Lonsdale and Trevor
[2018] FamCA 127
•7 March 2018
FAMILY COURT OF AUSTRALIA
| LONSDALE & TREVOR | [2018] FamCA 127 |
| FAMILY LAW – CHILDREN – With whom the child lives and spends time – Equal time considered – Substantial and significant time considered – Best interests of the child are the paramount consideration – Where there are allegations of family violence – Where the mother seeks to change the surname of the children – Equal parental responsibility – Meaning of “meaningful relationship” – Where equal time would not be appropriate – Where a gradual increase in time spent would be appropriate – Where the ages of the children are varied in a significant way so that orders should be made for them individually – Where the parentage of a child is such that the child is not the child of both parties – Consideration of Part VII, Division 12A of the Family Law Act 1975 (Cth) – Where the parties cannot communicate effectively with each other – Where the children have developed secure attachments to each of the parties |
| Evidence Act 1995 (Cth) s 135 Family Law Act 1975 (Cth) pt VII, div 12A, ss 60B(1), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 61DA(2), 65DAA, 65DAC, 65DAC(3), 69ZN, 69ZT, 69ZT(1) Family Law Rules 2004 (Cth) r 15.13 |
| Amador & Amador [2009] FamCAFC 196 The Hon Justice Steven Strickland & Kristen Murray, ‘A Judicial Perspective on the Australian Family Violence Reforms 12 Months On’ (Paper presented at the Association of Family and Conciliation Courts 50th annual conference, Los Angeles, 1 June 2013) |
| APPLICANT: | Mr Lonsdale |
| RESPONDENT: | Ms Trevor |
| FILE NUMBER: | ADC | 2815 | of | 2015 |
| DATE DELIVERED: | 7 March 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 27, 28, 29, 30 November 2017 and 1 December 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lewis |
| SOLICITOR FOR THE APPLICANT: | Douglas Hoskins Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Tinning |
| SOLICITOR FOR THE RESPONDENT: | Norman Waterhouse Lawyers |
Orders
That the mother and father have equal shared parental responsibility for B born … 2008 (“B”) and C born … 2015 (“C”) (collectively “the children”).
That the children live with the mother.
That B shall spend time with the father as follows:-
(a) Commencing Thursday 15 May 2018:-
(i)For five (5) consecutive nights from the conclusion of school Thursday (or 3pm if a non-school day) until commencement of school Tuesday (or 9am if a non-school day); and
(ii)During the intervening week, from the conclusion of school Thursday (or 3pm if a non-school day) until the conclusion of B’s football training (or 6pm whichever is later).
That B spend time with each party for one half of all school holiday periods PROVIDED THAT in 2018 and 2019 the Christmas holidays shall be on the basis of alternate weeks unless agreed otherwise.
That C shall spend time with the father as follows:-
(a) Commencing Thursday 15 May 2018:-
(i)Each Thursday from 2pm until 6pm; and
(ii)Each alternate Sunday from 11am until 6pm;
(b) Commencing Term 1 2019:-
(i)Each Thursday from 2pm until 6pm (or the conclusion of school until 6pm once C commences school); and
(ii)Each alternate weekend from 9am Saturday until 6pm Sunday on the same weekend that B is otherwise in the father’s care pursuant to these orders.
(c) Commencing Term 3 2020:-
(i)Each Thursday from the conclusion of school (or 3pm if a non-school day) until 6pm;
(ii)Each alternate weekend for two (2) consecutive nights from the conclusion of school Friday (or 3pm if a non-school day) until 6pm Sunday on the same weekends that B is otherwise in the father’s care pursuant to these orders.
(d) Commencing Term 1 2022:-
(i)Each Thursday from the conclusion of school (or 3pm if a non-school day) until 6pm;
(ii)Each alternate weekend for three (3) consecutive nights from the conclusion of school Friday (or 3pm if a non-school day) until the commencement of school Monday (or 9am if a non-school day) on the same weekend that B is otherwise in the father’s care pursuant to these orders.
(e) Commencing Term 1 2023:-
(i)Each Thursday from the conclusion of school (or 3pm if a non-school day) until 6pm;
(ii)Each alternate weekend for four (4) consecutive nights from the conclusion of school Friday (or 3pm if a non-school day) until the commencement of school Tuesday (or 9am if a non-school day) on the same weekend B is otherwise in the father’s care pursuant to these orders.
(f) Commencing Term 1 2024:-
(i)Each Thursday from the conclusion of school (or 3pm if a non-school day) until 6pm;
(ii)Each alternate weekend for five (5) consecutive nights from the conclusion of school Thursday (or 3pm if a non-school day) until the commencement of school Tuesday (or 9am if a non-school day) on the same weekend B is otherwise in the father’s care pursuant to these orders.
(g)Until the conclusion of the 2018/2019 Christmas school holiday period C shall spend time with the father during school holiday periods as set out in paragraph 5(b).
(h)Commencing April 2019 C shall spend time with the father during school holidays each alternate weekend for two (2) consecutive nights from 3pm Friday until 6pm Sunday.
(i)Commencing October 2020 C shall spend time with the father during school holidays each alternate weekend for three (3) consecutive nights from 3pm Friday until 9am Monday.
(j)That during the July and October 2021 school holiday periods when C shall spend time with the father for four (4) consecutive nights from 3pm Thursday until 3pm Monday.
(k)Commencing during the 2020/2021 Christmas school holiday period C shall spend time with the father as follows:-
(i)Each alternate weekend for five (5) consecutive nights from 3pm Thursday until 9am Tuesday.
Christmas
Commencing 2018 and each alternate year thereafter B shall spend time with the mother from 10am on 24 December until 10am on 25 December and commencing 2019 and each alternate year thereafter B shall spend time with the father from 10am on 24 December until 10am on 25 December and with the mother from 10am on 25 December until 10am on 26 December.
That during the 2021/2022 Christmas school holiday period C shall spend time with the father for six (6) consecutive nights each alternate week from 3pm Wednesday until 3pm Tuesday.
Commencing during the April 2022 school holiday periods and each school period thereafter C will spend time with each of the parties for one half of all school holidays on a week about basis in line with the period that B spends in the care of each party.
That if the children are in the care of the mother pursuant to these orders on Father’s Day in 2018 THEN they shall spend time with the father from 11am until 6pm PROVIDED that if the children are in the care of the father on Mother’s Day in 2018 THEN the children shall spend time with the mother from 11am until 6pm.
The children are to spend time with the parent who is celebrating their birthday (provided it is a non-school day) from 10am until 4pm and if it is a school day from the conclusion of school until 7pm unless otherwise agreed in writing between the parties.
In the event of either child’s birthday, the children are to spend time with the parent who does not have the care of the children on that day from the conclusion of school until 6pm and if a non-school day from 3pm until 6pm unless otherwise agreed in writing.
That all handovers that cannot be conducted from the children’s school(s) or childcare centre(s) shall take place at McDonald’s Restaurant, D Street, Suburb E unless otherwise agreed in writing between the parties.
That in the event that the father is unable to personally attend at handover for any reason, the father’s wife, sister, mother or father are able to attend on the father’s behalf and in such event the father will use his best endeavours to provide the mother with advance notice by SMS or email at the earliest reasonable opportunity, but in the absence of notice the father’s nominated family member shall be entitled to effect handover.
That the children shall communicate with the parties by way of Skype/Facetime or such other similar form of communication as may be requested, but in any event at least on each Monday and Wednesday at 6pm unless the parties have agreed otherwise.
Subject to whether the mother is able to solely pay for B’s private school fees and she elects to continue his primary education at F School, the parties take all steps necessary to enrol B to attend at such public school as may be agreed in writing.
That the parties are to take all steps necessary to ensure that C attends the same primary school as B for such period as they both remain at school.
That each party do inform the other as soon as is reasonably practicable of any medical emergency involving either of the children whilst in that parties care and do authorise the other party to speak with any medical professional and obtain copies of any report.
That each party be permitted to attend all school or sporting functions of the children to which parents are usually permitted to attend PROVIDED HOWEVER:-
(a)Neither party is to approach the other party at any children’s school, sporting or other event at which both children may be in attendance; and
(b)Neither party shall attend at the school, kindergarten or childcare during the time that is outside of their scheduled time with the children unless provided for in this order.
That the parents use and exchange at handover a communication book in respect of all issues concerning the care, welfare and development of the children.
That each parent forthwith inform the other of any medical emergency involving the children including the name, address and contact details of the treating medical practitioner.
That the mother be restrained and an injunction granted restraining her from referring to either child by the surname “Trevor” or allowing any other person to do so.
That each party shall keep the other informed of a current mobile telephone number, email address and their current residential address and any change thereto.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lonsdale & Trevor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 2815 of 2015
| Mr Lonsdale |
Applicant
And
| Ms Trevor |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Amended Initiating Application filed 10 August 2017, Mr Lonsdale (“the father”) seeks parenting orders in respect of B born in 2008 (“B”) and C born in 2015 (“C”) (collectively “the children”).
By Amended Response filed 25 August 2017, Ms Trevor (“the mother”) opposes the orders sought by the father.
Final orders for property settlement were made by consent on 13 September 2017. Resolution of the current proceedings will settle the outstanding parenting issue between the parties.
The father is the biological parent to C but not B. B’s father is Mr G (“Mr G”). He did not participate in the proceedings although the mother raised her encouragement of a relationship between B and Mr G to the extent that they now see each other on an ad hoc basis.
B considers the applicant father to be his father. The father seeks orders for each of the children to spend increasing time with the father, but ultimately will result in equal time and shared care.
The father’s view of the mother is that she is resistant to him spending regular and significant time with the children and is not supportive of him having an ongoing relationship with them.
The mother considers that she has been the primary caregiver. C was born after the parties had separated.
The mother raises an allegation that she was the victim of significant domestic violence perpetrated by the father during their relationship. She considers that the father represents a threat to her and that he fails to appreciate or ignores the deleterious effect sustained by her from his alleged conduct.
In particular, the mother raises the allegation that the father raped her repeatedly during periods when she suffered the symptoms of Narcolepsy and was either not able to resist the father’s conduct or was unaware that she had been the subject of sexual assault until the following morning when she observed the aftermath of sexual intercourse.
The consequence for the mother is that she seeks sole parental responsibility. The father seeks equal shared parental responsibility.
Notwithstanding the serious allegations made by the mother, she nonetheless promotes that B and ultimately C should spend significant and substantial time with the father. The mother asserts that there is little opportunity or example of the parties being able to communicate at a level necessary to enable consensus parenting to take place and in any event, each are mistrustful and suspicious of the other’s motive and behaviour.
DOCUMENTS RELIED UPON
The father relies upon the following documents:-
(1)Amended Application filed 10 August 2017;
(2)Trial Affidavit of father filed 10 August 2017;
(3)Trial Affidavit of father filed 8 September 2017; and
(4)Trial Affidavit of Ms Lonsdale filed 10 August 2017.
The mother relies upon the following documents:-
(1)Amended Response filed 25 August 2017;
(2)Trial Affidavits of mother filed 25 August 2017 and 20 October 2017;
(3)Affidavit of Mr J filed 30 August 2017; and
(4)Affidavit of Ms K filed 16 November 2017.
At the commencement of the proceedings consideration was given to the application of Pt VII – Div 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular the principles applicable to parenting cases as set out in s 69ZN of the Act and issues of evidence that arise from a consideration of s 69ZT.
In circumstances where the mother alleges that the father has sexually assaulted her it may well have been reasonable for either party to apply to dispense with the provisions of s 69ZT in preference for the greater evidentiary rigor of the Evidence Act 1995 (Cth) (“the Evidence Act”).
No application was made by either party and accordingly the admissibility of evidence was determined by reference to s 69ZT(1) of the Act.
Pursuant to s 135 of the Evidence Act and the application of Rule 15.13 of the Family Law Rules, I heard and determined objections to evidence promoted by each counsel.
BACKGROUND
The father was born in 1980 and is self-employed in his own business. He contracts his labour on a casual basis and holds trade qualifications.
The mother was born in 1984 and is employed in a clerical position with the Public Service.
The parties do not agree on the date of commencement of cohabitation. The father asserts a commencement date in May or June 2007, whereas the mother considers July to have been the more likely date.
In terms of the orders that are to be considered by the Court, the date of commencement of cohabitation is of little moment other than to explain on the father’s case, but not the mother’s position, why he was not aware that he was not B’s biological father.
B was born in 2008. The parties married in 2009 and separated on 12 December 2014. C was born in 2015, approximately one month after separation.
The children have remained in the primary care of the mother and have spent time with the father, more so in relation to B, but restricted by the mother’s insistence of the father’s time with C being supervised.
During the period of cohabitation the father was employed as a fly in/fly out worker on either a three week or two week on/off roster.
There is some difference between the parties as to the extent to which the father was able to physically engage with the children.
The father suffers from a form of inflammatory rheumatic disease.
The condition is painful and the father’s employment exacerbated his symptoms and resulted in constant pain.
Following separation the father left the former matrimonial home. The mother was eight months pregnant with C.
The father formed a new relationship with Ms Lonsdale (nee J). Her cultural heritage is founded in Country L. She has been residing with the father on a fulltime basis since 14 November 2016. Ms Lonsdale and the father married in 2016. She has casual employment.
The mother has formed a new relationship but it is at an early stage.
Ms Lonsdale and the mother have not met, although they each impressed as being prepared to communicate with each other to enable better continuity of parenting and care as the children transition from one household to another.
The mother had been in a relationship with Mr G immediately prior to the mother commencing a relationship with the father.
Soon after the commencement of the relationship with the father, the mother became aware that she was pregnant.
Because of certain physiological irregularities that the mother experiences, the mother believed that the father was B’s father.
It is the mother’s position that it was only after separation from the father and following a chance encounter with Mr G and then a resumption of a social relationship with him that the spectre of Mr G being B’s biological father was raised.
Mr G agreed to participate in a paternity test, which was conducted in 2016 by Genomic Diagnostics. The test indicated a 99.9991 per cent probability that Mr G was the biological father of B.
The mother did not discuss the results with the father until she caused her solicitors to send a letter to the father on 9 September 2016. The mother eventually told B of his parentage on 24 September 2016.
B has spent irregular but relatively frequent time in the home of Mr G and according to the mother the child appears interested to continue his relationship with his biological father. B’s position as expressed to the family consultant corroborates the mother’s observations, but confirms that B very much considers Mr Lonsdale to be his “real father”. His relationship with Mr G is embryonic but developing.
The current orders provide for B to spend time with the father during school term from the conclusion of school on Friday to 9am or the commencement of school on Tuesday and for significant block time during the end of term school holidays.
The father spends time with C from 11am to 4pm each Thursday and Sunday with handovers taking place at C’s childcare centre, or otherwise at the McDonald’s Restaurant, Suburb E.
PROPOSALS OF THE PARTIES
The father seeks orders that the parties have equal parental responsibility for the children and that as and from 28 February 2018 B shall spend a six night block per fortnight with the father, with three hours on the intervening Tuesday to coincide with B’s football training.
As and from 26 February 2019 the father proposes that B lives with each of them on a week about basis.
The father proposes that B is to spend one half of each school holidays with the parties on a week about basis.
The care arrangements for C are significantly more restricted. Until the commencement of Term 1 in 2019, the father seeks each Thursday from 2 pm to 6 pm and each alternate Sunday from 11 am to 6 pm.
From Term 1 2019 to Term 3 in 2020, time is extended on the weekend to include an overnight from 9am Saturday to 6pm Sunday which is to coincide with the weekend that B is otherwise in the father’s care.
Thereafter, the father seeks a graduated increase in time represented by an extra night in each alternate weekend until 2025 when the father expects C to live with each of the parties on a shared care and week about basis. The father seeks time with the children over the Christmas period, Father’s Day, Easter and birthdays. In particular, the father proposes that B and then when C, when she has reached primary school age, attend M School or such other school as may be agreed in writing between the parties.
The mother also seeks expansive orders.
Presumably because the mother considers that the parties would not be able to effectively co-parent and in particular to satisfy the provisions of s 65DAC if a decision is required to be made about “a major long-term issue in relation to the child”, she does not consider that the parties could satisfy the provisions of s 65DAC(3):-
The order is taken to require each of those persons:
(a)to consult the other person in relation to decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
The mother promotes that B would spend four nights a fortnight with the father comprising in one week from the conclusion of school Friday to the commencement of school Monday and in the other week from the conclusion of school Thursday to the commencement of school on the following Friday.
The mother proposes block time in each week of the school holidays.
The parties are not significantly apart in terms of arrangements during the Christmas period, Father’s Day, Mother’s Day and the birthdays of the parties and the children.
As a reflection of the child’s age, The mother’s proposal is that C’s time is restricted to daytime only with overnight time to commence as and from the Term 3 in 2019 increasing to two nights a fortnight and some hours in the intervening week, and from Term 1 in 2022 increasing to three nights per fortnight with block time during school holidays.
EVIDENCE
The father
The father’s evidence is contained in his Trial Affidavits of 9 August 2017 and 8 September 2017. His evidence was supplemented by examination in chief.
The father denied that he had ever caused B distress by the use of pepper in B’s nose or chili in his mouth.
He specifically denied that he had ever made a threat to Mr G and countered the allegation by indicating a preparedness to facilitate a relationship between B and Mr G and had assisted B in arranging a Father’s Day present for Mr G.
There is ongoing difficulty between the parties. The mother alleges that of recent date the father did not return the child’s school clothes. He agreed that this had not happened on the last two occasions and was in response to the mother not providing appropriate school clothing.
Child support has also been problematic. The parties had an informal agreement that the father would pay a sum of child support to the mother. The father paid child support in the sum of $750 per month until February 2016, but in the absence of the mother providing appropriate payment arrangements child support has not been paid since, although the father does pay school fees, books and stationery, football and extra-curricular fees and excursions for the child.
In cross examination the father was challenged as to the extent to which he was prepared to promote a relationship between B and Mr G. The father agreed that such a relationship should develop, but he was firm in his stance that his own relationship with B should be considered of greater priority.
The father’s position in respect of B attending a public school as opposed to his current private school appears to be founded in the father’s assessment that his financial circumstances would not permit him to contribute to the tuition and other expenses. If the mother is prepared to bear the costs of B attending his current private school then the father is content for that to occur.
The father’s first choice for a local State school may no longer be possible given his evidence that he has signed a lease on a rental property out of his preferred school’s catchment area.
I do not consider, on the father’s evidence, that there is more that needs to be considered over and above his purported inability to contribute to the likely increased costs of B remaining at a private school.
The father agreed that he remains mistrustful of the mother and does not accept the mother’s assertion that both B and C are unsettled and anxious when they return from time with him.
The parties do not seem to have reconciled their differences. By reference to text messages appearing at Annexure “K” to the mother’s trial affidavit and the father’s Facebook page at Annexures “N”, “O”, and “P” their mutual dislike and mistrust is palpable.
The response of each of the parties to the other as evidenced by their text messages does little to assist either party. On 15 December 2015 the father shared an image posted on the “Fathers are just as important” Facebook page to his own Facebook page that suggests “the real deadbeat is the woman who keeps her child from a loving father”. This may well be how the father considers the mother but should not become the basis of the father’s online persona, particularly when it invites response from the friends and family. The Facebook posts do nothing to dispel the level of mistrust between the parties.
To his credit, the father did concede that he was disparaging of the mother and her conduct, at least as he perceived it, by her keeping the children from him.
The father rejects any allegation that he had sexual intercourse with the mother without her consent or whilst she was asleep or in a drug-induced state.
He did agree that on two occasions he lost control and punched a wall in 2010 and later, during a violent argument concerning the involvement of Mr G he smashed a hole in a door.
The father does admit that at times the parties engaged angrily with each other, but denies ever physically assaulting her or calling her “a bitch and a cunt”.
The father is aware of the mother’s assertion that she suffers from Narcolepsy. The father did not see any symptoms that were consistent with that condition and specifically denies that he engaged in sexual intercourse with the mother without her consent during a Narcolepsy event.
The father conceded that there was no excuse for his behaviour in punching the wall and the door. Whatever the mother may have done could not constitute an excuse for him damaging property and causing obvious fear.
It was put to the father that the mother is now not able to interact with the father because she feels nauseous, sick and anxious. The parties communicate rarely by email, but more often by SMS or by reference to a communication book. They have not spoken to each other for nearly two years and acknowledging that when they do meet little more is said than a polite greeting, the father concedes that their relationship is effectively non-existent.
There remains some uncertainty on the evidence as to whether the tone and level of communication between the parties has improved.
The mother considers that any expression by B of wanting to spend more time or equal time with the father is as a result of the father coaching B and placing him under undue pressure.
The father was referred to paragraph 74 of the mother’s trial affidavit where she records a number of statements allegedly made by the child following his return from the father’s care. The difficulty with that evidence is that it lacks any particularity, detail or context. It invites the obvious response from the father that he denies that he in any way influences the child to express his view as to the conflict between the parties.
There is however a suggestion from the mother that worrying statements made by the child have diminished with time.
Paragraphs 80.9 and 80.10 of the mother’s Affidavit in reply filed 20 October 2017 were put to the father. He specifically denied that there had ever been an incident in the early months of the mother’s pregnancy with C that he abused or threatened her. At no stage did he push or shove the mother. He denied yelling at her as alleged.
He also denied an allegation that in November 2014 that he yelled at B using offensive language following an altercation with B.
Mr N
Mr N is a social worker who provided counselling services to the father for anger management. I accept the counsellor’s evidence that the father was cooperative and ready to engage in the process and acknowledged the impact of his behaviour in recognising that aggressive conduct is counter-productive.
Ms Lonsdale
Ms Lonsdale relied upon her Affidavit filed 10 August 2017. She was born in Country L and relocated to Australia in November 2016.
Following an online romance, the father and Ms Lonsdale married in 2016. She has employment in hospitality and considers that she has formed a close relationship with the children.
Ms Lonsdale takes B to school on occasions and assists with tasks at home to ensure that he is appropriately presented. She has also assisted in collecting C from childcare.
Her observations are of two children that to her mind are developing appropriately and seem to enjoy their time with the father.
There is no animus displayed in her evidence against the mother.
Under cross examination she agreed that it was the intention of the father and her to start a family in 2018.
She has not as yet spoken directly to the mother but would do so if it may assist in the children transitioning from one party to the other.
She denied that she had been part of any conversation with the father that could be considered derogatory to the mother, or that she had witnessed the father prompting or promoting B to express a preference for his living arrangements.
I consider the evidence of Ms Lonsdale to be both impressive and reliable. She is likely to be a moderating influence on the father and the mother can have some confidence that whatever her misgivings may be of the father’s ability to parent the children, Ms Lonsdale should be a comfort.
The mother
The mother’s evidence was contained in her Trial Affidavits filed 25 August 2017 and 20 October 2017.
With leave, she expanded upon her assertion that the father was authoritarian and was aggressive in his discipline towards the children. She stated that the father would call B “a little shit”, that he would use a belt in an intimidating way and would use a chilli based sauce in B’s mouth if he considered B’s language or response was inappropriate.
The mother confirmed that she does not want child support and corroborates the father’s evidence that he was not able to continue child support payments after February 2016 without her providing the relevant information.
She agreed that the father had requested account details but was not able to better explain why she did not favour him with a response.
The mother was resolute in her assertion that notwithstanding the father’s aggressive and unpleasant behaviour, she did all that she could to support his time with both children.
Throughout 2015 the father was working three weeks away, with three weeks off in Adelaide. The father saw C three times per week during the weeks that he was in Adelaide for approximately one hour duration per visit. The mother facilitated the father’s time, though she alleges this was made difficult by the father taking the opportunity to harass her, alleging that the breakdown of the relationship could be contributed entirely to the mother’s conduct.
The mother’s attention was drawn to the interim orders sought in her Response filed 2 November 2015 and in particular paragraph 10 which provided for the time that C was to spend with the father to be supervised by the mother. The affidavit in support of the orders does not allege that there has been conflict between the parties during the periods of the mother’s supervision. Whilst the affidavit refers to the mother’s allegation that the father is a perpetrator of family violence, there was nothing to suggest that his behaviour towards the mother was in any way aggressive. The inference to be drawn from the mother’s earlier affidavit does not support her current complaint that the father took the opportunity when spending time with C to disparage or intimidate the mother.
There was much focus on the circumstances by which the mother became aware that Mr G was the biological parent of B and whether and in what circumstances the father was informed.
She did concede that after she had renewed contact with Mr G she facilitated and promoted B spending time with him. She acknowledged that she did not tell the father of the arrangement. The significance of Mr G least as far as the parties are concerned is the extent to which his interest in the child should be brought to account as a factor in determining orders that will best promote B’s interests.
The father maintains that the mother has promoted Mr G with at least in part an intention to disrupt the father’s ability to have a relationship with B.
In December 2014 the mother had referred B to Ms K, psychologist, to assist in behavioural difficulties which manifested as a dislike of school, possible learning issues, oppositional and defiant behaviour in class, anger, anxiety and low self-esteem.
In September 2016 the mother and the father attended upon Ms K to discuss how B could be informed that Mr G was his biological father.
Reference was made to Exhibit “2” in the proceedings comprising an email from the mother to Ms K. The mother was tested on why Ms K was not told that the mother was promoting a relationship between B and Mr G. It may have been a relevant consideration for the psychologist in circumstances where issues affecting the child maybe at least in part explained by the uncertainty of B’s position.
The report of Ms K dated 31 October 2017, being Annexure “B” to her Trial Affidavit of 16 November 2017, confirms that B was made aware of and had been seeing Mr G since sometime in 2015. Whilst Mr G is B’s biological father, he has declined to participate in the proceedings and pursue orders in relation to B.
It is important that B understand his parentage. His relationship with Mr G is demonstrably supported by the parties. That is a different proposition to suggesting that B’s uncertain relationship with Mr G should impact on B’s time with either parent. It is reasonable to find that whilst the father supports B’s relationship with Mr G, it is the mother that is likely to facilitate B spending time with him.
It can be reasonably assumed that the current ad hoc arrangement will continue. On that basis I do not consider that the separate proposals of the parties need to be constrained or amended to enable B to continue seeing Mr G.
The mother did not resile from her allegation that the father would engage in sexual intercourse without her consent or knowledge.
When asked with what level of frequency did she consider she had been the subject of sexual assault, the mother stated that it occurred on average once per month. She formed the belief that she had been the victim of sexual assault by reason of her underwear being rearranged and stained with semen.
The alleged sexual assaults occurred in 2008 and 2009. There were two or three occasions when she believes she had a recollection of being sexually assaulted.
The parties commenced cohabitation in 2007. B was born in 2008 and the parties married in 2009.
The mother was challenged to explain why if she had been the victim of repeated sexual assault and rape it was not raised until these proceedings. Moreover, if the mother had been both aware or at least highly suspicious of the father’s violent conduct, the question is raised as to why she continued the relationship and returned to South Australia.
Whilst the mother’s evidence is not persuasive in respect of her contention that she was the victim of repeated and violent sexual assault, her evidence of the husband’s anger and poor behaviour was impressive. She agreed that she did not give the father information as to where C went to pre-school or school. Her concern was that he would turn up at school for sports, coaching or excursions. She did make the concession that whilst his attendances were not regulated and that this was a point of contention and concern, his behaviour when in attendance at school was appropriate.
The mother was properly prepared to concede that the father would have liked to know the childcare centre where C attended five days a week for a period of two years.
During the evidence the mother revealed that C had been seeing a psychologist over some considerable period of time and as recently as June and July 2017. The mother did not tell the father that the child was being taken to a psychologist and it is uncertain as to the basis of the appointments other than a concern that the mother has that the child was not sleeping well.
No communication was forwarded to the father relating to an alleged sleep issue affecting C or the need for her to have psychological assistance.
It would be reasonable to understand that the mother might seek professional assistance as to how to deal with the sleep problem, but given C being two years of age, it is difficult to imagine the process and form of the therapeutic intervention.
It may be that C does have a sleep problem, however the mischief relates to the mother’s refusal to disclose either her concern or the therapeutic process that she had embarked upon.
Ms O records the following in her updated Family Assessment Report dated 23 February 2017:-
… Further [the mother] argued that, it was [B’s] choice to refer to [the father] as “[first name]” and [Mr G] as “dad” this was based on her experience of the two men. [B] found the demands made by [the father] intrusive and stated for example, “Why does he have to interfere with our lives”.
The mother denied that she had in any way influenced B to refer to Mr G as “Dad”. Rather, she considered that B had come to his own decision.
As a reflection of the mother’s attitude, she was clear that Mr G should be referred to as “Dad” and the father only as “[Mr Lonsdale]”.
It was apparent from the mother’s presentation that virtually every aspect of dealing with the father, particularly where it involved a discussion and/or a consensus being reached about the children’s activities was problematic. The mother acknowledged that B enjoyed the father’s involvement in his soccer and football. She was supportive of that aspect of their relationship and highlighted that the orders she seeks promote some hours in the intervening week to enable the father to engage in coaching the child’s football and soccer teams. They cannot however agree on other extra-curricular activities. All communication is truncated and terse.
The mother agreed that the parties have been able to maintain a communication book and whilst generally appropriate, it seems that each of the parties constrain themselves to provide the minimum necessary information.
The mother considers that overnight time for C should commence when she is 4 ½ years of age and not 4 years of age as was her original view expressed to the family consultant in the first report.
As discussed, whilst I am not satisfied that there is any evidentiary basis at all for the mother’s assertion that over a period of two years she had been the subject of rape and sexual assault with a frequency approaching once per month has been made out, I did find the mother’s evidence on the father’s aggressive presentation to be convincing.
Mr J
Mr J is a clinical counsellor and lecturer. He has significant qualification enabling him to provide counselling services. He holds a Bachelor of Science, a Diploma in Education, a Master of Social Science (Counselling) and various Graduate and Postgraduate Degrees in Theology.
He provided counselling services in nine sessions to the parties between 29 October 2010 and 8 June 2011. He saw the father on his own on two occasions and the mother on eight occasions. It appears that he has continued a professional relationship with the mother.
His evidence arises from two reports dated 30 October 2015 and 23 March 2017. Generally, the counsellor found the parties to be reasonable and competent. He recorded the mother’s continued assertion that she was intimated by the father and had been the subject of family violence.
As has become a common practice in parenting cases, counsel were keen to scrutinise the notes of the counsellor. I did not find the process of assistance. There were errors and omissions particularly in respect of the date of some of the notes and whilst they were contemporaneous, the notes were at best a summary, not a verbatim recitation of that which had passed between the parties or either of them and the counsellor.
There was a reference attributed to the mother that she was confused as to whether the father had engaged in sexual intercourse whilst she was asleep.
I have no difficulty in accepting the evidence of Mr J but I find that it was unhelpful. His evidence was not as to any level of expertise, nor was he called for that purpose.
His evidence did not assist the Court in determining any of the factual disputes.
Ms K
Ms K has been involved with the parties since December 2014 when B was referred to her by the mother. The issues concerned the child’s behaviour, disclosures as to domestic violence perpetrated by the father, B’s relationship with his parents and C and in particular the relationship with Mr G.
Ms K has not seen any of the affidavits and it could not be that her evidence is called to contradict or provide a contrary opinion to the family consultant. Ms K records that B had been troubled by the aggression in the household and in particular his father’s shouting. He also reported that he had been smacked frequently by the mother and on occasion with a wooden spoon.
His relationship with the father had improved since February 2016. It appears that B was not reporting his father being aggressive or shouting.
It is a concern that B reported his knowledge of the father putting his fist through a door and a wall in 2010 and 2011. B would have been 2 or 3 years of age. I do not consider it likely that he would have an independent recollection of the incident but rather, there has been reinforcement from the mother for his unlikely recollection.
B has a strong relationship with C and Ms K records that B’s observation is that at times C had difficulty separating from the mother, but was now fine in the father’s care.
The summary of B’s relationship with Mr G suggests the child has navigated a difficult emotional minefield. It suggests that whatever the original motives of the mother may be, both she and the father have provided the child with sufficient support that he is able to rationalise the position and status of the significant adults in his life.
It is Ms K’s opinion that the child is overwhelmingly stable and happy. The circumstances as at September 2017 are those of a child well-adjusted in circumstances where he lives with his mother and spends significant time with his father.
The family consultant
By order made 13 December 2016, Ms O (“the family consultant”) prepared an updated family assessment report dated 23 February 2017.
The report was comprehensive of recently filed affidavit material, and involved interview and observation of the parties, Ms Lonsdale and the children. Input was also obtained from B’s Acting Principal.
Mr G did not participate in the assessment.
The family consultant had previously submitted a report to the Court dated 11 July 2016. The recommendations were that the parties have equal shared parental responsibility, the children reside with the mother and that the father’s time as previously ordered with B on 12 May 2014 namely, from Friday after school to the commencement of school on Monday on alternate weekends and in on the intervening Thursday from after school until Friday morning continue. The father’s time with C was supervised and the earlier report recommended that it increase to five hours twice weekly until she is aged 4 years with an increase in time on each alternate weekend from Saturday morning to Sunday afternoon and for three hours on the intervening Thursday when B is present.
At the date of the earlier report the issue of B’s parentage had not arisen.
The proposals for each of the parties were put to the family consultant. Whilst not containing the detail that each of the parties now seek, nonetheless the family consultant had an accurate understanding of the broad proposals of the parties, noting that at that time the mother sought that B spend one weekend a month with the father and the alternate weekend with Mr G.
The presentation of the parties to the family consultant for the updated report process was consistent with the difficulty that they had expressed regarding the ability for the children’s parents to reach a compromise and consensus. At the time of interview the report accurately records the father’s presentation being fearful that the mother had deliberately promoted B’s relationship with Mr G as a strategy to disrupt his application.
Each of the parties allege that the other is openly critical of the other and that B has become invested with the worst aspect of the dispute.
The father proposed that his time with C be extended and unsupervised. At that time he had enjoyed approximately 100 supervised occasions with C and whilst the circumstances were difficult with the mother taking up the role of supervisor, he nonetheless considered that a strong and positive bond developed with C.
The father agreed that a co-parenting arrangement at least as at the date of the assessment was non-existent. He hoped that matters would improve and that the parties would be able to co-parent effectively in the future.
The mother presented to the family consultant as not yet having recovered from what she explained was a violent relationship with the father.
The mother accepted that the father had attended a number of parenting and anger management courses, but would not accept that there was a change in his behaviour and conduct. The mistrust between the parties was such that the mother considered the father had been merely “ticking the boxes”.
The mother strongly asserted to the family consultant that she supported the children having a relationship with the father despite her concerns. She rejected the father’s allegation that she was being obstructive or that she had manipulated for her strategic advantage in the litigation the developing relationship between B and Mr G. She did not agree that she had prompted B to refer to the father as “[Mr Lonsdale]” and Mr G as “Dad”.
B was interviewed. C was not.
The following is recorded:-
67.[B] spoke positively of his time with [the father]. He stated, “I like going to the skate park with him”. [B] stated, “I would like more time with my dad… … a week with my mum and dad”. He particularly enjoyed his father dropping him at school. His father had informed him, “I’m fighting to get more time with you”.
B also stated that he was happy with Ms Lonsdale. It appears that B has a positive relationship with Ms Lonsdale and corroborates her involvement as a modifying and calming influence.
B has clearly rationalised the knowledge that Mr G is his father. Contrary to the mother’s assertion, B is recorded as intending to call Mr G “[first name]” but that Mr Lonsdale “…knows that he is still my real dad…my mum thinks [Mr G] is my real dad”.
B is acutely aware of the conflict between the parties and understands perhaps with a greater level of maturity than his parents that each of them don’t like each other and that “I sometimes I see them do mean things to each other…they hurt each other’s feelings on the telephone”.
The observations of the father, Ms Lonsdale and the children were unremarkable. The father appeared to be able to adjust appropriately to the very different needs of B at age nearly nine years and C at two years of age.
Whilst the mother’s interaction with the children was more stilted and less free flowing than the observation of the father and the children, nonetheless there is no suggestion that the mother has anything other than a warm and close attachment with them.
It is clear that C required significant attention by the mother and B appeared somewhat put out. Whilst the observation of the mother’s interaction was “uncomfortable and stilted”, I do not consider it appropriate to draw any adverse conclusion.
The school principal and B’s teacher Ms P both gave insightful observations of B to the family consultant. At the time the principal and teacher were concerned as to the effect on B of the litigation and the relatively recent advice to him of his parentage.
Of the relationship with the father the following is recorded:-
89.It was [Ms P’s] continued observation that [B] loved [the father] and that the relationship with [the father] was of high quality. [The father] had assisted at a number of school excursions and acted appropriately and in a child focused manner with all of the children. [Ms P] observed that [B] always looked forward to seeing [the father].
The teachers concern for B arises from the complication of Mr G and the father being present at the same school functions. B’s unease appeared to have manifested itself in him seeking a closer attachment and dependency on his teacher when faced with new or uncertain circumstances.
In her evaluation, the family consultant noted positively that the father had complied with her recommendations that he undergo counselling directed to anger management.
The family consultant was not able to corroborate the mother’s concerns that C was distressed and clingy after spending time with the father. It was her observation that C showed no signs of distress and appeared both comfortable and happy in the father’s care.
The family consultant recommended that from the age of two years and six months, C spend time with the father on alternate Sundays from 11am to 6pm when B is in attendance and on the intervening Thursday for a full day instead of childcare.
The family consultant considered that B “has an established and loving father/son relationship with [the father] and this observation is shared by school staff who regularly and over an extended period have observed [the father] and [B] together”.
The mother however disputes the purported observations of the family consultant and considers that the child demonstrates behaviour consistent with anxiety.
It is recorded that the father’s aggressive behaviour has impacted adversely on B and provides the explanation for his grinding of teeth and at times oppositional and defiant behaviour.
It is an important concession by the father that he acknowledged to the family consultant “he historically acted poorly in the context of the parental relationship, which impacted [B] and that he essentially removed himself from the relationship and has taken action to behave differently”.
The family consultant was asked to consider that the mother’s presentation during the assessment interviews may well have been adversely impacted by “negotiations which triggered a past trauma response from years of being in a violent relationship with [the father]”.
The further observations of the family consultant are apposite:-
108.… It is noteworthy that the actual extent and nature of the domestic violence in the marriage continues to be a matter for evidence. Notwithstanding this, the report writer accepts that this may have been the case, however there was no evidence observed by the report writer of coercion or intimidation from [the father]. Handover at the door of the report writer’s office would likely have involved a five minute interaction between [the father] and [the mother] with the report writer able to observe and assist if required. The Court may wish to consider this observation in light of the numerous examples provided by [the father] of difficulties in communication and negotiation with [the mother] and the impact this may have for the children in the future.
The family consultant did not consider there was any basis that would support a removal or diminution of the father’s parental responsibility and at paragraph 109 the following is stated:-
… Overall the report writer feels confident in this second assessment that [the father] poses no risk to the children but that he and [Ms Lonsdale] have considerable value to add to their lives. For example, there would appear to be more to gain in [C’s] case that [the father] is provided with the name of the childcare centre she attends. The report writer cannot comment on the value [Mr G] may add to [B’s] life as he has chosen not to be party to the proceedings. The report writer has greater concern for the children’s wellbeing if the mother fails to support their relationship with [the father], as children caught up in ongoing acrimony usually experience significant emotional harm.
Her final recommendation is that B’s time with the father immediately increases to five consecutive overnights with some further hours in the alternate week to coincide with the child’s football or soccer practice and that C’s time be unsupervised and increased to two days a week for five hours with a graduated increase such that when the child is seven years old she would attend with the father for similar periods as her brother.
There was limited cross examination of the family consultant by counsel for the father. She clearly considered that the report and resultant evidence was favourable to the father’s proposals.
The family consultant did consider that when B and later C reached 10 years of age there should be a week about care arrangement implemented at the time they each respectively reach that age.
It is the evidence of the family consultant that the children have much to gain by spending time with the father and his partner and she considered the following matters to be important considerations in that determination:-
·Father is available;
·Father and [Ms Lonsdale] are highly motivated;
·Father appears to have gained significant insight into his conduct and behaviour;
·Father wants to be an active parent; and
·There are concerns in respect of the mother’s capacity and preparedness to support the father’s relationship with the children.
The family consultant was also of the view that the children should spend as much time together as possible notwithstanding there is a substantial age gap.
She also records that the parties have agreed that the children will spend week about with each other over the Christmas school holidays. She did not make any observation consistent with the mother’s assertion that B was fearful of the father.
The mother’s counsel challenged the family consultant on her apparent acceptance of reports from the father of “multiple examples of negotiation with [the mother] which he experienced as largely obstructive and with outcomes having no benefit to the children resulting in them having to communicate with lawyers only”.
The family consultant is not able to determine the evidence but rather, to record the history and to test some aspects of the history given by the parties by reference to their interaction with the family consultant and her observations of the parties and the children.
She did concede that there was no harm in the mother promoting a relationship between B and Mr G providing that it did not degrade from the relationship that the child has with the father. Whilst not doubting the parentage of B, the family consultant’s evidence was consistent with her observation that B’s primary attachment is with the parties and not with the biological father Mr G.
The family consultant was asked to consider the weight that the Court may attach to the child’s wish to spend week about with each of the parties. The family consultant accurately considered that whilst it was reasonable to accept that B wanted to spend more time with the father, little weight should be given to B’s view as to how that might occur. The obvious difficulty for the family consultant and by implication, the Court, is that each of the parties seek that their orders will span a number of years.
The father considers that the mother has resisted him spending regular and meaningful time with the children. He does not accept any suggestion by the mother that the children have a tenuous relationship with him.
For her part, the mother asserts that both she and B have been the victims of family violence perpetrated by the father. The father’s conduct has had an ongoing impact on the mother and she considers that her current presentation and the reluctance of the children to spend time with the father is a necessary consequence of the father’s conduct.
The parties each remain mistrustful of the other and neither resiled from their strong positions during their evidence.
There is, however, an obvious disconnect between the mother’s allegation that the father has been both physically and coercively violent in his conduct and the orders that she seeks which would see the current arrangements remaining in relation to B and a gradual increase of time spent with C.
The orders sought by the father seek to increase his time with the children but are predicated upon the children remaining in the primary care of the mother until they reach an age where their shared care should be considered in their best interests.
The parties are not in agreement as to parental responsibility. The mother considers that she should have sole parental responsibility, whereas the father seeks equal shared parental responsibility.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests of the child are to be considered by the application of the objects of s 60B(1).
I am cognisant of the primary considerations and additional considerations in respect of the matters as set out in s 60CC(2) and (3).
I am mindful of the directions contained in s 60CC(2A) and whilst I have regard to the allegations of the mother that during the relationship the father was a perpetrator of family violence towards both her and B, I do not approach the issue of family violence as a consideration of whether the father presents as an unacceptable risk. The mother relies upon her concerns in respect of family violence as a basis for her contention that the relationship between the parties is so fractured and redolent with mistrust that shared parental responsibility is likely to be problematic and adverse to the children’s interests.
I propose to adopt the following approach:-
(1)Give consideration of the proposals put forward by each of the parties as they were identified and presented to the Court.
(2)Have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2).
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests.
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm.
(5)Have regard to additional considerations under s 60CC(3).
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) is to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.
Section 61DA requires the Court to consider whether to apply the presumptions of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.
In that respect the provisions of s 61DA(2) are relevant:-
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
The presumption may also be rebutted if there is evidence that will satisfy the Court that it is not in the best interests of the child for the parties to have equal shared parental responsibility.
This consideration is relevant in these proceedings as the father seeks an order of equal shared parental responsibility, but the mother considers that the father’s conduct during their relationship and the current consequences of his behaviour should rebut the presumption.
If the presumption is rebutted, the Court can proceed to make parenting orders having regard to the provisions of the Act, but based on findings pursuant to s 60CC if the presumption applies (and in any event the parties seek an order of equal shared parental responsibility and it is not rebutted) then, s 65DAA requires a Court to consider whether there should be an order for equal time. If not, then substantial and significant time. The test is whether the orders would be in the best interests of the child and reasonably practicable. As was said in MRR v GR (2010) 240 CLR 461, 467 [15], s 65DAA(1)(b) requires consideration of whether equal time is feasible “requires a practical assessment”.
I am of the view that notwithstanding if the provisions of s 65DAA would not apply, if the presumption of equal shared parental responsibility is rebutted, nonetheless, the separate proposals of the parties and the orders that each of them seek would in any event require a consideration as to whether they are reasonably practicable.
PARENTING CONSIDERATIONS
Meaningful relationship
In Sigley & Evor [2011] FamCAFC 22 the Full Court undertook a review of the authorities with a view to defining “meaningful relationship” and in doing so considered at [136] the observations of the Full Court in Champness & Hansen (2009) FLC 93-407 at 83,502:-
103.The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors…
Even though the parties have a diminished level of respect of the other, their separate proposals nonetheless acknowledge that the children’s interests are best served by them maintaining a meaningful relationship.
In Mazorski & Albright [2007] FamCA 520, Brown J commented on the definition of “meaningful” and said:-
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”…when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one…
The evidence of the family consultant strongly supports the contention that the children’s best interests are served by spending more time with the father tempered by their age.
Specifically, the family consultant considered that four nights a fortnight would be sufficient to maintain a meaningful relationship. That does not necessarily mean that it is the best outcome for the child, but it is useful for the parameters to be better defined by reference to any benefit (or detriment) that might impact the children.
The family consultant is generally supportive of time extending to both children such that on and after their tenth birthdays there would be equal time enjoyed by the parties.
That view does not stand in isolation. To do so would be to avoid the long and complex history of the parties’ interaction, the complaints of the mother in respect of family violence and the potential for the destructive dispute to adversely affect the children in terms of their development, welfare and relationship with each of the parties.
Do either party pose a risk to the children?
It is difficult to compartmentalise the concerns expressed by each of the parties about the other parent. The mother does not promote the view that the father presents as an unacceptable risk to the children but rather, that his conduct and behaviour as a perpetrator of family violence has engendered in her an ongoing mistrust towards the father that is not easily dispelled.
The evidence does not support a finding on the balance of probability that the father physically assaulted B or that he was coercive in prompting B to express a view favourable to his application.
There is some support for the position that B has been influenced either directly or indirectly by the parties. He is aware that on occasion his mother does not allow the phone to be answered or places it on silent.
It is likely that the mother has expended considerable energy on promoting B’s relationship with Mr G. In evidence, the mother considered that a decision by B to call Mr G “dad” and the father by “[first name]” was B’s separate and unaided decision.
The evidence of the family consultant, based upon the exchange with B at paragraphs 70 to 72 of the second family assessment report supports a finding that B’s first preference is to maintain his primary relationship with the father (who he calls “dad”) and a secondary relationship with Mr G (who he calls “[first name]”). In circumstances where the mother’s evidence differs from that attributed to B, I prefer his evidence as likely to represent the true circumstances.
Whether the father has been deliberately coercive or not, B has clearly picked up on his father’s presentation in seeking equal time. To a child it is a fine line between a likely negative environment in the father’s home towards the mother and the father’s wish for the child to spend more time with him and the father directly trying to influence the child.
The mischief is the same; the difference is the method of delivery.
The evidence does not support a finding that either party presents as an unacceptable risk to the children. The mother is clearly anxious about the father and what she sees as his attempt to remove the children from her care to his. For his part, the father considers that the mother has deliberately obstructed any reasonable request that the children spend more time with him.
I accept the mother’s forceful presentation as a person who has been affected by family violence and whose judgment and conduct must be seen through that prism.
The evidence does not support the more exaggerated claims of the mother in relation to the father, but it is likely that over the course of the relationship there was high conflict and overtly aggressive conduct by the father.
Whilst not seen as an admission, the evidence supports the contention that the father recognises aggressive behaviour (even if it may have been in part reciprocated by the mother) was not a proper way to conduct himself and is the very antithesis of presenting a good role model to his children.
I accept that the father undertook appropriate remedial counselling and the evidence is strongly supportive of a view of a finding that the father did not merely pay lip service to the counselling process but rather, engaged appropriately and with insight.
It is an important observation of B that over a period of about six months the father’s attitude towards the mother had significantly softened and there was either a lessening or an absence of aggressive interaction.
A further feature is the involvement of Ms Lonsdale. She is at least a modifying influence and at best has greatly assisted the father in providing a safe and secure environment for the children. Her involvement is to the children’s benefit.
Children’s views
B has expressed a clear wish to spend equal time with each of the parties. C’s young age would prevent any weight being given to any expression that she may utter.
The mother promotes that the Court should place little weight on B’s expressed wish given that it was likely engendered by the father’s coercive coaching.
The father considers that significant weight should be given to B’s wish to spend equal time with the parties.
There is little or no evidence which would assist the Court in determining a real measure of the weight that should be attributed to B’s view of his circumstances. Whilst it may be an easy response for a child to consider that spending equal time with his parents is fair, that does not mean that the approach has been well considered and given mature reflection. It could not be said that B has insight into the inter-parental dispute, or whether what he seeks is likely to inflame and exacerbate the high level of mistrust that already exists.
B was not asked the question of why he thought equal time would be the right outcome.
What is important about his expressed view is that it suggests no fear of the father and a likely desire to spend more time with him, though not necessarily equal time.
The evidence of the family consultant strongly supports B’s wish to spend more time with the father. That is likely to be of greater benefit to the child than to place unwarranted weight on his expressed wish.
Nature of the relationship of the children with the parents and their partners
I accept the evidence of the family consultant that the children have a close emotional attachment and relationship with each of the parties. The observed interaction of the father and his partner Ms Lonsdale with the children was considered by the family consultant to be more relaxed than is suggested by her observations of the mother and the children being somewhat stilted. I do not place significant weight on that observation. There is no doubt that the mother has provided the children with their primary care and whilst the father seeks significantly more time with the children, nonetheless their current presentation is a reflection of their care.
Evidence supports a finding that the children, but in particular B, presented to the family consultant as more mature and a child eager to please.
The evidence of B’s school principal and class teacher suggests that there is some anxiety and insecurity in respect of his relationship with adults, but generally he appears to be better suited to dealing with the significant upheaval in his life following the breakdown of the parties relationship and the knowledge gained of the existence of Mr G as his biological father and the emphasis on that relationship by the mother.
The children appear to relate well to Ms Lonsdale and all indications are that she seeks to support the father’s role with the children rather than to supplant the mother’s role.
I have found that the environment in the father’s home is less confrontational arising from the involvement of Ms Lonsdale. It is the father and Ms Lonsdale’s intention to start a family in the near future. It is not known as to how that will impact upon the children.
Parties ability to communicate with each other
The evidence supports a finding that there is no goodwill as between the parties and whilst face to face communication is a forlorn hope, subject to them exercising some restraint, communication is possible via email, a communication book or possibly text messaging.
The mother remains resolute in her opinion of the father as a perpetrator of family violence. Whether the evidence supports that approach does not detract from the mother’s stated position. A review of the communication between the parties tends to be focused on the immediate parenting arrangements for the children.
Each of the parties are high functioning adults. It is not beyond their wit to communicate with each other in a civil and unemotional fashion.
Whilst the mother seeks an order of sole parental responsibility (opposed by the father), I do not consider that a deficiency in the parties ability to communicate is all that is required to rebut the presumption of equal shared parental responsibility.
Effect of any change on the children’s circumstances
The clear position of the family consultant is that the children will benefit from maintaining a strong relationship with each of the parties. Whilst there is support by the family consultant for the father’s proposal of equal time (graduated to take into account the ages of the children), the two concepts are not necessarily synonymous. Whilst I consider that there is merit in the increase in B’s time with his father and a more rapid introduction of more time including overnight time with C, I do not consider that the evidence supports equal time as representing the best interests of the children.
Even in a graduated fashion, the change as proposed by the father would be substantial. There is no evidence presented as to the effect on the children and there is concern that the proposal for equal time is born of an arithmetical consideration rather than an assessment of the benefit that equal time will bring to the children.
The family consultant conceded that four or five days a fortnight will ensure that the children’s relationship with their father is secure.
The concept of the mother retaining the primary care of the children, but with more time spent with the father, maintains an important level of stability for these children who have endured significant disruption to their lives.
The reality is that whilst the parties are able to communicate with each other, that is different to them being able to co-parent.
Capacity of the children’s parents and other relevant parties to provide for the needs of the children
I am satisfied that each of the parties are able to provide for the physical needs of the children. The accommodation provided and offered by the parties is adequate and I note the favourable impression created by Ms Lonsdale.
The mother has not as yet re-partnered.
It is a fortunate position that these children find themselves in that they have the support of each of their parents’ extended families.
For B life is particularly challenging given that he has not yet established the level at which he would wish to have a relationship with Mr G.
I do not consider that any orders sought by the father should in any way be subservient to the involvement of Mr G, but he is a reality in the child’s life and there is justification to construct orders that provide a balance for B.
I do not consider that these children are at risk. There is no evidence to support that proposition.
The clear evidence of the family consultant highlights the positive engagement between the parties and the children and few overt negative aspects save and except the mother’s assertion that B is frightened of his father and wishes to spend less time rather than more time.
PARENTAL RESPONSIBILITY
The parties are in disagreement as to matters relating to B’s school attendance. The issue is limited in that the father is prepared to concede the point providing the mother bears the financial obligation arising from the children’s attendance at a private school.
The financial circumstances of the parties was not canvassed by any evidence other than the father’s preparedness to pay child support and the mother’s refusal to facilitate the payment.
It is a matter for the mother as to whether she considers the children’s interests would be better served by receiving child support that the father would otherwise be obliged to pay.
The father may choose to pay child support directly to B’s current school. That is a matter for him in the absence of any direction by the mother.
In terms of all other aspects of the children’s lives there is no good reason why there should not be equal shared parental responsibility. There are no particular issues as between the children likely to be the catalyst for further conflict. The parties are able to communicate at a civil level and the observation of B at handover is of less acrimony. It is his perception that his parents may well be retreating from the conflict and mutual dislike of each other.
Equal shared parental responsibility is also supported by the family consultant.
If the presumption is not rebutted then the Court is obliged to consider whether there should be equal time or if not, then significant and substantial time.
I do not consider that the parties are able to work cooperatively in an arrangement that would see the children spend equal time with the parties. Moreover, equal time may well be possible for B but would be a number of years away for C.
Whilst the difference in age of the children is significant, for the next few years they will benefit by remaining together for as long as possible. The family consultant referred to the closeness of the relationship of B and C.
I do not overlook the very real issue of family violence. The issue of family violence was considered by the Full Court in Sawant & Karanth [2014] FamCAFC 235 where the Court said:-
[37]In Amador itself this Court referred to the fact that the trial Federal Magistrate had held that she was “… unable to make a finding that the father perpetrated the specific acts of violence alleged by the mother upon her …”. Their Honours considered at some length what was said by the High Court in M v M (1988) 166 CLR 69 (a case involving serious allegations of a different type – child sexual abuse) and, having done so, said:
[87]The above passage from the High Court is sometimes quoted to support an argument that it is unnecessary for a trial judge to make positive findings in relation to allegations, inter partes, of assault and other serious matters of domestic violence. Consequently the Court is urged to to allow and exploration of any such allegation. A close reading of the decision makes it apparent that is not what fell from the High Court.
[88]It is clear from the decision of the Fill Court in A v A (1998) FLC 92-800 that, in appropriate cases, it may be important to make findings of this nature if they are available and necessary to determine what is in the best interests of the child. It is important to note that A v A was note a case where allegations of abuse of children was made. The allegation was that the father had attempted to murder the mother.
As the Full Court said in Amador & Amador [2009] FamCAFC 196 at [79]:-
… Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a Court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission…
In 2013 the Honourable Justice Strickland delivered a paper at the Association of Family and Conciliation Courts 50th Annual Conference entitled “A Judicial Perspective on the Australian Family Violence Reforms 12 Months On”. The paper discussed whether and to what extent the substantive reforms made to the Family Law Act in relation to family violence were achieving their objectives. His Honour considered that family violence reforms should properly be reflective of community standards, have assisted in raising awareness about the nature and effect of family violence, and are arguable contributing to an increase in protective measures such as injunctions and supervision of time spent orders with a parent. The following appears at pages 78 - 79 of the paper:-
It continues to be the case that family violence is an important factor, and needs to be accorded appropriate weight, but it is only one of a myriad of issues that often arise in parenting proceedings. Thus, even in a post-reform environment, family violence is not always determinative of the outcome, whether that be the application of the presumption of equal shared parental responsibility, the allocation of time a child spends with each parent, or the conditions that are or might be imposed on a child spending time with a parent.
However, despite this, these decisions strongly indicate that where allegations of family violence are raised, the seriousness of the allegations, even where they are unable to be tested at an interim stage, will significantly influence the outcome. These include orders about the allocation of parental responsibility (including whether or not to make an order at all), whether an order for equal time or substantial and significant time is appropriate, and whether and by whom any time spent with a parent should be supervised. The case law is also suggestive of judicial officers giving consideration to whether and what type of action parents took to protect their children in response to the allegations of abuse, violence or exposure to violence as a material factor in what orders they should make…
I have already considered that the best interests of these children are served by an order of equal shared parental responsibility. I accept the mother’s presentation as having been significantly affected by the father’s conduct. There is evidence of specific acts of aggression namely, the smashing of a door and the father punching a hole in a wall. Whilst these occurred early in the relationship, there was nonetheless ongoing aggression and violent altercation.
The mother asserts that she was intimidated by the father. I accept her evidence.
B speaks readily of the conflict within the household and clearly he was adversely affected.
The difference in this case is that I also accept the father took active and positive steps to modify his behaviour and to remove or temper his aggressive demeanour.
The family consultant, together with the father’s counsellor, were both impressed that he approached the task of counselling genuinely and his evidence was highly suggestive that he has had a realisation of the full extent to which family violence can impact the lives of those who have come into his contact.
I do not consider that the father presents as a risk either to the mother or in particular to the children. That finding does not necessarily equate to an obligation being placed on the mother that she needs to reassess her negative view of the father. One of the long lasting deleterious consequences of family violence is that the effects experienced by a recipient and the fear engendered are not easily dispelled and may forever impact upon how the mother will view the father.
In this case I find that the mother’s presentation, whilst perhaps now appearing to be unreasonably held, is nonetheless genuine and would be a barrier to an order of equal time.
There is however benefit in the children spending significant and substantial time with the father and I consider that can be achieved by a modest increase in the time that B currently enjoys with his father and an acceleration of the care arrangements for C.
B’S SCHOOL
I have heard little evidence about the alternate arrangements in respect of the school at which B attends and the mother would promote for C.
The father is not strongly opposed to B’s current school. The evidence suggests that he has engaged fulsomely with the school and B’s extra-curricular activities. There is a cost consideration in a child attending a private school.
It is not open to the Court to suggest that one form of education is better than another.
It seems to me that it should be left to the parties to decide how they would wish their children to be educated.
If the mother is prepared to bear the costs of B continuing to attend at a private school then there is no opposition by the father providing he is able to participate as an equal parent in the children’s school life.
The mother has the advantage of financial assistance should she choose to receive child support.
The father cannot be compelled to contribute to B’s school over and above which he might decide in his discretion to undertake.
If it is beyond the financial ability of the mother to enable B and then C to attend a private school education, the parties will have to agree on a school within the State school system taking into account the geography of the parties, noting that each of them currently have rental accommodation which may well be the subject of change.
CHANGE OF NAME
The mother seeks to introduce her surname of “Trevor” as a hyphenation to the children’s current surname of “Lonsdale”.
The father opposes the change.
The Full Court gave consideration to the change of a child’s surname in Chapman & Palmer (1978) FLC 90-510. At 77,674 the Full Court said:-
The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent (or to direct that a name be restored where a change has occurred), unless the Court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child. The same principle applies when the Court is asked to direct that a surname be restored where a change has already occurred. In deciding the issue in each case there is no onus of proof. It is for the Court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.
The Full Court provided further assistance at 77,675 – 77,676:-
…the factors to which the Courts should have regard in determining whether there should be any change in the surname of a child include the following:
(a)The welfare of the child is the paramount consideration,
(b)The short and long term effects of any change in the child’s surname,
(c)Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.
(d)Any confusion of identity which may arise for the child if his or her name is changed or not changed.
(e)The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.
(f)The effect of frequent or random changes of name.
As discussed, the matter of the child’s surname as a parenting consideration and must be considered pursuant to the provisions of Part VII of the Act.
Little evidence has been led other than the mother’s desire (perhaps understandably so) to have her name included in the children’s surname.
At the time of the registration of the children’s names, both parents used and adopted the surname of Lonsdale. It is only as a result of the separation of the parties and the mother’s reversion to her maiden name that the issue of a hyphenated surname has arisen.
There does not appear to be any ambiguity or uncertainty in respect of B. He identifies with his mother and his father. He does not seek that his name be changed. There is no evidence that there are any detrimental factors that have impacted upon the child arising out of the separation of the parties and the mother’s change in surname.
A change in the children’s surname will not be without impact. The effect will be more keenly felt by B than C.
In the absence of evidence that would assist in understanding how the children will benefit from a hyphenated surname as opposed to satisfying the mother’s wish, I find that the children’s best interests would not be served by the change as promoted by the mother.
CONCLUSION
The children have the advantage of developing secure attachments with each of their parents. Equal shared parental responsibility is in their best interests and there is no good reason why the parties would not be able to discharge their statutory obligation to confer in respect of major issues affecting the children.
Equal time is likely to be detrimental to the children. The impact on their lives would be substantial and there is no evidence that would assist in understanding the level of disruption that may be caused where the mother continues to hold a negative view of the father engendered by his admission that whilst together his behaviour was at the very least aggressive.
Orders should be made that would see the children’s time with the father progress gradually to five nights a fortnight and half school holidays, with appropriate orders being made as to special occasions and the necessary sharing of information.
I do not propose to interfere with the children continuing to attend at their current school provided that the financial arrangements are born by the mother and not requiring contribution from the father.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and eighty-seven (287) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 7 March 2018.
Associate:
Date: 7 March 2018
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