Leitner and Vogel
[2009] FMCAfam 529
•28 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEITNER & VOGEL | [2009] FMCAfam 529 |
| FAMILY LAW – Parenting – intractable conflict – living arrangements in preparation for commencement of schooling – parental capacity to facilitate a meaningful relationship. |
| Family Law Act 1975, ss.60B, 60CC, 65DAE Liquor Act (Qld) 1992, s.156A |
| Applicant: | MR LEITNER |
| Respondent: | MS VOGEL |
| File Number: | BRC 1393 of 2007 |
| Judgment of: | Demack FM |
| Hearing date: | 26 February 2009 |
| Date of Last Submission: | 26 February 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 28 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Galloway |
| Solicitors for the Applicant: | Baldwin Cartwright Solicitors |
| Counsel for the Respondent: | Ms McDiarmid |
| Solicitors for the Respondent: | Hall Payne Lawyers |
BY CONSENT THE COURT ORDERS
That the parties share equal shared parental responsibility for the child [X] born in 2006.
That neither party allow or promote the child to call a step parent or any other person “mummy” or “daddy” or any other similar word connoting parentage of the child.
That neither party be permitted to remove the child from the Commonwealth of Australia without obtaining the consent of the other parent. Each party will do all such things and sign all such documents as necessary to obtain an Australian passport and a Dutch passport for the child at their joint expense, with such passports to be retained by the Registry of the Family Law Courts. The parties shall issue a joint instruction to the Department of Foreign Affairs and Trade and the Dutch Embassy authorising for the issue of the passports to the Family Law Courts Registry.
That in the event the child is permitted to travel overseas for the purpose of a holiday such holiday time to occur during the time when the travelling parent would have had the child pursuant to these Orders unless otherwise agreed between the parties.
That in the event of such a holiday overseas taking place the travelling parent shall provide twice weekly telephone contact between the child and the other parent.
That the telephone time as referred to in these Orders means that the parties will provide the other parent with uninterrupted and unfettered telephone contact and will provide the child privacy while she is talking to the other parent. In the event that either party is not available to facilitate the time they shall ring the other parent to facilitate the telephone time with the child.
That for the purpose of telephone communication each party shall provide the other with a landline number on which to contact the child.
That these Orders shall hereby authorise the child’s school and all other extra curricular activities and organisations to provide to both the mother and the father copies of all school reports, weekly newsletter, school photographs and any other documents regarding the academic progress or achievements of the child and notification of such important events such as parent/teacher meetings, sports and concerts.
That the parent with whom the child will live with will provide to the other parent the names and addresses of all educational institutions and medical practitioners that the child attends as may change from time to time, within seven days of such change.
That this Order shall hereby authorise any doctor, hospital and/or other health professional to provide to either the mother and the father any information concerning the health of the child and the requesting parent shall have the right to discuss matters concerning the child’s health direct with the child’s medical practitioner or hospital as relevant and be at liberty to contact those persons direct.
That both parents will be at liberty to attend kindergarten and school events to which parents are invited to including but not limited to parent/teacher interviews, sports days and concerts.
That each parent will notify the other as soon as practical in respect of any accident or medical emergency concerning the child.
That each parent will keep the other informed as to their current contact details and will advise the other of any change within forty-eight hours of such change.
That neither parent will drink alcohol to excess or use obscene language within the hearing of the child whilst the child is in their respective care.
That the parties are to promote the child’s relationship with the other parent at all times.
That each party is to refrain from discussing parenting matters with the child or denigrating the other parent including in relation to their religious beliefs to or in the presence of the child and will use their best endeavours to ensure the third parties do not denigrate the other party to or in the presence of the child.
That the parents are to use their best endeavours to ensure that the child’s clothes are returned to the other parent and are not unnecessarily spoiled, stained or dirty.
That if for legitimate reasons the parent with whom the child is not living with is not available to spend time with the child they will advise the parent with whom the child lives with of their unavailability at least one day prior to the scheduled visit.
ORDERS
That all previous parenting orders and undertakings be discharged.
That the child of the relationship [X] born in 2006 (“the child”) live with the father.
That the mother spend time and communicate with the child at all times that may be agreed, but failing agreement as follows:
(a)Until the child commences Prep in 2010:
(i)Each alternate week from 4:00pm Monday to 4:00pm the following Monday;
(ii)By telephone at all reasonable times but at least each alternate Tuesday when the child is not in the care of the mother between the hours of 6:30pm and 7:30pm with the mother to initiate the call;
(iii)For a period of up to three hours on the child’s birthday provided, however, to facilitate same in the event that the child’s birthday falls during a time when the child is in the care of her father, the mother will travel to the father’s residence for the purposes of spending time with the child and likewise in the event that the child’s birthday falls during an occasion where the child is otherwise in the care of the mother then the father be at liberty to spend up to three hours with the child on that day provided that he travels to the mother’s residence to facilitate same;
(iv)Such other times as agreed between the parties.
(b)Upon the child commencing Prep in 2010:
(i)For the second, third and fourth weekends in every month from 5:00pm Friday to 4:00pm Sunday, with time to extend to 4:00pm Monday if Monday is a public holiday or pupil free day (the first weekend of any month includes a month where the first is a Sunday).
(ii)By telephone every Tuesday night from 6:30pm until 7:00pm with the mother to initiate the call;
(iii)From 9:00am to 4:00pm on Mother’s Day of it falls on an occasion when the child is not otherwise in the care of the mother;
(iv)For a period of up to two hours on the child’s birthday should it fall on a school day or for one half of the day should it fall on a non school day, provided however, to facilitate same in the event that the child’s birthday falls during a time when the child is in the care of her father the mother will travel to the father’s residence for the purposes of spending time with the child and likewise in the event that the child’s birthday falls during a time where the child is otherwise in the care of the mother then the father be at liberty to spend time with the child for one half of the day provided that he travels to the mother’s residence to facilitate same;
(v)Commencing in 2010 for one half of the Christmas and June/July school holiday periods, being the second half in 2010, the first half in 2011 and alternating each alternate year thereafter. For the purposes of facilitating this, the mother’s time with the child is to commence from 5:00pm on the first Saturday of the holiday period until 5:00pm on the second Saturday of the holiday period (during the first half of the holidays) or from 5:00pm the second Saturday until 5:00pm the following Saturday (during the second half of the holidays) and the weekend time pursuant to order 21(b)(i) hereof be suspended during school holiday periods;
(vi)Each alternate Easter with the father to have Easter 2010, the mother to have Easter 2011 and each alternate year thereafter;
(vii)For the whole of the September/October school holiday periods in each year;
(viii)Such other times as agreed between the parties.
That both the mother and father be permitted to speak to the child during times that she is in the care of the other parent and such telephone communication is to take place each Tuesday evening between 6:30pm and 7:00pm and each Saturday between 8:00am and 8:30am. For the purposes of facilitating this, the mother is to initiate the call during times that the child is in the care of the father and the father is to initiate the call during times that the child is in the care of the mother.
That each party shall supply a landline and mobile contact number for the purposes of facilitating this communication.
That telephone contact on the child’s birthday between the hours of 6:30pm and 7:00pm on that day.
That the mother’s time with the child be suspended on the following occasions if the child is spending time with the mother:
(a)From 9:00am on Father’s Day.
That unless otherwise agreed all changeovers are to take place at a public place, nominated by the mother in writing, on the Bruce Highway, which is as close as possible to an equal time in travelling between the mother’s residence and the father’s residence.
That each parent will keep the other informed of a general location and contact telephone number if they are taking the child away on holidays.
IT IS NOTED that publication of this judgment under the pseudonym Leitner & Vogel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 1393 of 2007
| MR LEITNER |
Applicant
And
| MS VOGEL |
Respondent
REASONS FOR JUDGMENT
The child in these parenting proceedings is [X] born in 2005, presently aged nearly four years. The father Mr Leitner born in 1972 is the applicant. The mother, the respondent is Ms Vogel was born in 1969.
[X] has been living with her mother and spending regular time with her father since their separation when she was eighteen months old. The mother lives in an outer northern area of greater Brisbane. The father lives at [Z], a small community, near Gympie.
The parties have struggled greatly with their post separation parenting relationship, and their communication is poor and their mistrust of each other high.
[X] will commence schooling next year in Prep. At that time she will, through dint of the distances involved, necessarily have to live with one of her parents and to go to a local school, and spend time with the other parent at weekends and on holidays.
It is the mother’s position that the present arrangements have not been working well for [X], and should be changed now.
The father says that there have been difficulty in the arrangements – but his answer to these are to proffer a week about arrangement for the remainder of this year (there are some eight months until [X] starts school) and only when it is no longer practicable, then a “weekend and holiday arrangement for the parent with whom [X] does not live.”
The father’s proposal, after [X] commences Prep, is for her to live with him and spend three out of four weekends with her mother. The father says that he wants to maximise the time [X] spends with her mother, but that the distances mean that it would be limited to weekends during school term. He proffers his position of three out of every four weekends as evidence of his understanding of the importance of the mother in the life of the child.
The mother’s proposal is that [X] should forthwith live with her and spend every second weekend with her father from 12 pm Thursday to 3 pm Sunday until [X] starts Prep and thereafter from 5 pm Friday to 3 pm Sunday, along with school holiday time.
The mother says that in the event her application is unsuccessful, she considers it best for [X] that she spend every second weekend with her, and not the three out of four weekend regime proposed by the father. The mother complains that the frequent travel between the parents for the purposes of [X] spending time with her father has been too much for [X] and that three out of four weekends represents an amount of travel which has been in her view contrary to the best interests of the child.
Both of the parties applications involve a change to the routine which has been in place since [X] turned two – in the middle of 2007 – or around twenty months at time of trial – which was established though a consent order of 2 November 2006.
The history of litigation
The parties have been involved in nearly perpetual litigation since separation when the mother left the matrimonial home with the child then aged five months and the father made an application for a recovery order and a PACE alert in November 2005. The mother’s then response was to have the child live with her.
Interim orders were made by a Registrar on 6 February 2006 – providing for [X] to live with her mother and spend time with her father, for two days and one night in each week. Mediation between the parties was ordered and happened on 20 September 2006. This resulted in further orders by a Registrar on 2 November 2006. These consent orders were marked as final orders.
The mother has previously argued that she had believed she was consenting to interim orders only and objected when she found they had been made into final orders. That point, it seems is neither here nor there for the present proceedings, as the arrangements prescribed by those orders will not be workable at the beginning of 2010 and both parties are proposing a change to take effect immediately. The mother’s argument that the orders were meant to be until [X] attended kindergarten (which I understand the mother means as the year before Prep) has in fact been brought before the Court during the year for kindergarten in any event.
The mother filed an application to vary the orders in Mary 2007. Her application was dismissed in July 2007.
The parties commenced property proceedings later in 2007. Directions were made by FM Cassidy in November 2007 and January 2008; the trial was conducted in March 2008 and the judgment delivered on 30 April 2008.
Parenting issues were in Court in October 2008 when the father applied to take [X] on holidays to Holland. The mother opposed that application and in reply sought to litigate the arrangements for [X]’s day to day care and time with each parent. The father’s application for the overseas travel was determined, and dismissed, on
16 October 2008. The parties agreed that there was a need for a family report. Trial directions were made in December 2008.
The family report prepared by Sean Moriarty was made available to the parties in mid December 2008 following interviews on
2 December 2008.
As previously stated both parents sought to vary the regime that had been in place for twenty months, and which had been anticipated by the consent orders on 2 November 2006.
In essence both parties had competing residence claims for the long term. The mother sought an immediate start to her proposed regime, where as the father sought to increase the child’s time with him at the outset through a shared week about arrangement.
Each party’s proposal means that the child will spend much less time in the other parent’s care than is currently the case. Neither party has any intention or contemplation of moving to be closer to the other party in the event they are unsuccessful with their litigation.
The father’s evidence
The father’s witnesses were himself, and his partner Ms S. Both had sworn affidavits.
The father did not have affidavits from, nor rely upon any of his members of his family of origin. His parents and his brother jointly run a child care centre in Gympie. [X] goes to that centre at times when she is in the father’s care.
The mother says that the father’s family is against him and annexes a letter sent by her former mother-in-law sometime after separation.
The mother alleges that the father and his father denigrate her in the presence of the child. The father denies this, on his own behalf and that of his family.
I had no opportunity to see any members of the father’s family of origin.
I found Ms S to be a calm and thoughtful witness. She was heavily pregnant at trial. Ms S answered questions put to her directly and without prevarication. She did not present as a new partner who had embroiled herself in the parent’s dispute.
The father’s presentation as a witness was less clear. He was defensive in his attitude and beliefs, and occasionally quite wrong in his firmness.
The mother’s evidence
The mother’s witness were; herself, Ms J, Ms B, Ms E, Dr W, general practitioner and Ms G, psychologist.
All had sworn affidavits. Also the mother relied upon reports attached to her affidavit by people who were not made available for cross examination; a paediatrician – Dr K and a mediator Ms R.
The mother did not have an affidavit from any members of her family of origin. The father was critical of the maternal grandmother’s involvement in the relationship and communication issues. I was not afforded the opportunity of forming a view of the maternal grandmother.
Ms J and Ms E had each met the mother at [H] Contact Centre in Maroochydore when they were present for the changeovers for their respective children. Ms B is a family friend of the mother. She has accompanied the mother to changeover on many occasions. These three witnesses attest to seeing [X] distressed to leave her mother and tired when returned to her. None of the witnesses had any real knowledge of the father, even the family friend of the mother despite the marriage of the parties. Some attack was made on the credit of Ms J who accepted that her own family law litigation had recently been deemed to be a Magellan matter and who was presently on probation for breaching parenting orders made in this Court. She denied that she didn’t value children’s contact with their fathers’.
Ms G, a psychologist, had seen the mother through community health for counselling and PPP instruction. The mother continues to be her client, although there was no appointment pending at the time of trial. Ms G did not bring her notes with her to Court, and explained that the file would in fact be in the child’s name, although she had only seen the child as an incident of her working with the mother.
Dr W, general practitioner, also did not have access to his notes at the time of cross examination. He was the author of the report attached to his affidavit, as well as earlier reports attached to an earlier affidavit of the mother. He is the mother’s treating general practitioner and the doctor who the child sees when she is with the mother. Not surprisingly the doctor was not able to provide much detail beyond what was contained in his reports, without his notes to provide any refreshing of his memory.
The mother was, at times, a distressed witness. She is clearly emotional about [X]’s care and the complaints she has about the father’s care, such that her ideation was fixated and relentless.
Why the father seeks to change the order
The father considers that the mother has always been poor at promoting his relationship with [X] and she will continue to be poor at this in the future. He considers that he has always tried to communicate with the mother and that she has persistently and consistently attempted to exclude him from decisions for or about [X].
The father considers that the care that [X] receives in his household is reasonably comparable to the care that the mother provides, but that the mother will not accept that to be the case.
He says that it has always been the mother’s approach to litigation to seek to limit [X]’s time with him.
The father says that if [X] lives with him, the mother will be forced to communicate with him, and therefore they will be communicating. Conversely, he argues that if [X] lives with the mother, the mother will have no need to communicate with him, and so she won’t and he will therefore be effectively excluded from [X]’s life.
Specific issues
The parties agreed to a number of orders about specific issues. They are all denoted as “by consent” in the orders. The mother seeks a number of orders about further specific issues:
·That the child attend [G] School in primary and high school or such other school as is agreed by the parties or pursuant to order of this Honourable Court;
·That during the time that the child spends time with and communicates with the father, the father be restrained from the following:
i)Personally cutting the child’s hair or having the child’s hair cut short (without the mother’s consent);
ii)Permitting the child from riding horses until she is six years of age;
iii)Enrolling the child in pony club or enabling her to compete in horse riding endurance races without the consent of the mother;
iv)Enabling the child to travel on motorcycle until she attains the age of ten years;
v)Permitting the child to bathe naked in a spa bath or pool, and exposing the child to other naked people in a spa bath or pool.
·That the parents are to ensure that no other family members attend the child’s first day at kindergarten or school of each year.
·That each parent will keep the other informed of a general location and contact number if they are taking the child away on holidays.
·That both parents ensure that the child is not given alcohol to consume until she is eighteen years of age.
·That the parents are to use their best endeavours to ensure that the child’s ears are not pierced before she is attending grade 1 at school and the mother will be present when this occurs.
The father has not consented to these orders, whereas, with many of the other specific issues, he has consented. I will take his non-consent to these particular matters at an opposition to the making of the orders. Only some of the matters were particularly raised in cross examination for example; hair cutting, horse riding, motorbike (and indeed motor trike) riding, age of parental approval of alcohol consumption. There was no mention of the piercing, for example, either in cross examination or affidavits.
A further area of dispute between the parties is the age at which [X] may first travel overseas with one of her parents. Both parents are of Dutch heritage. Both desire to have [X] travel overseas with them in the future for unspecified trips at unspecified times. Both agree that [X] should have that advantage. But there is disagreement as to when that should first be allowed to occur. The mother’s outline of case nominates the age of seven years. The father seeks no order as to age, meaning that such travel could occur forthwith.
Why the mother seeks to change the orders
The mother has long held the view that [X] is not coping with the parenting arrangements. She considers that the travelling between houses (including a side track to the changeover at a contact centre and a consequent increase in time) is too much too often, leaving [X] more susceptible to childhood illness, or slower to recover from them, due perhaps to tiredness.
Further [X] has suffered from tummy aches for which there is no known medical cause, leaving the doctor to hypothesise that these may be related to anxiety. The doctor thought that it may have been about eighteen months ago that he heard of these nocturnal stomach pains.
The mother also considers that the relationship she has with the father is also poor and emotionally difficult for her. He accuses her of harassing him when she is pointing out noncontentious facts. He won’t communicate with her about day to day matters and about larger, more long term issues.
The mother says the father has been dishonest in his dealings with her in the past: misusing her tax file number, looking up personal details about her on his work computing data (he is a [occupation omitted]); forging her signature on financial documents. He denies doing these things or doing anything wrong. She says he does these things to harass her and to gain an advantage.
The mother says that these matters point to the difficulties inherent in their poor communication which can not be overcome.
Further the mother asserts that [X]’s primary attachment is to her, and that she has sought to personally parent [X] and derives much joy from parenting [X]. In contrast, the mother says that the father has taken every opportunity he can to have [X] cared for at his parent’s child care centre, even when he is not at his paid employment and that he commenced to do this as soon as there was no longer orders requiring him to personally supervise [X].
The mother also says that [X] does not receive the same quality of care at the father’s house. She sustains bruising and scratching, her clothes are badly dirtied, she has been kicked by a horse and the father repeatedly denies this, and the father allows her to join others, including adult family members, in the spa bath naked.
The mother relies on all of these factors to support her position that [X] should live with her and spend time with her father.
The mother has further maintained since at least 2006, that she seeks [X] to attend kindergarten/prep in 2009.
Family report
Sean Moriarty’s family report and his measured answers in cross examination have been of assistance to the Court in this matter.
The parties were interviewed, along with [X] and also the father’s partner Ms S on 2 December 2008 and the report was produced by Mr Moriarty on 17 December 2008.
Mr Moriarty concluded that the issues before him, distilled by the time he prepared his report to include:
·The intractable relationship between the parents;
·The current bonds demonstrated by [X] to each of the parents;
·The obsessive focus on [X]’s health as demonstrated by the mother.
Mr Moriarty formed the view during his interview process that [X] was evenly attached to both of her parents. This in contrast to the mother’s view that [X]’s primary attachment is to her alone. The father would agree with Mr Moriarty.
Mr Moriarty concluded both of the parents to be responsible for their poor communication having had both of them express deep-seated grievances of the other. Neither parent, it seems to me, consider that they are equally as culpable as the other, although there were some begrudging concessions that they may, in part, be responsible.
Further Mr Moriarty was of the view that the mother presented with an overly inclusive focus on [X]’s health, but he was undecided as to whether the basis of this was a natural anxiety about the child’s health or a desire to denigrate the father’s care, or both.
Mr Moriarty’s report did not reach any firm conclusions. He suggested that a change to arrangements is not necessary until [X] is of school age – that is the beginning of next year. However neither parent desires that, nor have they presented their case to suggest that to be an outcome they consider to be in [X]’s best interests.
The law
Part VII of the Family Law Act 1975 (“the Act”) provides a legislative framework for the determination of parenting matters. The Act could not be more clear that the paramount consideration must be the best interests of the child. The objects and principles to be discussed in determining matters are set out in s.60B(1) and (2). I have kept them in mind throughout my deliberation, and it seems to me that it is useful for them to be set out in full for the parents’ contemplation.
60B Objects of Part and principles underlying it
(1)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 involvement in their lives, to the maximum extent 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 achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
There is a legislative presumption that parents have equal shared parental responsibility. Such presumption is capable of being rebutted in matters where violence or abuse would deem it so, or where it is contrary to a child’s best interests.
After the commencement of the trial, the parties tendered orders in which they consented to a number of issues, including the sharing of equal shared parental responsibility.
Yet, the mother seeks a number of orders, which would limit the father’s capacity to make decisions about a variety of issues, some of which may be more than day-to-day issues.
Section 65DAE of the Act relevantly provides:
65DAE No need to consult on issues that are not major long‑term issues
(1)If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a)has parental responsibility for the child; or
(b)shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major‑long term issues.
Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long‑term issues.
(2)Subsection (1) applies subject to any provision to the contrary made by a parenting order.
The mother, in seeking some of the restraints that she has on the father’s actions, offends against this section. The Act provides that a different order can be made (see s.64DAE(2)), however, it seems to me that the objects and principles seek to create an outcome that would have responsible parents making responsible day-to-day decisions for their child. The father would argue that the fact that the mother seeks these orders is evidence of her unfounded attitude towards the father and his capacity to make responsible, child-focused decisions for [X]. There is much to that argument.
In determining both the issue of parental responsibility and the issue of where [X] will predominantly live at least by the time she starts school, it is necessary to go to the legislative factors set out in s.60CC(2) and (3).
The primary considerations are important in every case. The additional considerations will take on different levels of importance in every case. I shall only address those I deem to be relevant in this matter.
I will attempt to address the issues and/or allegations raised in this matter under the various best interest factors.
Primary considerations
The benefit of meaningful relationships with both parents
It is important for [X] to have both parents in her life. They both have much to offer. They both love her. The fact of the distance between the two households means that, come the commencement of her formal schooling, the reality of her life means [X] must live with one parent and spend time with the other.
The amount of time that she can spend with the other parent will be dictated by the amount of travel that her parents are prepared to undertake and prepared to impose on her. Time in a car, with adequate ventilation, stimulation and rests, should not, it itself, be tiring for a child passenger. However, tiredness may be experienced by a child who experiences stressful moments during the journey – such as a handover or through being exposed to a parent’s unchecked stressing behaviour.
Given the difficulties that [X]’s parents have experienced post-separation, and the fact that the outcome of this litigation necessarily will determine a primary carer, [X]’s ability to have a meaningful relationship in the future with both of her parents will be, in part, determined by the capacity of her primary carer to promote her relationship with the other parent and the capacity of both parents to open, and keep open, the channels of fruitful and respectful communication. It seems to me that the primary carer has a particular responsibility when it comes to open and child-focused communication. He or she will be the parent with the greater amount of information to share. It is that parent’s role to ensure that the other parent is included in the child’s life in every way possible.
I will speak more about each of the parents’ capacities in this regard, a little later.
The need to protect the child from harm
There are no allegations of family violence in this matter, but there are matters raised by the mother, which, if established, would raise serious questions about the safety of [X] in the father’s care.
“Sexualised behaviour and spa bathing”
In the mother’s affidavit prepared for trial and filed on 19 February 2009, she raises some matters to do with [X] being allowed or indeed required to be in the father’s spa bath naked. As I understood the evidence it would appear to be an outdoor, multi person, above ground spa.
This issue had been raised by the mother in previous proceedings apparently. Certainly, it was written of by the mother in the communication book (see exhibit 7) on Saturday 6 June 2006.
On 28 April 2006 the father had commented that [X] loved the spa and was becoming a water baby. The next entry is that of the mother’s on 6 June 2006. She says there, in part:
I was advised by health clinic, it is not healthy for babies to go in spa bath, also does her grandparents still go naked in the spa bath with her? As I feel this is a bad example for [X], she might think it’s acceptable to go in the bath with naked adults. This concerns me greatly.
This communication was a week or two before the child’s first birthday.
In any event, father does not share the mother’s concerns about [X] being in the spa without clothes and with members of her family without clothes.
The mother’s affidavit continued further than that:
28.I am concerned that [X] is exhibiting sexualised behaviour which is not age appropriate, usually after returning from her father’s home. Some of her comments have also been rather alarming. [X] has told me that “[Y] touched my wee wee”. She also said that in the spa bath both [Y] and Ms S was touching Mr Leitner’s penis (she calls this a ‘doodle’) and “it hurt” and “got big” [Y] was also “touching Ms S’s boobies”. [X] has said when having a shower “rub my bottom” She demonstrates in the shower how she and [Y] rub each others bottoms.
29. Later [X] told me that “Daddy was wearing his undies and lying with [Y] on her bed” and [X] pulled his undies down. She asked me whether I thought this was funny. She also told me that her father gives her and [Y] “wedgies” in that he pulls their underwear up tight as part of a game. She says that she does not like it when he does this and it hurts her.
The first the father had heard of all this was on reading the mother’s affidavit. The father denies all of these matters.
The mother repeated a couple of times in cross examination that she was not saying that [X] had been sexually abused. However she has been very concerned about [X]’s safety. The mother had not told the father nor had she stopped sending [X] to spend time with the father.
I find it most difficult to understand the mother’s evidence on this issue. In her affidavit she appears to be suggesting that [X] has begun displaying age-inappropriate sexualised behaviour but that she has not been sexually abused. She refers to the possibility that the father lives a “more liberated” lifestyle than herself.
But what she presents is that the child of the father’s partner (the step daughter of the father) is touching the father’s penis in the spa, while in the presence of her own mother, and the touch is causing the father to have an erection. Further, that the child [Y], is already so sexualised, and her own mother so abusive, that not only does it happen in the presence of her mother, but further, she touches her own presently pregnant mother’s naked breast, all in the presence of the father and the subject child.
This is not a liberated lifestyle. This is child sexual abuse.
The father was given leave to reply to these allegations in evidence in chief, I therefore had the opportunity to witness his responses as Counsel took him through the allegations. I accept his assertions of being genuinely offended by the nature of these allegations as genuine. He pointed out that, indeed, the spa has been empty and therefore out of use for the past eight months and further that Ms S his defacto, is not able to use a spa presently due to her pregnancy.
I am satisfied that [X] has not been sexually abused by her father, nor that [X] is exposed to sexualised or sexualising behaviour in the father’s household.
Pony/Horse riding
The father owns and breeds Arabian horses. He allows [X] to ride a pony when she is at his house. Pursuant to an undertaking given by the father for the purposes of the order of 15 October 2008, the child (then aged three years and four months) will wear a helmet, never be left unattended on the pony and the father will always be in charge of the reins of the pony.
The mother says horses are the father’s passion. The father does not deny that to be the case. The mother is not passionate about horses and does not have the knowledge and expertise of horses that the father has. Clearly, the thought of [X] being around horses causes the mother concern. She has long sought to have [X] kept away from horses until a time when she is older. She seeks orders that the father be restrained from permitting [X] to ride horses until she is six years of age; enrolling [X] in Pony Club (at any age) without the mother’s consent or enabling her to compete in horse riding endurance races (at any age) without the mother’s consent.
The mother’s objection to equestrian activities actually extends further. As mentioned above, earlier order of FM Cassidy of
15 October 2008 is pronounced upon the undertaking of the father relating to [X] being on a pony at his place. The mother does not believe that the father takes these responsibilities seriously enough. She is concerned that the reins are too long and that the father is too far away from [X] when she is on the pony.
The mother also believes that [X] has been kicked by a horse while in the father’s care. When [X] returned from time with her father on 16 March 2008, she had a red mark with some scratches on her lower outer left thigh. The mother photographed this mark. She took the child to the doctor. She phoned the Department of Child Safety.
The mother says that [X] told her that the mark had been caused by a horse kicking her. The mother says that [X] has told her this many time since and that as the child has repeated the complaint the mother has formed the view that the complaint has veracity.
The mother says that her complaint about the father exposing [X] to horses is about the age-appropriateness of the activity as opposed to a concern that the father is not able to look after [X] safely.
But she says that [X] has come home from her father’s with the same bruises in the same spot and concludes these may be related to horse riding. There is no evidence that the bruising on the child’s shins is in any way related to horse riding or spending time with horses.
Nowhere does the mother complain that the father is a deficient or unsafe horseman. She seems to acknowledge that she has less knowledge about horses than he does.
The father points to the fact that the mark left on the child after allegedly being kicked by the horse is not consistent with a not-yet three year old being kicked by a 600kg horse. The mother says that the child could barely walk on her leg. The doctor’s note does not mention any report of that apparent presentation nor any reference as to how the mark was made – he simply records the observation of “soft tissue injury”.
The mother provides no evidence to help the Court understand why six years of age is a time when this child would be able to ride a horse. Further the mother was contrary in her evidence about distinguishing between a pony and a horse and whether she was content with [X] riding a pony in her father’s care.
The father opposes the making of orders which restrict [X]’s equestrian activities. Absent cogent evidence supporting an argument that the father is negligent in his parenting responsibilities around equestrian activities, it is difficult to see how the Court could prefer the mother’s evidence on this issue.
Photography by the Mother
Mr Moriarty was concerned about the mother’s focus on the child’s care and how it, for example, included the photographing of the child, and separately, her clothes. That photo album was tendered (see exhibit 10). I am of the view that this level of intense interest in having the child’s time with the father documented and catalogued is unhelpful for keeping in perspective the fact that both parents play a valuable role in this child’s life. I am concerned that the mother does not accept that to truly be the case. And that has the potential to be a source of risk or harm.
Physical disciplining
[X] has told her mother that her father has smacked her. There are two specific times told by [X] to her mother – at a Christmas party at the father’s parents’ child care centre and while watching fireworks. [X] has also told her mother that she (the mother) is spoken about negatively in the father’s household by the father,
Ms S and the father’s extended family.
Given the view that I have formed about the father and Ms S and their styles of parenting, interaction, and discipline I am not minded to the view that [X] is being inappropriately and harshly physically disciplined by Ms S.
Denigration
In terms of the issue of the mother being spoken about negatively or denigrated by the father or members of his household or his family, the mother’s suspicions were around as long ago as March 2007 when she received a letter from the paternal grandmother which included the view that mother should seek psychiatric treatment. The letter indicates a strong view of matters, as well as a clear involvement of someone beyond the relationship in matters which are not properly any of her business.
However, the letter does not indicate that the child is being involved in any discussion or exposed to these views, at all.
Children suffer harm when they are exposed to people who are important to them being denigrated by other people who are important to them. It is also not optimal for a child’s life to become so compartmentalised such that they do not or may not speak of what happens in the other household. This unfavourable result can be achieved without exposing a child to denigration, but rather through the more insidious method of not speaking of the other parent in any terms.
Any of these outcomes will be poor for [X].
In the absence of cogent evidence, I will not make any finding that either party has engaged in such reprehensible conduct. I note that they have agreed to orders prohibiting denigration, and expressly promoting relationships.
Bumps and bruises and a burn
The mother says that every week [X] has the same bruises in the same spot which she thinks might be from horse riding. She is concerned about other scrapes or scratches [X] has had from visits to her father. In January this year she returned to her mother’s care with large scratch marks on her leg and a large bruise. The mother did not receive any information from the father about the cause of the injury and [X] told her that she had fallen through a hole in
Ms S’s shed.
[X] has suffered a burn on the hand in the mother’s care, apparently through cooking or some such. The mother denies not telling the father the cause of the burn.
It seems to me that there is a marked distinction between childhood bumps and scrapes and accidental injury, and the harm that befalls children who do not have a parent who is willing or able to protect them from harm, or who exposes them to harm.
The mother has not satisfied me that the father is the latter parent, although her focus on this issue and her concerns as to [X]’s safety in the father’s care would lead me to consider that she was seeking to draw that conclusion. Rather, the mother’s focus on this issue and the number of scratches and bruises [X] gets at her father’s, falls into the body of evidence which go to the mother’s attitude towards the father’s capacity to parent [X].
I am satisfied that both parents have the capacity to properly and safely parent [X] and to attend to her needs, including, her emotional and intellectual needs. I am also satisfied that the mother so doubts this to be the case, with respect to the father’s capacity, that her co-parenting capacity is severely undermined. In forming that view, I take into account all of the matters about which the mother sought injunctive relief or specific orders, all of which demonstrate the mother’s view that her position as mother, and her views about outcomes for [X], were to be preferred.
Additional considerations
The child’s views; and the relevant characteristics of the child
[X] is not yet four years of age. Her parents have lived separately since she was about five months old. Since that time she has moved between both parents regularly, although to start with, her time with her father was short and the time taken up in a lot of travel.
The mother perceives [X] to be a child who is emotionally stressed and experiencing health problems. The father perceives her to be friendly and fun child, who enjoys her time in his company and with her mother.
Mr Moriarty was satisfied that [X] “went easily and naturally between her parents and demonstrated a strong and affectionate bond with each [of them]”.
The child that the mother describes in the communication book during 2006 appears to fit the father’s and Mr Moriarty’s description.
The mother does not, as I understand her position, accept that [X] is as bonded to her father as she is to her. I am against the mother on that point and consider her position to be an incident of the difficulties she experiences sharing the parenting of [X] with the father.
The nature of the child’s relationships and the likely effect of any change in the circumstances
In the mother’s household, [X] lives alone with her mother. The mother has family and friends in the area, and a sister in Dalby, who she takes [X] to visit once per month. Of course, [X]’s relationship with her mother is loving and close and a move away from her would create a great loss for both of them.
Unbeknownst to the mother, the father re-partnered, and after a time, his new partner, Ms S, and her daughter [Y], moved into the father’s home. [Y] is approximately one year older than the subject child [X].
The father and Ms S consider their relationship to be settled and stable and together they are expecting their first child, due at the end of May beginning of June 2009.
The father failed to advise the mother of the fact he and Ms S were living together, that Ms S had a daughter [Y] and that Ms S was pregnant. The father considered that these matters were not the mother’s business.
The father was wrong about that. They are certainly not issues upon which he is obliged to consult or confer with the mother. But it would have been considerate and civil for him to have informed her. It is right and proper for the mother to be informed of changes in circumstances in the father’s household which significantly alter the environment in which their daughter lives when with the father.
Ms S, necessarily is now [X]’s step-mother, and [Y] is [X]’s step-sister. The unborn child will be [X]’s half-sibling. These are big changes in [X]’s life. It is not fair or reasonable to leave the telling of these facts up to [X]. The father’s failure to find a respectful way of communicating these facts to the mother indicates either a poor understanding of the enormity of his new situation in [X]’s life or a complete inability to separate his personal ambivalence towards the mother from the essential task of parenting.
The mother reports a number of complaints made by [X] to her about [Y]. Collectively, the complaints portray [Y] as a wilfully naughty child with whom [X] has an unhappy relationship.
The father and Ms S do not present the relationship as thus. They describe a rather new step-sibling relationship which has its expected ups and downs. On the whole, they concur that the two little girls get on well.
The reality is, for both of these little girls, there have been big changes. [Y] has gotten herself a part-time little sister. [X] has gotten herself a big sister at all times she is with her father. Both of them have a new adult (step-parent) in their lives. And they are both on their way to having a new little baby brother or sister. It would be wrong to underestimate the impact of all of these changes in their lives.
The capacity of [X] to weather these changes successfully is increased by her parents’ and Ms S’s capacities to assist her. The mother is wholly unable to assist [X] if she is not informed in a timely way.
Ms S impressed as a calm and kind woman.
Clearly the relationship between [X] and her father is a close and loving one. The loss of frequent and consistent time with him would be great for both of them.
The relationship [X] has with Ms S and her daughter are of secondary importance to the relationship [X] has with her mother and her father.
The willingness and ability of the parents to facilitate the other parents relationship; the parents’ capacities to provide for the child’s needs; the parental attitudes to the child and their responsibilities
Both parents have a catalogue of complaints about the other parents’ capacity to provide everything for [X] that she needs. Some of the complaints indicate the level of misunderstanding and miscommunication between the parents, for example, the mother asserts in her affidavit of 3 October 2008 (at para 4.12) that the father has been experiencing difficulties with [X] at changeovers and points to a letter that he sent her as evidence of this (see Annexure “1”). In fact, the letter does not demonstrate that the father was experiencing difficulties, rather he was of the opinion that [X] was having difficulties and he was proposing a solution. It is a measured and polite letter.
Consumption of alcohol by [X]
Both parents, according to their respective applications and responses seek an order with respect to [X] not being given alcohol until she reaches eighteen years. Such an order was not, however, included in the order by consent.
There is scant evidence about the need for such an order. In her affidavit of 3 October 2008, and in no other affidavit, the mother deposes at paragraph 34.5:
[X] is being exposed to regular consumption of alcohol by
Mr Leitner and his family who are all social drinkers. I am also concerned that [X] will be given alcohol before she is an adult and I seek that a restraining order be put in place as sought in my response.
There is no evidence that the child is exposed to any problem drinking, or any improper or dangerous behaviour as a result of drinking. It is not asserted by the mother that the child has been exposed to risk or harm because of the use of alcohol in the father’s family or household. And it is not asserted by the father that the child has been exposed to risk or harm because of the use of alcohol in the mother’s family or household.
The Court should not make orders about matters that it does not have evidence to support the making of.
There is adequate legislative protection for children to prevent them being harmed by being provided with alcohol irresponsibly (see s.156A of the Liquor Act (Qld) 1992.
I will not make orders regulating this issue further.
It is, however, one of the many factors, which, it seems to me, indicates the parental attitudes. It exhibits a high level of distrust. It suggests the need for Court-mandated behaviours about a matter which is within the daily province of parents. It was sought without any evidence of it being a present or potential issue. The use of alcohol by and of itself does not presuppose the irresponsible supply of liquor to a child.
Hair cuts for [X]
The mother insists that the father has cut [X]’s hair whilst she has been with him without her permission. The father denies cutting [X]’s hair or allowing her hair to be cut while with him.
The mother had put together a collection of photographs in an album (see exhibit 10) - all of the child or her clothes. Most of them were dated. The same album was taken by the mother to the family report interviews with Mr Moriarty and shown to him.
Mr Moriarty stated at paragraph 30 of his report:
Ms Vogel presented with an obsessed focus on [X]’s care. In the interviews she had in her possession an album which contained numerous photos of [X]’s clothing. Ms Vogel had laid the clothing out on a bed and taken pictures with the intent to show how dirty the clothes were. It appeared that she did this almost every time that [X] returned to her. Additionally there were numerous photos of various marks on [X]. As to whether she was excessive in this or over anxious about [X]’s care, Ms Vogel responded obliquely, saying ‘I don’t let her walk around that dirty, I change her and if she is sick with fevers I feel that it is my responsibility to go to the doctor’.
Two of the photographs were taken to show a hair cut that the mother says she had when [X] returned from time with the father. The photos appear to show some unevenness in the child’s fringe but no apparent loss of length for the rest of her hair.
The mother seeks an order that [X]’s hair not be cut short by the father. By that she seems to mean less than jaw length. The mother wants to keep [X]’s hair long and says that [X] wants that too.
The mother says that [X] complained to her about Daddy cut[ting] my hair. [X] said I told him to stop, but he didn’t I cried, he wouldn’t listen. The mother says this was after “[X] was returned home with a hair cut, all different lengths and very messy.” It would appear that the photo in exhibit 10 dated 18 January 2009 would relate to this. I cannot see that this photograph demonstrates a disastrous haircut. Not all photos in the exhibit show the child’s hair – but those that do, do not support a conclusion that in January 2009 the child’s hair was inappropriately cut by the father or someone else under his direction while the child was with him.
The father does not have any particular plan to commence cutting the child’s hair short, or having that done against the child’s wishes. He simply considers that there should not be an order made which dictates the issue.
Again, I consider the fact that the mother seeks an order which regulates in perpetuity how the child’s hair cuts are to be attended to (something which could, realistically, be happening every six weeks), and for which there is scant evidence, part of a pattern of behaviour indicating the mother’s attitude towards the father and his role as a parent with equal responsibility and capacity to make responsible decisions, and to parent their child with empathy and kindness.
Dirty clothes
After the first Court orders, [X] was with her father from one morning until the next afternoon only once per week. [X]’s mother would send some clothing with her. The father found that he did not have time to launder the clothes when at his house, in time to return them at the end of each period. At times, articles of clothing were left behind at the father’s house. At times, the father purchased clothing and sent it back with the child for use at the mother’s home.
When the father advised the mother he had retained some clothes for washing, the mother replied that the dirty clothes should be sent home with the child. It seems to me that the mother preferred that outcome, to the possibility that clothes be delayed in their return.
Some of the clothes came back from the father’s home in a most strained and grubby state. The photo album produced by the mother shows over a dozen photos of [X]’s clothes laid out on floor boards and then photographed by the mother. The father does not dispute that the photos show clothes which got that grubby whilst [X] was in his care.
The submission on the father’s behalf is that there is nothing out of the ordinary for a young child’s clothes to become dirty through daily activities – and further, rather than that being a source of complaint about the quality or effectiveness of the father’s parenting, it is instead indicative of the mother’s level of complaint about the father’s involvement in the child’s life.
It does seem to me that is the case. It may also be indicative of the differences in parenting styles. The father’s focus on outdoor and hands-on activities is vastly different to the mother’s focus on gentle activities. I suspect the child benefits from exposure to both kinds of activities and what they bring to her development.
Motorbike/motortrike riding
Through her amended response filed a month before trial, the mother sought to injunct the father from enabling [X] to be on a motorbike before the age of ten. In oral evidence, the mother expanded the injunction sought to include a motortrike. The mother was not able to particularise what had caused her to consider ten to be an appropriate age, and proffered in her evidence that perhaps eight would be appropriate, the basis for which was no clearer.
It seems to me that the mother was not genuine in her expression that she wasn’t saying that the father can’t look after [X] safely. It seemed to me, that was precisely what she was saying through seeking this order and other similar injunctive orders.
Use of child care by the father
The mother complains that the father has chosen not to make arrangements to personally care for [X] when she is with him. He has made use of a child care centre in Gympie which is owned and operated by the father’s parents and brother. The mother considers that these people are amongst those who speak negatively of her.
It is clear that the father has made use of outside care in the past and will do so in the future. The mother has always sought to care for [X] personally when in her care and would prefer that to be the father’s approach too. The earliest order required the father to personally care for [X], and when it was not included in a subsequent order, [X] was placed into the paternal grandparents child care centre not long after. The mother is very critical of the father for that.
There is no particular legal principle guiding the determination of this disputed issue. If it was the case that the parents were of the one mind in terms of alternate care solutions, the Court should not properly make an opposing order unless it was necessary somehow in the child’s best interests. But it seems to me, in this case, that there are two legitimate parenting styles at play here, and that they both contribute valuably to a child’s development and care. In part, the mother’s concern about the father’s use of care arises from his choice of carers – his family. The mother believes from past experience that they are against her and speak negatively about her, possibly in such a way as to influence [X] against her. The mother holds up the annexed letter as evidence of that. I have earlier stated that I cannot be satisfied that the letter demonstrates that the father’s family were speaking improperly about the mother in the child’s presence. And I cannot be satisfied that the attitudes demonstrated through the letter continue to exist or whether they have mellowed with time.
The father, too, complained of the maternal grandmother’s attitudes towards him and his role in [X]’s life.
And, as earlier stated, neither parent produced evidence from these people who are apparent sources of complaint. There are many reasons why this might be the case, and the inference is open that they would not have added positively to their own adult child’s case. But I do not consider that I have to draw such an inference on this issue.
As [X] grows older, her daily routine and her care needs change. This year, her mother would expect her to be attending kindergarten, in readiness for her preparatory year of school, which in turn is in readiness for year one of her schooling.
There is no evidence before me that would draw me to the view that long day child care is, of itself, not in [X]’s best interests when in either parent’s care. There is nothing before me to have me conclude that kindergarten is superior or provides superior results or outcomes for [X].
All of these activities and care mechanisms for [X] have a role in her life. The choice the father has made in having [X] cared for in a child care centre setting, where members of her father’s family are present, is not contrary to [X]’s best interests. The mother’s choice is personally parenting [X] when she has been in her care is not contrary to [X]’s best interests.
However, it is contrary to [X]’s best interests that her parents have not been able to respect the decisions that each other has thoughtfully made about [X]’s daily activities and care regimes. The mother, in particular, seems unable to see any good in the father’s past care regime for [X], but rather considers that it has been indicative of his attitude towards [X], that is, he didn’t really want to care for [X], but sought time with her, as part of his on-going emotional abuse of the mother.
I am not satisfied that is the situation at all, rather the use of his parents’ child care centre has been a reflection of the father’s consideration of how best [X] should be cared for in his household.
Mediation with Ms R
In the latter part of 2007, the parents attended mediation with Ms R. Her report of the mediation is annexed to one of the mother’s affidavits. The parties’ presentation to her had many marked similarities to the parties’ ongoing presentation: their communication is poor and unhelpful and their parenting philosophies and practices are different.
The document informs me that there are deep-seated, ongoing issues between these parents and does not provide any basis for considering that matters will improve in the future.
Father’s honesty
The mother has previously made complaints to other bodies about matters which centre on the father’s honesty. The Crime and Misconduct Commission Queensland apparently investigated the father’s improper accessing of information about the mother. The mother is concerned about the potential for future invasions of her privacy by the father. The mother also alleges that the father has misused her tax file number, causing her to apply for a new one, and the Australian Taxation Office to investigate.
The mother further alleges that the father has previously forged her signature on documents pertaining to property matters.
I am not able to draw any definite conclusions about any of these allegations from the evidence. None of the issues particularly relate to parenting, but rather, may be of interest in terms of a witness’s credit or perhaps, more obliquely, along the lines that an essentially honest parent should be preferred to a parent whose honesty is questionable.
It seems to me that the evidence primarily draws my attention, yet again, to the adult issues of mistrust and poor communication between the parents. And I note that it is, yet again, part of the mother’s catalogue of complaints about the father, and not vice versa.
The mother’s complaints about the father are so various and comprehensive that it is difficult to reconcile the complaints with her protestations that she wants [X] to have a relationship with him.
The father’s ultimate submission is that he will, indeed, be unable to have a relationship with [X] unless she lives with him, because of the mother’s all-encompassing view that her parenting style and the child’s attachment to her is to be preferred and if allowed to prevail will effectively remove his influence from the child’s life in any meaningful way. This submission has some merit. I have come to the view that the mother is unable to disconnect her adult issues with the father sufficiently to recognise his importance in [X]’s life.
That father’s submission goes an extra step, however: that the communication and relationship between the parties will only improve if [X] is living with him. I do not share that hopeful view for the future. There is nothing within these parents’ past behaviours that would give me any hope that a new commitment to improved communication will be brought about through this judgment. Such an outcome will, it seems to me, only come through internal, not external, forces.
The practical difficulty and expense of contact
The father lives outside Gympie and the mother lives on the northern outskirts of Brisbane. Neither has any intention, plans or desire to move closer to the other. They are each living, essentially, in the same area as they had lived before their relationship.
The handovers have been taking place in a contact centre which has necessitated more driving and more time spent – not only in the travel, but in the waiting and exchange.
The parents have not agreed to how future handovers should occur. The father proposes that the parties meet at McDonalds Nambour. The mother, through not seeking to discharge the orders which provides for changeover at [H] Contact Centre that is order 6 of
2 November 2006, would appear to seek the continuation of the present arrangement.
The mother considers that the present travelling is too much for the child. She believes that it contributes to [X]’s health issues. The general practitioner, Dr W, lends some support to this view as he considers it quite reasonable to link the amount of travel [X] does to her number of upper respiratory chest infections due to fatigue.
Happily, the non-organic abdominal pains that [X] has presented with, would seem to be a thing of the past. They seem to have been complained of about eighteen months ago. Likewise, [X]’s presentation to Dr W which caused him to refer the child to the paediatrician was over two years ago, when she was eighteen months old. The report by Dr K annexed to the mother’s affidavit of 3 October 2008, must, therefore been seen as of historical, rather than recent, interest.
[X] is only the passenger, and, rightly, she should be able to accomplish the amount of travel with little effort. Her parents, however, do a poor job at making the trips the painless journeys they should be. Their inability to cordially and respectfully interact have created the situation where there is the added stress of a longer drive and a wait while handover is effected. The stress experienced by the parents permeates the travel and necessarily effects [X]. These are not, therefore, relaxed, friendly drives, that [X] goes on with her parents. They are stressful, unwelcome, regularly required, mandated and burdensome. She moves from a parent who is sad to see her go and wishes that she didn’t have to leave and goes to a parent who is overjoyed to see her and wishes she never had to leave. The parents should be making the travel achievable and stress-free for their daughter. She should not be having any adverse physical effect from this amount of travel.
Whatever the outcome of these proceedings, the mother seeks that [X] only travel to the other parent on a fortnightly basis. It seems to me that the mother considers that things can not or will not improve for [X] in the future. The father seeks that [X] continue to see each parent as much as possible meaning travel during three weekends out of every four. It is not clear as to how he sees an improvement in the travel for [X] occurring, other than for the handovers to be in a public place in Nambour, which is a much shorter diversion off the highway.
An added factor is the father’s apparent intention to move from [Z] where he is presently renting, to [W], where he has a home. [W] is further away, making the one way direct travel around two and a half hours rather than closer to two hours. The father’s proposal that handovers occur at Nambour would be sufficiently equidistant if he lived in [W], but is distinctly favourable to him whilst he is in [Z].
The continued use of a contact centre is preferred by the mother. However, she does not press that handover only occur at a time when the contact centre is open and seeks that any handovers out of opening hours occur at McDonalds at Maroochydore. I do not understand why it would be necessary for the parties to leave the highway, for that distance, to have a public venue. There are many adequate public venues closer to the highway.
The poor relationship these parents have with each other is demonstrated through their problems at changeover. The mother has someone come with her to assist her to feel less intimidated. She says that the father tape records every visit but what knowledge the mother has of that considering the handover has been facilitated through a contact centre since the orders of November 2006 is in-explicable. Further the mother attributing phrases to the father at handover (“I’m going to the dodgem cars now” para 20.1.3 of affidavit of mother filed 3 October 2008) is also unable to have been first hand. I was not assisted by any of the other of the mother’s witnesses on these issues.
A contact centre is an unacceptable long term solution. It has a financial cost. It has a time limitation. But most importantly it absolves parents of their responsibility of controlling their behaviours sufficiently in the interests of their child experiencing the move from one parent to the other with their love, support and encouragement. To perpetuate a third party professional facilitation of handover leads the child to the experience of these two parts of her life being separated by a de-militarised zone. Such a facility, should only be used, if there is no other way of facilitating handovers and presupposes that there is some level of risk which needs to be managed.
Family violence
The mother says that she suffered emotional abuse during the marriage and that she remains intimidated by the father and his family. She has had counselling from a Domestic Violence Service in the past.
There are no domestic violence protection orders in place presently nor historically.
Emotional abuse is an insidious form of relationship violence. It is also difficult, at times, to pinpoint and to classify. The mere assertion of it is not evidence of it.
The mother has spoken of being intimidated by the father in the past. In the communication book on 1 July 2006, the mother referred to the father’s “continued intimidation and powergames”. This was at a time before a contact centre was being used for handover and the mother commences the entry setting out what had happened at the handover on 23 June 2006:
I [the mother] was at the agreed meeting point. I just can’t believe, that I was ready, only 2 metres away from you, ready for the handover of [X] and you and your mother walked away with [X], after she was already happy to see me. I was very sad for [X].
A little later in the same entry the mother says:
My Solicitor has suggested, that we both attend counselling, as it would benefit both of us, so that maybe you can learn, how to deal better with the breakup of our marriage, and to know that your behaviour is indeed intimidating, and controlling, and is not at all good for [X]. As you are aware, I am already in counselling with Domestic Violence for some time, to learn to deal with the situation. Your denial of the fact, that you emotionally abused me, during our marriage and is still ongoing, is very concerning to me.
She immediately goes on to make a complaint about the father’s care of [X]:
I noticed [X] had a bruise on her cheek, when I got her back fri the 23rd June. I do realize she is only 1 year old, and maybe bumps into things. She was also again Wheezy. I believe you smoked outside during our marriage, but could you please continue to do this for [X]'s health, as I do smell smoke on her clothes. I only want what is best for her [X].
And then the entry concludes with a cheery chat about how delightful [X] is, and clearly displays how much her mother cherishes her:
Otherwise [X] had a lovely week, walking, talking and having fun. She goes with leaps and bounds in her progress, it’s joy to see.
She loved playing with her baby cousins, as they are getting older too, there is more interaction, [X] is very sharing and sweet. At our mothers group, as it was raining, we decided to bake biscuits, [X] loved it, they all had so much fun, especially eating them. [X] has a good appetite.
[X] has no cold and no nappy rash. [X] loves going to the Library, looking at books, as she loves story-time.
[X] has been welcomed in our church community, where there are many young families. She thrives on her healthy food and sleep routine, as written in contact book, and enjoys our daily walks and going to the park.
[Ms Vogel]
It is noted that the orders that were in place at the time (of 9 February 2006) included a provision that:
The parties institute the use of a communication book in which to convey any information regarding the welfare of the child to each other, such book to be passed between the parties during contact changeovers. The mother to include in the said book a detailed routine for the child to be adhered to as closely as possible by the father.
The father was having two days and one night every week.
The father’s response, dated 2 June 2006, includes:
it is pleasing to see that you have provided me with a little more info about [X] this week however, as I have asked in the past, could you please refrain from continually making wild and unfounded allegations and assumptions. I am an extremely good and loving father to [X] and consider [X] first in every I do. cont –
As you have mentioned, [X] has been accepted into the church group. could you please advise me when and if you intend to christen [X]. as I believe I should be given the opportunity to attend in some way, what could possibly be an important developmental stage or occasion in [X]’s life, which I do not wish to miss. as per your solicitors advice re counselling. I registered with Relationships Aust some 6 months ago in an attempt to open some form of communication channels between us for the sole benefit of [X]. Therefore I would be happy to attend a joint Counselling session to facilitate open communications lines between us for the benefit of dahlia’s development and well being. Also please do not hesitate to contact me if you need any help with [X].
Take care
Mr Leitner.
This is a categorical denial of allegations, which, of itself does not answer the question of whether there has been intimidation and/or other emotional abuse.
It does not seem to me that a person saying that they experience an interaction as intimidating necessarily means that the alleged perpetrator intended intimidation. A style of communication may develop between two people which is unhealthy, and unproductive, but that of itself does not make it abusive. This may be more pronounced when there has been a close emotional attachment which has broken down and emotions are continuing to run high. The continuing interaction due to the parenting of a young child may heighten the emotional response.
The father presented in Court as a man of firm views who considers that he has had to unnecessarily defend his honourable position. The communication book contains a number of denials by him and repeatedly asks the mother to cease her unfounded allegations.
The mother presents as inclined to think the worst of the father, and as a mother who finds it difficult to accept a father’s equal love of and from a child.
I have not been able to form the view from the evidence that the parties’ relationship was emotionally abusive, in the past or currently. I do accept that communication is poor and the parties have been unable to both put past issues into perspective in a joint focus on the best outcome for [X].
I do not hold any great hope for future improvement in this regard. There are agencies which provide skilled assistance for such parents, but a favourable outcome is surely dependent on a joint, albeit, separate effort.
Age of overseas travel
The father’s application in October 2008 to have [X] travel overseas with him was dismissed.
Both parents now seek orders about future overseas travel, no doubt, in part, because they each have Dutch heritage and the possibility of visiting relatives in Holland. They have agreed to the process by which overseas travel is to be facilitated, but not the age at which it may first occur. The mother seeks that it not occur until [X] is seven years of age (that is, in 2012) and the father seeks that there be no such age restriction.
The mother’s concerns about earlier travel for [X] previously arose from [X] not having been away from her for an extended time and the potential for [X] to be distressed by the experience and unable to be comforted by her mother, and further the coldness of a European winter being too much for [X]’s health. The mother also considers that [X] would not benefit from a trip at an age when she would be too young to remember and confused by strangers and new places.
The agreement that the parties have arrived at allows for overseas travel during a time when the child is otherwise with the parent, unless otherwise agreed. The mother’s earlier concerns about alienation or alienating practices will therefore have no more opportunities to occur than if the time was spent in Australia.
There is no medical evidence supporting the notion that overseas travel at any particular time of the year is contraindicated. Dr W’s letter of 30 September 2008 (annexed to the mother’s affidavit of
3 October 2008) fails to address that issue, and rather speaks (now irrelevantly) about length of absence from either parent. The mother has many complaints about [X]’s safety in the father’s care, none of which have satisfied me that the father is anything but a competent, caring parent. I am not satisfied that [X] would be exposed to any particular risk through overseas travel in the care of either of her parents, that would be more present between the ages of four and seven years.
The opportunity for [X] to travel with her parents in the future will no doubt be dependent on many factors, not least of which will be parental motivation to travel, and capacity to organise and fund.
I am not aware of any matters which can properly now be said to mean that it is contrary to [X]’s interests to travel overseas. Her capacity to recall a trip taken at an early age may lessen more rapidly than if a trip was taken when older. But I cannot see how that means she should not go if her parent is going and have the capacity to take her.
I will not restrict the age at which [X] may accompany a parent on overseas travel.
Further discussion and conclusion
I am most concerned about the mother’s fixated view that the father can not and chooses not to properly look after [X]’s needs. My assessment of the father does not accord with the mother’s assessment of him.
[X] has not been well served by her parents’ inability to work together. The problems with their communication, it seems to me, rests with both of them and is an issue which was present during this relationship. The difference, that I find between the two parents is, therefore, not their responsibility for their poor communication or their inability to improve it, but the parental recognition of the importance of both parents in [X]’s life which provides the basis for a meaningful relationship being encouraged, fostered and maintained by each parent of the other.
I have concluded that the mother does not have that capacity. Her criticisms of the father arise from her deep-seated view that her knowledge of, and skills in, the parenting of [X] are superior to the father’s and must take precedence, and prevent her from recognising the reality of [X]’s attachment to her father and the benefits to [X] in her father having a relationship with him which is supported emotionally and practicality, by her mother.
I do not make the same criticism of the father.
I have not been satisfied that there are issues of harm arising from the father’s case of [X], and am therefore, taking all of these matters into consideration, of the view that in the best interests of [X] having a meaningful relationship with both of her parents, that once she reaches full-time school age, she should live with her father. Until that time, she should spend week about with each parent, with her daily cares needs and/or attendance at extra-curricular activities or out of home care or education being within the province of the parent with whom she is living.
The amount of time [X] has with her mother should be maximised in recognition of not only the importance of the mother in [X]’s life and the many positive factors the mother contributes to [X]’s life, but also to lessen the difficulties which will be experienced for [X], when, as a child attending school, she can no longer move so equally between her parents. The father’s proposal for three weekends per month, is therefore preferable, to alternate weekend time. Each trip, though, must be kept as short as the distances provide. There should not be detours to the Sunshine Coast, or for a contact centre there. Changeovers should occur as a public place. The travel should be as near as possible to equidistant in terms of time travelled not distance, taken from the father’s present place of residence. If the father chooses to move further from the mother’s residence, the father should bear the brunt of any extra travel.
The orders I will make, therefore, in terms of where [X] will live and how she will spend time with each parent, this year, and then when she starts school, will be largely in terms of the father’s amended initiating application of 4 December 2008. I have specified the three weekends per month to avoid Mother’s Day and Father’s Day clashes.
The orders about overseas travel will not contain any age before which the child may not travel.
The matters about which the mother sought specific orders fall within the general responsibilities of these parents and I will not make orders further regulating the care of [X], especially as the orders provide for the father being the long-term primary carer once she reaches school age.
The orders, otherwise by consent, are clearly marked.
I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for judgment of Demack FM
Associate: E Crutchfield
Date: 27 May 2009
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