Legg and Cleary

[2014] FCCA 1545

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEGG & CLEARY [2014] FCCA 1545

Catchwords:
FAMILY LAW – Parenting dispute about 6 year old child – very serious difficulty in parents’ communication – additional problems caused by over-involvement of father’s partner in child’s life – family report recommending increase in time spent with father – parents ordered to attend counselling to improve communication – orders made as sought by Independent Children’s Lawyer. 

Legislation:  

Family Law Act 1975 (Cth), s.60CC

Goode v Goode [2006] FamCA 1346

Applicant: MS LEGG

Respondent: MR CLEARY

File Number: MLC 5608 of 2013

Judgment of: Judge Burchardt

Hearing dates: 12 & 13 May 2014

Date of Last Submission: 13 May 2014

Delivered at: Melbourne

Delivered on: 24 July 2014

REPRESENTATION

Counsel for the Applicant: Mr Stanley

Solicitors for the Applicant: Marcou & Associates Pty Ltd

The Respondent: In person

Counsel for the Independent Children’s Lawyer: Mr Arnold

Solicitors for the Independent Children’s Lawyer: Cathleen Corridon & Associates

ORDERS

1. THAT the mother and father have equal shared parental responsibility for the child X born (omitted) 2008 (“the child”).

2. THAT the child live with the mother and spend time with the father as follows:

   (a)Each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday until the commencement of the first school term in 2015 when time will commence each alternate weekend from the conclusion of school Thursday until the commencement of school Tuesday;

   (b)Each alternate Wednesday from the conclusion of school to the commencement of school on Thursday;

   (c)For half of the school holidays; and

   (d)For the mother and father to facilitate phone contact upon the child’s request.

3. THAT the child spend time with the father from 5pm Saturday until 5pm on Father’s Day when the child is not already spending time with the father and that the normal arrangements be suspended during such times.

4. THAT the child spend time with the mother from 5pm Saturday until 5pm on Mother’s Day when the child spending time with the father and that normal arrangements be suspended during such times.

5. THAT the child spend time with each parent on their birthday or the relevant step parent’s birthday from the conclusion of school to 7pm if the birthday falls on a school day and from 9am until 5pm if the birthday falls on a non-school day when the child is not in that parent’s care and that normal arrangements be suspended during such times, with the parents to confirm 14 days prior to the step parent’s birthday.

6. THAT the child spend time with each parent on the child’s birthday by prior mutual agreement between the parents, but failing agreement as follows:

   (a)In the event the child’s birthday falls on a school day, from the conclusion of school until 6pm with the parents they would not otherwise be with; and

   (b)In the event the child’s birthday falls on a non-school day, from 10am until 2pm with the parent who would not otherwise be with pursuant to these Orders.

7. THAT the child spend time with the mother or father as applicable on the dates of birth of the child’s siblings by prior mutual agreement between the parties, and failing agreement a written request be made and 14 days notice be provided to the other parents and the non requesting parent’s time will be suspended from 10am to 5pm for the child to attend his/her sibling’s birthdays and any missed time shall be made up with the parent who misses out on normal time.

8. THAT the child spend time with the mother from 2pm on Christmas Eve until 2pm on Christmas Day and with the father from 2pm on Christmas Day until 2pm Boxing Day 2014, and each alternate year thereafter and that normal arrangements be suspended during such times.

9. THAT the child spent time with the father from 2pm on Christmas Eve until 2pm on Christmas Day and with the mother from 2pm on Christmas Day until 2pm on Boxing Day 2014, and each alternative year thereafter and that normal arrangement be suspended during such times.

10. THAT the child spend time with the father from 2pm on Easter Saturday until 2pm on Easter Sunday and with the mother from 2pm Easter Sunday until 2pm on Easter Monday in 2015 and each alternate year thereafter and that normal arrangements be suspended during such times.

11. THAT the child spend time with the mother from 2pm on Easter Saturday until 2pm on Easter Sunday and with the father from 2pm on Easter Sunday until 2pm on Easter Monday in 2015 and each alternative year thereafter and that normal arrangements be suspended during such times.

12. THAT changeover on school days shall occur at the child’s school and on non-school days at (omitted) complex on (omitted), or at such other location as agreed upon between the parties. 

13. THAT for the purposes of changeover the mother and father or their partners or their nominated agent shall personally attend and the parties enter into agreement about acceptable agents prior to changeover save in an emergency.

14. THAT each parent keep the other parent informed of their current address and telephone number and inform the other of any change of same in writing as soon as the change is known or within 24 hours of a change being made.

15. THAT in  the event that the mother and father is not available to care for the child for any period exceeding 48 hours during times that she is in their care, they shall immediately notify the other parent and provide a telephone contact number where the child can be contacted and provide the other parent with the first option to care for the child. 

16. THAT the parents keep each other informed of any medical emergency or serious illness or significant injury suffered by the child whilst in their care.

17. THAT each parent shall be authorised to obtain any information available in relation to:

    (a)The child’s education and schooling; and

    (b)The child’s health and medical issues. 

18. THAT the parent utilise the communication book to discuss issues in relation to the child’s care, welfare and development including issues such as medical, school activities, caretaking, behaviour, scheduling, discipline and other events and to be written in by the parents only and the parents otherwise communicate by email and SMS text message and the parent’s ensure that X’s school communication book remain in her school bag.

19. THAT each parent and their agents are hereby restrained from denigrating the other parent or the other parent’s family members of parents in the hearing and/or presence of the child and this including discussing this litigation with or within the hearing of the child,

20. THAT each parent and their agents are hereby restrained from physically disciplining the child.

21. THAT each parent advise the other parent in writing that they are not able to care for the child due to medical or health reasons and offer such times to the other parent in the first instance and that makeup time not be offered in such circumstances.

22. THAT each parent advise the other parent in writing as soon as practical before taking the child on a holiday and inform the other parent their location and contact details during such time. 

23. THAT each parent ensure that the child attend at school on time. 

24. THAT pursuant to paragraph 2(a) hereof, any increase in the father’s time with the child be conditional on the parents engaging a counsellor to address the communication issues. The step parents also need to participate in the counselling to manage their roles and ensure consistency in the two households. 

25. THAT the father Mr Cleary engage in a parenting program to address the issues regarding his parenting strategies, such as Anglicare, or another support service. 

26. THAT the child X be referred to a counsellor through her school. 

27. THAT the parents agree on and attend one medical clinic in relation to the child and if agreement cannot be reached the parents will only attend on the (omitted) Medical Centre for medical attention for the child. 

28. THAT the Independent Children’s Lawyer be discharged.

29. THAT all extent applications be dismissed and the matter be removed from the pending cases.

30. THAT pursuant to Section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and the details of who can assist the parties adjust to and comply with an Order are set out in the fact sheet attached hereto and these particulars are included in the Orders.

IT IS NOTED that publication of this judgment under the pseudonym Legg & Cleary is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 5608 of 2013

MS LEGG

Applicant

And

MR CLEARY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting dispute about the best interests of X, born on (omitted) or (omitted) 2008 (both dates are given in the parties’ materials).  X presently spends four nights a fortnight with her father, who wishes to increase that time.  The mother does not wish to increase the time and wishes the extant orders to continue.  The Independent Children's Lawyer suggests an increase to a nine-five arrangement, commencing 2015 and detailed orders to try and improve the appalling communication problems between the parents. 

2. For the reasons that follow, I am going to make the orders sought by the Independent Children's Lawyer.

Background – agreed facts

1. The mother was born on (omitted) 1986 and the father on (omitted) 1987.  Their relationship appears to have begun in about 2005 (see family report dated 5 May 2014, paragraph 1) or November 2006 (see mother's first affidavit filed 10 July 2013, paragraph 74).  It is agreed that they separated in early 2010. 

2. The respondent father is married to Ms L and lives with her and her son, A, born (omitted) 2008, together with their own child, B, born (omitted) 2012.  They expect their second child in August 2014. 

3. The mother married Mr D on (omitted) 2013.  She and Mr D have a two year old son, Y, born (omitted) 2012.  Mr D and Ms Legg have, however, recently separated. 

4. The parties adopted a communication book in 2013 as a result of deteriorating relations between them but this does not seem to have been particularly helpful.  They have also undertaken various endeavours to improve their capacity to communicate which, quite clearly, have not produced much if any success.  There have been two Recovery Order applications made, resulting from either deliberate over-holding by the father or communication difficulties between the parents, according to whose version one accepts. 

5. The striking thing about this case is that although the parties have all too much to say in the litany of complaints each makes about the other, most of the complaints they make, when seen in perspective, are relatively minor.  The outcome contended for by the Independent Children's Lawyer, which largely but not wholly adopts the position of the Family Report writer, is so clearly the best option for X, that these reasons for judgement will move relatively briefly over the parties' evidence. 

The affidavit and oral evidence of the parties

1. As already indicated, the parties have a litany of complaints against each other.  Each accuses the other of being controlling and uncooperative.  Each makes accusations that the other has acted inappropriately in the exercise of parental responsibility by excluding them.  Each asserts a desire for better communication but blames the other for its absence.  Each makes criticisms of the care of X while spending time with the other parent, albeit that these, in the main, involved relatively minor considerations to do with X's feeding and cleanliness regime.  There is a complaint about X suffering from nits, which is almost asinine in its banality. 

2. The primary thrust of the mother's affidavit material relates to two matters.  The first is an incident in March 2013 when X returned from time spent with her father with a bruise upon her leg.  The mother went to very great lengths to explore this issue, referring it to both the Police and the Department of Human Services (“DHS”).  The matter was even referred to the (omitted) Hospital for a specialist report, which the mother obtained under Freedom of Information, and which constitutes annexure L-1 to the mother's affidavit filed 21 March 2014.  That report concludes, in effect, that contrary to the father's assertion that X was injured when she ran into a bed, the child had been slapped, more probably than otherwise, sufficiently hard to produce bruising. 

3. The other major thrust of the mother's affidavit material was that the relationship between her and the father, which was amicable following separation initially, deteriorated following the arrival upon the scene of the father's new partner, subsequently his wife.  In broad terms, it was put that this new partner, Ms L, had interfered inappropriately in the communications between the father and mother and, more particularly, had usurped a far too significant role in the parenting of X. 

4. The broad thrust of the father's affidavit material was a denial of the mother's assertions of violence inflicted on X, particularly in the March 2013 incident, together with assertions that there had been no improper derogation of his parental responsibility to his new partner.

5. Although this is a broad sweep of the parties' affidavit materials, it is in the particular circumstances of this case in my view appropriate, although it should be noted that I have read and paid proper attention to all the material filed.

6. It should be noted that several Contravention Applications have been filed which even on their face show a preoccupation with relatively trivial infractions of the then extant orders and, in my view, go to reinforce, ultimately, only the poor communication between the parties.  The mother’s Notice of Child Abuse, Family Violence, or Risk of Family Violence Form 4 filed on 18 March 2014, in my opinion, is best left without further comment. 

7. The mother has filed affidavits from the paternal grandmother and the maternal grandmother upon which, in my view, ultimately very little turns.  Both Mr D and Ms L have filed affidavits supportive of their partners.  It should be noted that it is common cause that to an extent each parent has acted unilaterally in respect of X. 

8. Two more significant such occasions as found by the Family Report writer involved the father ceasing X’s visits to a well-being officer at her school, in the first instance, and in the second, enrolling X in speech therapy, both decisions taken without any reference to the mother at all.  The Family Report writer also noted that Ms L had taken X to the doctor on at least one occasion rather than the father. 

The evidence given in Court – the mother

1. In opening, counsel for the mother had made the point that the father failed to comply with the requirement to get the child to school on time when she spent time with him on Wednesday night until Thursday. 

2. The mother was called and adopted her affidavits as true and correct.  Under cross-examination by the father, who is self-represented, the parties essentially traversed the minutiae of X’s life with each of them in terms in which neither agreed with the other.  This was scarcely surprising in the circumstances.  I do not propose to detail the various, in my view, minor matters with which they dealt. 

3. I note that the mother conceded that she was in the practice of smacking X before Court orders were made to prevent this and that now if X is naughty she yells at her but this does not occur often.  The mother conceded that she had recently separated from her husband, Mr D, but she discussed this with him after the children went to bed.  The cross-examination about the actual night of separation, in my view, condescended to questions which must be described as rather petty. 

4. Under cross-examination by the Independent Children’s Lawyer’s counsel the mother said she had no idea what would “help us stop fighting”.  They had been to mediation with a lawyer 12 months ago.  She said she was happy to do counselling with the father.  She said X had told her that the father’s wife (Ms L) had told X she could be naughty with her (the mother). 

5. When cross-examined about allegations X had been seriously misbehaving last year, the mother confirmed that X’s violence was short-lived only but that when she comes back from the father she has a lot of attitude.

6. The mother confirmed that it was the failure of the father to get X to school on time and X’s poor behaviour after spending time with the father that were the reasons for her desire for the father not to have any more time.  She said the father never gets her to school on time and the dates of absences in 2013 and 2014 were all the father. 

7. The mother confirmed that X’s behaviour was worse in September to October 2013 but has now died down.  There has been no swearing or violence since December 2013.  She said that there was no conflict at changeovers at the Police Station and the child walks through the Police Station doors on her own. 

8. I note that exhibit A1 and A2 tendered by the applicant relate to attendances at school of X and of A, respectively.  They show numerous late arrivals. 

The evidence given to the Court of Ms G

1. Ms G, the maternal grandmother, was called.  She adopted her affidavit as true and correct.  Under cross-examination by the father she said she agreed to attend changeover even though she was aware the father did not want her there.  She said she does not approach Mr Cleary’s wife at all but still has some relationship with the father who is civil.  She said an incident which had given rise to a Police report arose out of the conduct of Ms L, not her or the father. 

The evidence given to the Court of Ms M

1. Ms M was called and adopted her affidavit.  She is the paternal grandmother and it is regrettable and sad that she was prepared to give evidence against her own son.  It is clear that she is totally alienated from him and it is equally clear that this, in large part, comes from the arrival on the scene of Ms L.  The relationship is so poor that Ms L has cut her stepson out of a photograph, if I understood the evidence correctly. 

The evidence given to the Court of Mr D

1. Mr D was called.  His preparedness to attend and give evidence despite the recent end of his relationship with the mother does him credit.  In my view, neither his evidence nor the cross-examination was of any great significance.

The evidence given to the Court – the father

1. The father was called and was cross-examined by counsel for the mother about the school records showing late arrivals.  With one child in his household at school at (omitted) and the other at school in (omitted) he said it was sometimes the case that A was late.  I did not find his answers necessarily convincing. 

2. I note that the father said that his relationship with the mother was not amicable from November 2012 and had been quite shaky throughout.  That answer is clearly wrong.  It was clearly satisfactory at first (see paragraph14, Family Report). 

3. In relation to the March 2013 incident the father said that while various reports had been made, all investigations had been closed.  He was unable to recall the DHS substantiating a risk of emotional harm on X’s part in his household.  His answers about the bruised leg that X suffered, to the effect that he admitted to the Police smacking her and then her running into a bed were, in my view, evasive and unresponsive. 

4. He confirmed that the parties are unable to agree about counselling and cannot agree about school and have different doctors in each household.  He was cross-examined about X undergoing a blood test on 12 December 2013 and said he was not aware that consent of the mother was required.  He conceded that X’s behaviour was worse in December 2013.  At this time, Ms L had sent a text to the mother saying that X had oppositional defiance disorder.  He thought that it was appropriate that his partner have this measure of involvement.  I would interpolate and say that Dr I, Family Report writer, does not agree and neither do I. 

1. He was cross-examined about questioning X about adult issues and was, in my view, unable to satisfactorily explain himself.  It is clear that he does not understand questioning X in this way is not in her best interests. 

2. Under cross-examination by the Independent Children’s Lawyer the father said he would make sure that X gets to school on time.  He said that his own mother dislikes Ms L, as does everybody else, but that he supports Ms L’s actions. 

The evidence given in Court of Ms L

1. Ms L was called and led in evidence-in-chief by Mr Cleary.  She says she has a very good relationship with X and that the entire household is close.  She said it is her role when X is with them to ensure that she is well-loved and cared for and that her role was to support the father.  She conceded that she has a rocky relationship with X’s mother and that communication was not good. 

2. She said it was for parents to make decisions but that the mother had asked for her help when X was being difficult.  She said that X was concerned about wanting to see Mr Cleary and Ms L for more time because her mother might be upset if she knew this and that X was always concerned before going back to her mother.  She said that changeover at the Police Station can be pretty daunting.  The general tenure of Ms L’s evidence was self-exculpatory and to an extent accusatory of the mother. 

3. Cross-examination by counsel for the mother, while skilful, does not add much to the evidentiary picture.  Ms L denied that she was taking over parental responsibility or that she had overstepped the mark.  She said that the father took X for the blood screen not herself.  She said that she questioned the child generally only and had asked X questions about why she hit her mother only after the mother had told her about it. 

4. She was cross-examined about a DHS report in which it emerged that Ms L had taken a video of the child and said that she did not think this was wrong at the time.  Her answers in this regard were, in my view, unbelievable.  She said that asking why X was the way she was was not inappropriate.

5. She was cross-examined about text messages she had sent which had been exhibited to affidavit material of the mother.  One of these was to the effect the karma train would hit the mother hard when it arrived.  She said she meant it at the time.  She was concerned about lies in relation to the March 2013 incident and the mother lying maliciously about her. 

6. Two things were entirely clear from the cross-examination of Ms Legg.  First, she has far more influence over X’s life and, for that matter, her husband than she was prepared to admit.  Secondly, she is entirely hostile to the mother herself. 

The evidence given in Court of Dr I

1. Dr I was called and adopted her Family Report.  Under cross-examination by counsel for the mother she said that the overwhelming theme was conflict which leads to distress.  Both parents reported X’s emotional and behavioural distress which was clearly connected with the parental conflict.  X was exposed to this dispute and would not fare well because of it.  Medical care was a problem.

2. Dr I said that both parents need to have parental responsibility and need to communicate.  Both parties agree that the father’s new marriage is one of the sources of the conflict. 

3. Dr I said the father had a full sense of what was acceptable and was lulled into the impression he could concede areas of responsibility to his wife. She said if things do not change, sole parental responsibility may need to be considered. Until counselling occurs, it is hard to know if counselling would help, but the father was prepared to consider alternative options not previously considered. She said it was very important that both parents dropped the child off at school on time.

4. Dr I said that Ms L had undertaken responsibilities beyond what was appropriate and that they should be left to the father. 

5. When cross-examined about the observation at paragraph 49 of her Family Report that X had sought a nine-five regime with nine days with her father and five with the mother, she said that it was most unusual for a six year old to formulate such a proposition.  She said it was possible this came from the father’s household.  She said she was concerned that X had been interviewed with inappropriate questions and would be further concerned if the father and Ms L did not accept that this was inappropriate.

6. Under cross-examination by the father, Dr I confirmed that he had, indeed, said to her that he had passed parental responsibility to Ms L.  He had said that they did everything together for the children and that this was Dr I’s concern.  She said, “It’s your responsibility to take the child to the doctor.”

7. She said it was very unusual for a child saying nine-five.  She did, however, say she wanted more time with her father. 

8. Under examination by the counsel for the Independent Children’s Lawyer, Dr I said the biggest factor was counselling for the parents and that the current regime should continue.  The bond between X and A is important, but the top priority was parental interaction.  There should be no increase in time unless the parties get on better.  She said time can be reviewed if the parents cooperated and the parents should undertake a Parenting Order Program and have reportable counselling. 

Submissions of the Parties

1. Counsel for the Independent Children’s Lawyer proposed orders broadly as contained in the Family Report.  The orders should remain as they are for the present and there should be reportable counselling as recommended by Dr I.  It was submitted that the father has to step up and that Ms L has to take a back seat.  They should only be involved in counselling if the counsellor felt it appropriate. 

2. The time should be increased to five nights a fortnight with the father in January 2015, with the parties to discuss what would be the best arrangement.  Counsel pointed out that if X spends every Wednesday with her father, there would be six changeovers a fortnight and it would be better divided into two blocks.  Counsel adopted the proposal for a parenting order program as suggested by Dr I.  

3. Counsel went through the orders to be made by consent in the interrelated matter of (omitted) in detail. 

4. Counsel pointed out that the father has never been happy with a ten-four arrangement and that a nine-five arrangement would be better from this age on and likely to stop further proceedings.  The primary driver for this increase in time was the fact that X has asked for more time with her father. 

5. The father submitted that more time had been recommended by Dr I and he wanted more earlier than Dr I recommended.  He wanted nine-five now and six-eight in the future. 

6. Counsel for the mother referred to the Outline of Case filed on 8 May 2014.  He submitted that the parties’ conflict was taking a toll on X and that Dr I was overoptimistic.  He sought sole parental responsibility on the part of the mother and that she inform the father of decisions made, submitting that the father and Ms L simply do not get the child to school on time in 2014 and there were problems with A, also in 2013 into 2014.  Because the father starts work at 5.00 am, save on RDOs, no meaningful time would be lost. 

7. Counsel referred to the risk of psychological harm referred to in the DHS report and referred to the fact that the father and Ms L simply did not accept any difficulties arising from this nor, indeed, from the involvement of Ms L more generally.  Counsel submitted that while X said nine-five, this had been coached.  She is only six and her wish is less important, in any event.  It was submitted that X has a good relationship with both parents but the problem is the involvement of Ms L.

Statutory Pathway

1. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:-

   “Summary

   [65] In summary, the amendments to Pt VII have the following effect:

   1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

   7. The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends and holidays; and

   (b) the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11. The child’s best interests remain the overriding consideration.”

Application of the pathway

1. The Court’s first task is to decide whether there should be equal shared parental responsibility.  While Dr I said that if the over-involvement of Ms L does not decrease, it might be appropriate to consider an order for sole parental responsibility, this was not the recommendation she presently made. 

2. In circumstances where Dr I’s evidence, which I would note was given with all the assurance of a competent professional in her field of expertise, was clearly to the effect that the real problem is the communication difficulties of the parents, it is obviously in X’s best interests that the presumption of shared parental responsibility should be applied. 

3. There has been family violence, both in the sense that the mother admits smacking X in the past, and the father, despite his denials, clearly smacked X in March 2013.  However, in this case, there is no serious suggestion in my opinion that X is at risk of exposure to family violence in either household.  She is at risk of psychological harm if the parents’ communication difficulties are not addressed, but, in my view, the orders proposed by the Independent Children’s Lawyer will address this.  It is, therefore, clear, as I have already said, and repeat, that there should be an order for equal shared parental responsibility. 

The child’s best interests – Section 60CC(2)

1. No-one suggests that it is anything other than in X’s best interests to have a meaningful relationship with each of her parents.  Although there has been family violence, it is not such, in my view, as to require excessive emphasis in the circumstances of this case. 

The additional considerations – Section 60CC(3)(a)

1. X has expressed a view that she would like to spend nine nights per fortnight with her father and five nights with her mother.  She has also made it clear, in my opinion, in the light of Dr I’s evidence, that she would like to spend more time with her father, in any event.  These views must be given some weight, but X is only six years old.  She was clearly coached to the nine-five iteration, and the father and Ms L should understand that their conduct in this regard, whether witting or otherwise, must cease.

Section 60CC(3)(b)

1. X has an excellent relationship with each parent and appears to have a good relationship not only with Ms L but also with Ms Legg’s former husband (to the extent that he may continue to be involved) and with the other children with whom she lives from time-to -time.  She also appears to have a good relationship with both of her grandmothers.

Section 60CC(3)(c)

1. Both parents have taken appropriate steps to spend time with the child and to communicate with her.  The father, however, has not taken entirely appropriate steps to involve himself in making decisions about major long-term issues in relation to the child, as Dr I convincingly reports.  He has inappropriately devolved substantial proportions of his child rearing responsibilities, including decision-making, to his partner.

Section 60CC(3)(ca)

1. In view of the comment set out immediately above, this subsection has no further work to do.

Subsection 60CC(3)(d)

1. There is nothing in the evidence to suggest that X would be adversely affected either by the maintenance of the extant regime or by an increase of one night per fortnight with her father.  Given her age and the fact that her mother has been the primary carer throughout her life, the father’s suggestion that time should move to a majority of time with him is plainly misconceived.  It reflects his lack of insight.  That lack of insight is shared by Ms L who supports his application.

2. There is no practical difficulty to X spending another night with her father, but it will have to be a weeknight.  The issue that requires to be addressed here is getting the child to school on time.  I note that the Independent Children’s Lawyer implicitly accepts the assurances of the father and his partner that they will properly attend to this matter in the future.  Quite clearly, if the father does not live up to his undertakings, then time would have to be reviewed.

3. There does not appear to be any issue as to the expense involved in either parties’ proposals. 

Section CC(3)(f)

1. There is no issue as to the mother’s capacity to provide for the needs of the child.  There is an obvious reservation about the father and Ms L’s capacity to provide for X’s emotional and intellectual needs if they continue to question her inappropriately, to video her, or to foment in X dissatisfaction with the mother and her household. 

Section 60CC(3)(g)

1. I note that Dr I found that X “presented as a confident and engaging child”.  Despite the concerning behaviour reported in 2013, it seems that X is now relatively well settled.  To the extent that she is unsettled, the evidence of Dr I, given with complete conviction, convinces me that the primary difficulties that have been observed in X arise from the incapacity of the parents and Ms L to communicate in an appropriate and effective way.  I should make it clear that although this judgment contains some measure of criticism of both Mr Cleary and Ms Legg, the failure to communicate, in my opinion, is mutual.  Seeking to determine X’s best interests by apportioning blame, will not, in my view, advance her best interests. 

2. Having said that, however, the sort of Facebook entries made by Ms L annexed to the mother’s affidavit material are hurtful and unpleasant and it is readily apparent in the scheme of things why the mother should find Ms L’s over-involvement in her child’s life unattractive. 

Section 60CC(3)(h)

1. Irrelevant.

Section 60CC(3)(i)

1. Both of these parents love X, and subject to the issue of parental responsibility already frequently referred to on the part of the father, their attitude to the responsibilities of parenthood is unexceptional. 

Section 60CC(3)(j)

1. As already stated, while there has been some family violence, it does not require further attention. 

Section 60CC(3)(k)

1. This is not relevant. 

Section 60CC(3)(l)

1. As the Independent Children’s Lawyer’s counsel rightly submitted, this is an important matter.  It is important to make arrangements now that will last.  The orders proposed by the Independent Children’s Lawyer, which are detailed and involve extensive counselling and other assistance, are, in my opinion, far more likely than otherwise to bring this most unfortunate litigation to an end.  Assuming that the parties will obey these orders, and the mother expressly said she would and I took the father to be adopting the same position, the counselling is likely to greatly improve communication between the parents, reduce the anxiety and distress that have troubled X and to be in her best interests. 

Section 60CC(3)(m)

1. In my view, there are no other material circumstances that require attention. 

Conclusion

1. In my opinion, the submission of the Independent Children’s Lawyer of increasing time in 2015 is in X’s best interests.  Although she is young and although she is being coached, she has said in a way that Dr I found convincing that she wants more time with her father. 

2. This, together with the fact that it is likely to bring litigation more conclusively to an end, in my opinion suggests that these are the orders the Court should make. 

3. In truth, this dispute is not about the nuts and bolts of X’s time with either parent.  It is about the father’s failure to see that his abrogation of responsibility to Ms L is inappropriate, and even more particularly, about the parties’ failure to communicate.  The terms of these reasons for judgment should disabuse Mr Cleary once and for all of his misunderstanding of the inappropriateness of his past conduct in relation to parental responsibility.  The terms of the orders to be made will address the question of communication between the parties in a far more effective way than has been the case thus far.

4. As earlier indicated, I am going to make orders as sought by the Independent Children’s Lawyer.  I have prepared draft orders to give effect to this conclusion but will give the parties an opportunity to consider them and to make any submissions in case there are any matters I have overlooked.

5. As a final word, I should say that there are some matters I have not dealt with, such as the father’s unconvincing denial of exposing X to (omitted) shooting, by way of example.  While these matters are not utterly insignificant, they do not alter the kernel of what this case is about and I have not felt it appropriate to deal with them accordingly. 

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:  24 July 2014