and events that are of special significance to the child.
It must also allow the child to be involved in occasions and events that are of special significance to the parent (see s.65DAA(3)(c)).
The decision in Rice & Asplund[51] is authority for the proposition that a court should not lightly entertain an application to reverse an earlier parenting order. The Court would need to be satisfied that there is some changed circumstance that would justify such a step or some factor that was not disclosed at the previous hearing that would have been material. There should be circumstances that require the Court to consider afresh how the welfare (or best interests) of the child should be best served (see also Freeman & Freeman[52]; N & M[53]).
[51] supra
[52] (1987) FLC 91-857
[53] [2003] FMCAfam 29
Conclusions
Dealing first of all with the Rice & Asplund issue, the Applicant mother seeks to vary parenting Orders made by consent in the Family Court on 29th July 2008. There are three matters that are relevant:
a)the Mother has brought evidence and the Father has conceded that over a long period since the Orders were made the Father has forwarded to the Mother a considerable number of text and email messages addressing her and her current husband in scurrilous and derogatory terms;
b)the parties have provided evidence of their inability to agree about such important matters relating to their child as his health care, his schooling, and the timing of their respective holidays away with the child; and
c)the Consent Orders provided that the Court noted that the parties agreed to review the Orders before the child [X] commenced attending primary school, which he now has done (see at [7] above).
It was always in the parties’ contemplation that the parenting Orders would be reviewed at the time the mother’s application was heard.
I am satisfied that the test in Rice & Asplund has been met. A review and a reconsideration of the previous parenting Orders is justified on the evidence.
The best interests of the child remain the paramount consideration. The best interests of the child dictate what proper parenting Orders should be made and whether the child’s parents should have equal shared parental responsibility for him. In each case, the Court must look to the matters in subsections 60CC(2) and 60CC(3) of the Act.
I am satisfied that on the evidence, especially from the Single Expert of Dr B, that there is a benefit to [X] in having a meaningful relationship with both of his parents. Dr B reported [X] to have strong attachments with both parents. He appeared to enjoy spending time with both of his parents.
There is no evidence to persuade the Court that [X] is at risk of physical harm at the hands of either parent or in either parent’s household. There is no evidence of any neglect of the child, far from it, or any abuse.
It is a matter of concern that the father has directed a stream of abuse at the mother and, to a lesser extent, at her present husband, the child’s stepfather. There have been harsh words directed towards the father, at least by Mr O. Some of this abuse has certainly taken place in the presence or hearing of the child.
Despite the Father’s protestations of regret, I am not persuaded that he has entirely refrained from addressing remarks to the Mother of a nature that only be characterised as appalling. The Father’s lack of insight into his own behaviour is exemplified by his reported remarks on the telephone to his father, as set out in the affidavit of Mr T:
“I have stopped sending Ms Langan inappropriate texts. I have sent her a text saying that I forgive her”[54] (emphasis added).
[54] Affidavit of Mr T 13.7.2010 at [23]
Dr B has expressed concern in his evidence about the risk to the child’s identity formation and his perception of self by being surrounded by parental conflict.
There is a need for the child’s protection from psychological harm to limit the interaction between his parents and to reduce the opportunity for conflict between them.
[X] has expressed positive views about the living arrangements in both of the parents’ households. He seemed to Dr B to enjoy spending time with each parent and to be relatively content wit the current living arrangements.[55] However, Dr B has counselled about placing too much weight on the child’s expressed views, due to his age and level of maturity. He did concede that a change in the current arrangements, to which he has become used, may well cause him some distress.
[55] Single Expert Report at [120]
There is clear evidence that [X] has strong attachments with both of his parents. He also appears to have close bonds with his stepfather, his half-sister and his paternal grandmother.
The Mother has expressed a wish not to stop [X] having a relationship with his father. There is evidence from Mr T that the Mother has told him that he is welcome to see [X] at any time.
For his part, the Father told Dr B that he wished to maintain the current shared routine and that [X] needs both his parents.[56] However, his abusive language towards his former wife raised some doubt about his willingness to encourage the child’s relationship with her.
[56] Single Expert Report at [53] - [54]
On the other hand, the Father’s complaints that the Mother schedules her holidays at times that suit her whilst disregarding the time that [X] should be spending with him suggests a lack of willingness on her part to foster and encourage the child’s close and continuing relationship with him.
The solution appears to be for the Court to step in as an independent arbiter, as Dr B suggests, and specify strict arrangements about when [X] will spend holiday time with each parent. The Consent Orders of 29th July 2008 were drafted at a time before [X] had started school, so school holidays were not an issue.
The Court must consider the likely effect of any changes in the child’s circumstances, including any separation from either parent or other people (including grandparents) with whom he has been living (paragraph 60CC(3)(d)).
The Father wishes that there should be no change to the time spent, except it was submitted that the arrangement should change from the current arrangement of Monday to Wednesday in Week 1 of each fortnight and Monday, Tuesday, Saturday and Sunday of Week 2 with the Mother to a straight week about arrangement.
The Mother wished to go to an arrangement where the child spends the majority of time with her, and with the Father on alternate weekends from after school Friday until 7:00pm on Sundays. This was modified by a submission from her counsel that the child should spend an extended weekend with the father during the first week of the fortnight with an overnight during the second week of the fortnight.
Dr B has given evidence that a change to the current routine would have an impact on the child and might upset him. However, each parent is now proposing a change to the current regime.
The practical difficulty and expense of the child should not be difficult, in view of the fact that the parents do not live far from each other. However, the degree of conflict between them creates difficulty. The Father has deposed that he did not want the Mother to telephone [X] when the child is spending time with him, because it is unsettling for the child. This does not accord with the views of Dr B, which suggest that the child is content to live in either household and is quite relaxed about moving from one parent to the other.
A reduction in the time the child spends with his father would also mean a reduction in the time he spends with his paternal grandmother, with whom he appears to have a close bond. It is relevant that [X] only has paternal grandparents, as both of the Mother’s parents are deceased.
There is much to be said for a strong relationship between children and their grandparents (see Bright & Bright v Bright & Mackley[57]; Esmond & Irving[58] ).
[57] (1995) FLC 92-570
[58] [2011] FMCAfam 642
There does not appear to be any issue of the capacity of each of [X]’s parents and his paternal grandparents to provide for his physical and intellectual needs. However, the parents’ continuing conflict raises some concerns about [X]’s future emotional needs. Against this, [X] appeared to be oblivious about the Court proceedings, which indicates that to some extent he has been shielded from his parents’ litigation.
Dr B expressed this view:
It is clear that given the level of conflict between the two parents which limits their capacity to reach consensus decision-making, the Court will be left with limited choice other than to assign majority responsibility to one parent over the other regarding specific issues – i.e. health-care, education, religion, or alternatively the Court will need to make the decisions on behalf of both parents in the form of Court Orders.[59]
[59] Single Expert Report at [109]
[X] is a little boy who was born [in] 2005. He is now six years and six months old. He appears to be of normal maturity for his age:
He came across as a charming boy with good verbal skills, motor skills, and energy level appropriate for his age.[60]
[60] Ibid at [119]
Dr B expressed the view that both parents, in their attitude to [X] and to the responsibilities of parenthood, demonstrated awareness and insight into being a parent and their responsibilities as parents. However, they appeared to be entrenched in their desire to take different approaches to [X]’ education and religious upbringing.
There are no family violence orders in force, although there have been instances of hostility between the parents and between the Father and Mr O. Surprisingly, the Mother did not pursue the question of an Apprehended Violence Order against the Father with any vigour, despite the plethora of derogatory text messages that he sent to her.
It would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. In my view, the current parenting Orders need to be varied. They have been shown to be inappropriate and not in the child’s best interests.
The Orders need to be re-drawn to allow for decisions to be made about major long-term issues affecting the child, such as education, health, religious observance and holidays without conflict. The parties have demonstrated an inability to communicate which is unlikely to improve in the foreseeable future.
The Father still lacks insight into the effect of his abusive behaviour towards the Mother. His apologies are made in affidavits, or in expressions of regret to his parents. There is no evidence that he had apologised to his former wife. Rather, he has produced “cheer squad” affidavits, such as that of Ms B, seeking to downplay and excuse the effect of his stream of derogatory comments.
The Father said to his father that he had ceased sending inappropriate texts to the mother (see at [83] and [156] above). He sent her a text saying that he forgave her. He did not provide any evidence that he asked her to forgive him for the stream of vituperation that he has directed towards her.
As a result, I am persuaded that it is no longer in this child’s best interests for his parents to retain equal shared parental responsibility for him. I am equally persuaded that the child spending equal time with each of his parents is no longer in his best interests, whether it is in the current three days, four days, two days, three days and two days each fortnight or in the week about arrangement the father now proposes.
Proposed Orders
The lack of communication between the parties and my doubts about the Father’s insight into the destructive effect of his behaviour on his relationship with the Mother have led to the view that the Court should order that the Mother is to have sole parental responsibility for the child [X].
There will be orders to vary the time that the Father spends with [X], although the drastic reduction proposed by the Mother in her original application would not appear to be in [X]’s best interests because of his close attachment to his father and his grandmother.
The present Orders contain too many changeovers, four each fortnight. One method of reducing conflict is to reduce the number of occasions when changeovers occur, which can result in giving the child a longer block of time with each parent. The Father has submitted that the equal time arrangement should remain, but the timing of his submission raises doubts about the sincerity of his proposal. Notwithstanding the fact that the notations to the original referred to the consideration of a week about option:
A. The Court notes that prior to [X] commencing primary school the parties will consider whether it would be in the child’s best interests to commence a shared parenting arrangement whereby [X] lives with each parent in alternate weeks
the Father did not in any of his documents raise this option as a way of reducing the conflict between the parties.
The Father’s Response to Amended Initiating Application filed on 10th February 2010 merely sought an Order:
That the orders of the Family Court of Australia made 29 July 2008 be confirmed.
At no stage in his affidavit evidence or in his oral evidence to the Court did the Father ever express a desire to consider the alternate week option. It was not until after three days of evidence, including a Single Expert Report that does not portray him in a flattering light, that the Father’s counsel in a final submission proposed the alternate week arrangement.
The Father has chosen to run his case by:
a)downplaying and seeking to excuse his verbal attacks on the Mother;
b)blaming the Mother for being uncommunicative; and
c)blaming the Mother for putting her holiday plans before his time with the child.
The evidence clearly demonstrates that the equal time arrangement does not work. Changing the arrangement to alternate weeks will not be sufficient – it is a case of “too little, too late”.
That said, I am of the view that it is in the best interests of this child and reasonably practicable to make an order to provide for [X] to spend substantial and significant time with his father. It is, of course, not necessary for there to be an order that a child’s parents are to have equal shared parental responsibility for a child before an order can be made for substantial and significant time with a parent.
To my mind, the order to be made would provide that [X] is to live with his mother and spend substantial and significant time with his father. Changeovers should be at school, as far as possible, to avoid the parents having to meet any more frequently than necessary.
Accordingly, during school terms [X] will spend from after school on Wednesday until the commencement of school on Tuesday with his father in alternate weeks. In that way, he will spend weekend days and public holiday Mondays with his father. He will also spend defined time during the school holidays with his father, being half the Autumn, Winter and Spring school holidays and a fixed block of time in January, defined by dates.
The above arrangement is intended to ensure that his father can be involved the child’s daily routine, whether it be school or sport or other weekend activity.
The Father must spend time with [X] on days that are of particular significance to him, such as the child’s birthday. In my view, Father’s Day and Mother’s Day, and parents’ birthdays, are both of particular significance to the child as much as of special significance to the parent.
It follows that Christmas Day should be shared between the parents.
The Father seems to attach particular significance to ANZAC Day, although he gives no evidence of ever having served in the Australian Defence Force. He deposed that he likes to attend the ANZAC Day ceremony at [omitted] each year and take [X] with him. It would appear to be a day of special significance to him.
The Mother gives no evidence that ANZAC Day is of any significance to her.
Whilst this point was not specifically argued, the child’s grandmother lives in the same residence as the father and her birthday, whenever it may happen to be, is likely to be a day of special significance to the father. It would be appropriate for [X] to spend some time with his grandmother on her birthday.
Conversely, the birthdays of [X]’s half sister, [Y], and his stepfather, Mr O, are days that would be of particular significance to the mother and likely to be of some special significance to [X].
Needless to say, there will be some injunctive orders forbidding the sending of vituperative and derogatory messages to the mother or about her immediate family.
Further Submissions
Production of this judgment has unfortunately been delayed due in part to my recent illness and hospitalisation. No application has been made by either party to re-open, but I will offer the parties an opportunity to make submissions about any circumstances that may have arisen since the hearing concluded.
I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 19 April 2012
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