Maddock & Wilding
[2021] FCCA 1320
•15 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Maddock & Wilding [2021] FCCA 1320
File number(s): MLC 10113 of 2019 Judgment of: JUDGE MCNAB Date of judgment: 15 June 2021 Catchwords: FAMILY LAW – parenting – long term dispute regarding parenting – coercive control manifested in unwarranted and substantial criticism as a form of family violence – sole parental responsibility. Legislation: Child Support (Assessment) Act 1989 (Cth) s 124
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 64B, 65AA, 65DAA
Number of paragraphs: 83 Date of last submission/s: 29 March 2021 Date of hearing: 29 March 2021 Place: Melbourne The Applicant: Appearing in Person The Respondent: Appearing in Person ORDERS
MLC 10113 of 2019 BETWEEN: MR MADDOCK
Applicant
AND: MS WILDING
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
15 JUNE 2021
THE COURT ORDERS THAT:
1.The Respondent Mother have sole parental responsibility for the children X born in 2006, Y born in 2008 and Z born in 2010 (“the children”).
2.The children live with the Mother.
3.The Applicant Father spend time with the children as follows:
(a)in Week 1, each alternate weekend from 5.00pm on Friday to the commencement of school on Monday;
(b)in Week 2, from 5.00pm to 7.30pm on a day to be agreed between the parties, and failing agreement, on Thursday;
(c)for half of all school holiday periods, including the long summer holiday period, as agreed between the parties, and failing agreement, the first half of the holiday period; and
(d)at all other time as agreed between the parties.
4.The Father’s time with the children be suspended, as follows:
(a)for a period of up to six (6) consecutive weeks each year to allow the children to travel with the Mother, the children’s maternal grandparents and extended maternal family, with the Father’s time with the children during that period to be rescheduled as agreed between the parties and with the Mother to provide at least 28 days written notice to the Father of the suspension of time; and
(b)at all other times as agreed between the parties.
5.The Mother is authorised and permitted to apply for and receive an Australian Passport for the children, X born in 2006, Y born in 2008 and Z born in 2010 without first obtaining the consent of the Father.
6.The Father is permitted to travel interstate and internationally with the children, subject to him providing details of the proposed travel plans to the Mother prior to arranging such travel and obtaining her written agreement to the travel plans, with such agreement to not be unreasonably withheld.
7.The Mother is permitted to travel interstate and internationally with the children without the permission of the Father for a period of up to six (6) consecutive weeks each year and that the Mother is to provide the Father 28 days’ notice in writing as to whether or not she intends to travel and if so, the details of such travel.
8.For the purpose of changeover:
(a)the Father is to pick the children up from the Mother’s residence and is to return the children to the Mother’s residence;
(b)the Father is to drop the children at school on Monday morning for the purpose of order 3(a) herein; and/or
(c)as otherwise agreed between the parties in writing.
9.The parties communicate in writing via email about all matters in respect of the children, except for short mobile phone text messages that may be required to confirm usual pick up times.
10.For the purposes of order 9 herein, the parties are to maintain a valid email address and mobile phone number, and are to provide 48-hours’ notice of any change of email address or phone number.
11.The Father pay 35% of the children’s school and tuition fees by way of non-periodic child support and 50% of extra-curricular fees incurred on the days that the children are in the Father’s care and that such payments not be credited against the periodic child support payments the Father is liable to make pursuant to the Child Support (Registration and Collection) Act 1988 (Cth).
12.The Father forthwith notify the children’s schools that he is liable to pay 35% of the educational and tuitions fees and costs in respect of each of the children and pay those fees when due and payable, and provide a copy of these orders to those schools as authority of the same.
13.The Father pay 50% of the children’s extra-curricular expenses, pursuant to order 10 herein, upon presentation of an invoice or evidence of the cost of the same.
14.The Father ensure that he follows any medical care plan for the children, as provided to him by the Mother and as recommended or directed by a medical professional or practitioner, including, but not limited to, the Royal Childrens Hospital’s encopresis care plan for Z.
15.Both parties, if they have not already, purchase and maintain items required by the children for their medical or educational needs or other professionally determined conditions, as required by the children for use in the parties’ homes, including, but not limited to, eye glasses.
16.The parties, their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party;
(b)discussing these proceedings; and
(c)discussing their own wishes as to parenting arrangements;
to or in the presence or hearing of the said children or any of them and from permitting any other person so to do.
17.A Family Consultant, preferably Family Consultant Ms B, be available to explain these orders to the children and how the decision, as set out in this Judgment, was made.
18.In the event that there is any dispute regarding the operation of these orders, the parties must engage in mediation or some other alternative dispute resolution prior to any application being filed.
AND THE COURT NOTES THAT:
A.In his case summary document filed on 26 March 2021, and in the course of giving evidence at the Final Hearing on 29 March 2021, the Father stated that he would pay 50% of all costs associated with:
(a)the children’s school and tuition fees; and
(b)all fees associated with the children’s extra-curricular activities that fall on the days the children are with him.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Maddock & Wilding is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge McNab:
INTRODUCTION
In this matter the Applicant Father is 43 years old and is currently working on a casual basis as a public servant. The Respondent Mother is 43 years old and works as a professional.
In or around 2004, the parties commenced their relationship and began cohabitation shortly thereafter in Town C, New South Wales. The parties never married.
In 2006, the child X was born. In 2008, the child Y was born. In 2010, the child Z was born.
In or around September 2013, the parties separated. The Father moved out of the matrimonial home in Town D, and moved into a property in Town E.
In 2014, the Father moved to Town F. In 2019, the Mother moved to Suburb G with her current partner and the Father subsequently moved to Suburb H.
The Father and Mother have both re-partnered since separation.
BACKGROUND
This matter has a long history before this Court.
On 11 May 2015, the Mother filed an initiating application seeking final property and parenting orders.
On 20 November 2015, final property and parenting orders were made by Judge McGuire. Relevantly, parenting orders were made for the parties to have equal shared parental responsibility for the children, and for the children to live with the parties on a week about basis.
In the Mother’s affidavit filed on 26 September 2019, the Mother deposes at [6] that on the day the final parenting orders were made, the Father contacted her and said he could not, or would not, look after the children in line with the orders, and requested that he have the care of the children for four nights per fortnight. The Mother then deposes that within six months of the arrangements changing, the Father requested that his time be reduced to two nights per fortnight. During that time, the Mother further says at [6] of her affidavit that:
The Father would repeatedly refuse to pick up the children during his care time, would randomly drop children off at my house even if I was not there during his care time, would with no notice go on holiday and refuse to take the children for school holidays times as arranged and other such behaviours.
On 15 September 2016, the Mother filed an initiating application seeking to reopen the matter in relation to parenting. The Mother sought that she have sole parental responsibility for the children and that the children spend time with the Father every second weekend and for half of all school holidays. The Father ultimately did not participate in those proceedings and the matter proceeded undefended. In a family report dated 22 December 2020 (“the family report”) and prepared by Family Consultant B, it was noted at [9] that “[the Father] advised he was too distraught at that time because of a relationship breakup and was unable to face the stress of the process, and therefore Orders were made in his absence.”
On 8 March 2017, Judge McGuire delivered ex tempore reasons for Judgment (which were settled on 15 October 2019). His Honour made final orders for the Mother to have sole parental responsibility for the children, and for the children to spend time with the Father every second weekend from Friday to Sunday, and for half of school holidays.
On 6 September 2019, the Father filed an initiating application, seeking to reopen the matter for a second time. The Father sought orders for, amongst other things, equal shared parental responsibility of the children and for a week about care arrangement. The Mother filed a response on 26 September 2019, seeking that she have sole parental responsibility for the children, for the children to spend time with the Father every second weekend from Friday to Sunday and for half of all school holidays.
On 20 December 2019, the parties attended a s11F Child Inclusive Conference. A s11F memorandum, produced by Family Consultant J, was provided to the Court on that day. Family Consultant J stated at [31] of the s11F memorandum that:
31. The children appear to want to spend time with their Father and for this time to be increased. It is suggested that a gradual increase in overnight time begin immediately, with the view that within 2 -3 months the children spend half their time with their Father.
On 5 March 2020, interim orders were made by the Court for the children to spend time with the Father as follows:
(1)commencing 12 March 2020 each alternate weekend from 5.00pm on Thursday until before school on Monday;
(2)commencing 14 May 2020 each alternate weekend from Thursday until before school on Tuesday;
(3)for hall of each school holidays, and failing agreement the first half of the holidays; and
(4)at such further and other times as agreed between the parties in writing.
The matter was also adjourned to 20 August 2020 for an Interim Defended Hearing and to 29 January 2021 for Final Hearing.
On 18 August 2020, the Father filed an amended initiating application seeking, amongst other things, sole parental responsibility for the children, a week about living arrangement and for the Mother to pay for all costs associated with the children’s education and extracurricular activities. The Mother filed an amended response on 18 September 2020 seeking that she have sole parental responsibility for the children and for the children to spend time with the Father every second weekend from Thursday to Tuesday and for half of all school holidays. She also sought that the Father contribute 40% of the costs associated with the children’s education as well their medical costs, dental costs and the costs educational and behavioural support programs.
On 20 August 2020, interim orders were made for the family report, as mentioned above, to be produced. The Final Hearing date on 29 January 2021 was vacated, and the matter was adjourned to 29 March 2021 for Final Hearing.
The family report was filed with the Court on 27 January 2021. Family Consultant B, in effect, recommended that the children spend time with the Father:
(1)every second weekend from the conclusion of school on Friday to the commencement of school on Monday;
(2)from after school until 7.30pm on a weeknight; and
(3)for half of all school holidays.
On 15 March 2021, the Mother filed a further amended response seeking, amongst other things, orders that she have sole parental responsibility for the children, with the children to spend time with the Father each alternate weekend from 5.00pm on Friday until the commencement of school on Monday and for half of all school holidays. She also seeks orders that the Father pay for 35% of all fees in relation to the children’s education and tuition as well as 35% of all costs associated with “medical, educational or behavioural diagnostic and assistance programs for the children as recommended by suitably qualified and experienced professionals.”
The matter came before the Court on 29 March 2021 for Final Hearing, with both parties being self-represented. At the conclusion of the hearing judgment was reserved.
ORDERS SOUGHT
The Father’s Proposed Orders
As noted above, by the initiating application filed on 6 September 2019, the Father relevantly sought orders for equal shared parental responsibility of the children and for a week about care arrangement. By an amended initiating application filed on 18 August 2020, the Father sought final parenting orders for him to have sole parental responsibility for the children, and for the children to live with the parties on a week about basis.
However, by a case summary document filed on 26 March 2021, the Father seeks the following orders:
1. The Respondent and the Applicant have shared care for the children X born in 2006, Y born in 2008 and Z born in 2010.
2. The Children X, Y and Z live on a week about basis including half of school holidays with weekly changeovers to occur on Wednesday afternoons after sporting activities. The Respondent will be responsible to deliver the children to the Applicants home after sporting activities have concluded unless otherwise agreed.
3. Both Parties will each contribute to half school fees and tuition costs and both parties will be responsible to approach schools to arrange payment with them.
4. Both Parties will each contribute to half of the fees for extracurricular activities that the Children want to attend that fall on days that the Children are with them.
5. Children’s medical care plans (and other generalist needs, like optometry, dental physio) are supported and ensured by both parents. Medical care plans need to be made by a qualified doctor or specialist. Medicines and equipment (glasses, etc) are provided for at each house by each parent at their own expense.
6. Both parties may take holidays with the Children up to 6 weeks per year, unless agreed upon in writing, and both parties are to inform each other of their intended holiday plan.
The Mother’s Proposed Orders
By the Mother’s response filed on 15 March 2021, the Mother seeks orders that she have sole parental responsibility for the children, and the children spend time with the Father each alternate weekend from 5.00pm on Friday until the commencement of school on Monday and for half of all school holidays. The Mother seeks that, if the Court is minded to make orders for the children to spend time with the Father midweek, as is recommended in the family report, it be on Thursday. The Mother seeks that the Father’s time be suspended for a period of up to six consecutive weeks each year so that the Mother and children can travel to visit the maternal grandparents.
The Mother also seeks, amongst other things, orders that:
(1)the Father pay for 35% of all fees in relation to education as well as 35% of all costs associated with “medical, educational or behavioural diagnostic and assistance programs for the children as recommended by suitably qualified and experienced professionals.”;
(2)the Father purchase and upkeep items required for the children’s medical and educational needs;
(3)the Father be professionally assessed in relation to his capacity to care appropriately for the children; and
(4)the Father obtain and pay for professional assessment and ongoing training for his pet dog until the trainer is satisfied the dog is no longer reactive and aggressive towards the children, no longer food protective and aggressive and no longer displays nipping, scratching, chasing and biting behaviour towards the children. The trainer is to be properly informed, including by the children, about the ongoing behaviour of the dog and the face biting incident that saw one child in hospital.
THE EVIDENCE
The Father’s Evidence
The Father did not file a trial affidavit and stated at the Final Hearing that he did not rely upon an affidavit that was filed on 18 August 2020. That affidavit makes various allegations of inappropriate parenting and neglect by the Mother. For example, the Father says at page 15 of his affidavit that:
I require Sole Parental responsibility based on the fact that Respondents approach to parenting is harming the children’s self-esteem and wellbeing. I believe the respondent exaggerates or deliberately exacerbates symptoms of illness in the children for attention, to manipulate my amount of time with the children, and for her own financial benefit receiving substantial child care support, taxation and financial concessions.
The Father also alleges that the Mother has been entirely uncooperative and hostile during the course of these proceedings and generally, stating at page 19 of his affidavit, for example, that:
Dealing with the respondent has been a distressing and exhausting experience for me over the past 6 years. Never has there been an attempt to deal with matters harmoniously or fairly, instead I have been met with;
a)Court summons
b)Accusation
c)Undermining my personal relationships
d)Interference with my parenting during my time with the children
e)Lack of compassion
f)Demanding and verbose email communication
g)A generally narcissistic approach to any topic around the children or financial matters
During the course of the Final Hearing, the Father sought to withdraw large sections of his affidavit, in particular the allegations of the Mother’s neglect and that she exaggerates the medical condition suffered by the children, citing a desire for there to be a more harmonious and cooperative approach to parenting between the parties.
Whilst it appears commendable that the Father withdrew these allegations, I note that the allegations were only withdrawn shortly prior to the hearing or during the course of the hearing itself when the Father was giving evidence. The Mother was still required to prepare for the hearing on the basis that the allegations were made, and she had to suffer the stress and upset of dealing with those kinds of allegations prior to these proceedings and through the course of it.
That the Father has made a series of unfounded and serious allegations against the Mother over a period of time, both before and during these proceedings, is evidence that he has engaged in a species of coercive control such as to constitute family violence. He has used these proceedings as a form of coercive control. This was a feature of the Father’s conduct which was noted by the Family Consultant in the family report.
By an email from the Mother dated 15 August 2020, the Mother raised with the Father him contributing 40% of the costs of the education and medical expenses of the children. The Mother made this request on the basis that the Father has “around 40% care and pay[s] $125 per month or approx. $1500 per year.” There is no evidence of a direct response to that correspondence, save that in his affidavit of 18 August 2020, the Father says that the Mother should pay for all of the children’s education, tuition and extra-curricular activities: see page 18 of the Father’s affidavit filed on 18 August 2020.
However, by the Father’s case summary document filed on 26 March 2021, the Father provides evidence of a letter sent to him by the Mother on 1 March 2021, which included a without prejudice offer. I have not included the details of that correspondence as it is clearly marked “without prejudice” and contains the Mother’s proposal to resolve these proceedings.
By a letter sent to the Mother in response on 23 March 2021, the Father states that:
I would like to revisit this parenting agreement/settlement you offered and I would like to move forward into the future and try to build trust which we have both struggled with due to our own experiences. I feel it is important to move on from our past interactions and try to form something more positive that supports the children. I feel that the past year has been a very successful one in relation to the increase in care of the children for me and obviously I would like it to increase to week about.
The Father went on to make comments in relation to each of the Mother’s proposals, which can be summarised as follows:
(1)in relation to the Mother’s proposal for spend time arrangements, the Father requested a week about arrangement, with the days to be determined between the parties;
(2)in relation to the children’s extra-curricular activities, the Father agreed that he would pay for half of the fees for such activities that occur on days which the children are with him;
(3)in relation to the children’s school fees, the Father agreed to pay half of all school fees and tuition costs;
(4)in relation to the children’s medical needs, the Father indicated that he would support the children’s needs and ensure that he will have the necessary medicine and equipment required; and
(5)the Father agreed to the 6-week travel arrangement and agrees that he would like to have such an arrangement for himself, as proposed.
Whilst the Father’s proposal was also marked “without prejudice”, he chose to set out the terms of his letter in his outline of case and repeated the terms of his proposal in open Court.
The Mother’s Evidence
The Mother relied on her affidavit filed on 15 March 2021. That affidavit noted that she was responding to allegations that were made by the Father in his affidavit filed on 18 August 2020, including an application that the Father was seeking sole parental responsibility for the children by reason of the Mother’s conduct.
The Mother cogently and comprehensively sets out in her evidence the challenges that she has faced in caring for and raising the children without any proper financial support from the Father and where her perfectly reasonable and sensible approaches to the children’s medical and educational needs have been subjected to sustained and unwarranted criticism by the Father.
The affidavit evidence discloses her active involvement in dealing with the challenges faced by the children as a result of the fractious relationship between the parties, noting that I find that most of the difficulties arose as a result of the Father’s unreasonably negative attitude towards the Mother’s parenting.
Children’s Needs
In her affidavit filed on 15 March 2021, the Mother makes reference to a number of needs of the children.
In relation to X, the Mother states at [8] – [9] of her affidavit that X has a history of anxiety. The Mother states that in 2020 X’s anxiety manifested in episodes which included “physically trembling, panicking, ‘manically’ talking and believing he has a condition that might kill him, or will ‘change’ his life.” The Mother notes that despite the episodes, X can confidently come to her with his concerns and that they discuss those issues. The Mother also states that X is amenable to the possibility of attending professional counselling and/or having additional alternate support to assist him with understanding and managing his anxiety. The Family Consultant makes brief reference to the aforementioned anxiety suffered by X at [53] of the family report.
In relation to Y, the Mother states at [10] – [14] of her affidavit that Y requires glasses and is required to undertake eye exercises to assist with an issue to do with one of her eyes disengaging from reading. The Family Consultant makes brief reference to Y’s need for glasses at [65] of the family report. Further, the Mother states that Y is two years behind in general literacy and numeracy skills, when compared to standardised metrics. Y undertakes one-on-one tutoring twice a week to assist her with her learning. Y has a temporary Individual Learning Plan issued by her school. The Mother also deposes to Y may have dyslexia, for which she received formal testing on 17 March 2021. As at the time of the Final Hearing, no further information was provided to the Court in relation to a formal diagnosis.
In relation to Z, the Mother states at [17] – [21] that Z lives with a diagnosed medical condition called Encopresis, which manifests itself by the involuntarily soiling of pants. The Family Consultant made brief reference to the condition at [66] of the family report. The Mother deposes that the condition can be managed with sustained lifestyle changes, but which have to be maintained for a significant period of time, sometimes after the condition appears to have been resolved. Z currently attends a specialist clinic at the Royal Childrens’ Hospital to assist him with the condition, and undertakes treatment twice a day. Z requires glasses full time, and is also in the process of undertaking testing for further behavioural, learning and developmental challenges.
Family Consultant B’s Evidence
The Father called Family Consultant B to give evidence in relation to the family report and the recommendations in that report. The family consultant interviewed each of the parents and the children.
At paragraph [75] – [77] of the family report, the Family Consultant noted when evaluating the matter:
75. The parties separated 8 years ago and obtained Final Orders in 2017. The children have lived primarily with their mother. There has been a recent change in 2020 such that the children live with their mother nine nights per fortnight and with their father five nights per fortnight.
76. In my opinion the change has occurred because Mr Maddock prioritised his needs over the benefits to the children which he was unable to articulate in a child focussed manner. The information from the interviews with the parties and the children, and the affidavits taken together support that Mr Maddock has pressured the children and manipulated them to verbally align with him against their mother after she has provided for them reliably for the last 8 years since separation. It appeared the children had been prepared by Mr Maddock over a lengthy period of 2 years.
77. Mr Maddock impressed as disorganised to the extent that he had confirmed his availability for the Family report interview and then made himself unavailable at the appointed time. If he simply forgot, this raises concerns about his capacity to attend professional or medical appointments with the children and more generally their other commitments. In 2017 Judge McGuire had noted a certain problem with authority from Mr Maddock which may provide an alternative explanation.
At [78] of the family report, the Family Consultant noted that the children have internalised a warm and loving relationship with the Father and that they are spending sufficient time with him to maintain that relationship. On that basis, the Family Consultant stated that spending more time with the Father would not benefit the children’s relationship with him.
At [93] – [99] of the family report, the Family Consultant recommended as follows:
93. The children live with their mother.
94. The children spend time with their father each alternate weekend from after school Friday until return to school Monday.
95. In the alternate week the children spend time for dinner with their father from after school until 7.30pm on one weeknight, for example a Wednesday.
96. That changeovers on alternate Fridays occur at the mother’s home unless otherwise agreed.
97. The children spend half the school term and long summer holidays as they do currently.
98. The children spend special days with the parties as they have to date.
99. That the parties be restrained from discussing their own wishes for parenting arrangements with the children.
CONSIDERATION
In making a parenting order, pursuant to s64B of the Family Law Act 1975 (Cth) (“the Act”), the Court must regard the child’s best interests as the paramount consideration: see s60CA and s65AA of the Act. Accordingly, I must consider the factors set out in s60CC of the Act to determine what is in the child’s best interests.
This analysis will enable me to determine whether the presumption of equal shared parental responsibility is maintained consistent with s61DA of the Act.
Equal Shared Parental Responsibility
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
However, s61DA(2) of the Act provides that 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 by evidence that satisfies the Court that it would not be in the best interests of the child or the child's parents to have equal shared parental responsibility for the child.
This is a case where the presumption of equal shared parental responsibility is displaced. The Father has demonstrated a manifest incapacity to cooperate with the Mother in relation to the children’s health and education. The Father’s failure to parent cooperatively over a long period of time means that it is not in the best interests of these children for there to be equal shared parental responsibility. I do not regard the Father’s very late offer to parent collaboratively or to support the Mother’s decisions as a sensible basis for finding that he will parent collaboratively or cooperatively with the Mother in the future.
Statutory Considerations
By operation of s60CA of the Act, the Court is required to have regard to the best interests of the children as the paramount consideration when making parenting orders. To determine what is in the best interests of the children in this matter, the Court is guided by the primary and secondary considerations set out in s60CC of the Act.
Primary Considerations
In terms of the primary considerations under s60CC(2) of the Act, I have regard to the following:
s60CC(2)(a) – the benefit to the child of having a meaningful relationship with both the child’s parents;
The children have a meaningful relationship with both parties, and the orders I have made do not undermine that relationship. I accept the evidence of the Family Consultant that the children have a stable and settled relationship with each of the parties and a reduction in the hours that the children spend the Father will not detract from that relationship. I also accept the Family Consultant’s evidence that more time with the Father would not benefit the children, as the children already have an affectionate and loving relationship with the Father.
s60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These orders address the concerns that the Mother has in relation to the Father’s conduct towards her and, by that conduct, towards the children. The Father has involved the children in these proceedings by discussing the effect of Court orders with them and, in effect, blaming the Mother for what he perceives as unfair results arising from Court orders (including orders made by consent in respect of previous property proceedings). The Family Consultant succinctly summarised her concerns in relation to the conduct of the Father at [80] of the family report, where she stated:
80. Mr Maddock also demonstrated behaviours at interview which were described by Ms Wilding and in my opinion are gaslighting. This is a process of undermining a person by making them second guess their experience and sometimes their sanity. It is carried out by speaking as if with authority even on matters about which one has no professional expertise or authority. Mr Maddock’s analysis of Ms Wilding is one such example. It appeared that Mr Maddock includes the children in his attempts to gaslight their mother by encouraging them to carry his messages of what he wants for them, to the extent of manipulating them to believe that they want what he wants. Mr Maddock’s broken record, or wearing down behaviour, is consistent with a pattern of coercive control and commonly part of a repertoire of various levels of violence, albeit there has not been any escalation of violence to physical and it has remained as passive aggressive, verbal, and emotional.
Having considered the evidence in this case and having observed the Father over a series of interim hearings (and indeed the Final Hearing), I agree with the conclusion reached by the Family Consultant in relation to his conduct towards the Mother and the children.
Secondary Considerations
In terms of dealing with the matters that I must have regard to under s60CC(3), to the extent that I have not already done so, I have regard to the following relevant considerations:
s60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
The children express views that they enjoy spending time with both parties. The difficulty in determining what those views are, and how much time should be spent with each party as a result of those views, is significantly affected by the fact that the Father has actively sought to influence the children’s views about how much time they should spend with him.
s60CC(3)(b) – the nature of the relationship of the child with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the child);
Each of the children have secure relationships with each of the parties and their grandparents and the orders of the Court will not affect those relationships.
s60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
I have discussed the Father’s attitude to the children’s education and health in the course of discussing the question of parental responsibility, as set out above. Each party has participated in spending time communicating with the children. In particular, it is concerning that the Mother has produced evidence that Y has had difficulty with reading and it has been assessed by her teachers that she needs extra assistance in relation to that difficulty. Those needs have not been acknowledged or addressed by the Father.
s60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The Father’s approach to assisting in the maintenance of the children in relation to their education costs and general living expenses has been unacceptable by any reasonable standard.
By way of annexure 12 to the Mother’s affidavit filed on 12 March 2021, there is evidence that the Father was paying child support as follows:
(1)$326 per month from 1 July 2019 to 31 October 2019;
(2)No evidence as to the rate of child support from 1 November 2019 to 7 April 2020;
(3)$210.25 per month from 8 April 2020 to 13 May 2020; and
(4)$124.25 per month from 14 May 2020 to 31 January 2021.
At the time of Final Hearing, there is no evidence before the Court as to the current rate of child support payable by the Father.
In his case summary document filed on 26 March 2021, and in the course of giving evidence at the Final Hearing on 29 March 2021, the Father stated that he would pay 50% of all costs associated with the children’s school and tuition fees and half of all fees associated with the children’s extra-curricular activities that fall on the days that the children are with each party.
I have made orders that the Father contribute 35% to the children’s education and tuition expenses and 50% of the extra-curricular expenses when the children are in his care for the reasons set out below.
s60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I accept the evidence of the Family Consultant that the children will not be negatively affected by the changes in living arrangements.
s 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There are no particular practical difficulties arising from the operation of these orders in relation to the children spending time with each of the parties in accordance with the terms of these orders.
s 60CC(3)(f) – the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
There is no medical evidence before the Court that either of the parents have any incapacity to provide for the emotional in an intellectual needs of the children. However, for the reasons set out above, the Father’s self-interested and self-focused approach to the way that he has dealt with the Mother, and indeed with the children, brings into question his capacity to care for all of the children’s needs. This is one of the reasons that the Court has ordered that the Mother have sole parental responsibility for the children.
It is also a reason for not ordering that the children spend equal time with each of the parties. Each of the children have particular needs which the Father has not adequately acknowledged (the evidence of this being the views expressed in his affidavit filed on 18 August 2020 and his failure to make adequate provision for the children by contributing to the costs of their education and health). The lack of cooperation between the parties also renders such an arrangement impracticable: see s65DAA of the Act.
s 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
There are no features of this case arising from the maturity, sex, lifestyle or background of either of the parties which are relevant.
s 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in this matter.
s 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
By his failure to support the Mother in her parenting decisions and his failure to contribute to the cost of the children’s education and extra-curricular activities, the Father has failed to undertake his responsibilities as a parent. It is hoped that be his agreement to pay for 50% of those expenses, and his disavowal of his previously negative behaviour, he will now take on all his responsibilities towards the children.
s 60CC(3)(j) – any family violence involving the child or a member of the child's family;
There are no allegations of family violence in this matter. I note that there were allegations of coercive and controlling behaviour from the Father to the Mother, and that the Father made allegations of controlling behaviour by the Mother to the children.
For the reasons set out above I do find that the Father has engaged in coercive behaviour of such a level as to give rise to a finding that he has committed family violence against the Mother, notwithstanding that there has been no physical violence. The long-standing and completely unwarranted attacks on the Mother’s care of the children, and the use of the children by the Father to undermine the Mother, has been such as to constitute family violence.
s 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
This is not a relevant consideration in this matter.
s60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The orders I have made, in particular the order giving sole parental responsibility to the Mother, is likely to lead to greater stability for the children and make it less likely that further proceedings will be issued.
s 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.
The Mother sought orders to be made in relation to the Father’s dog as it is alleged that the dog had injured one of the children, causing the child to go hospital. I will not make orders in relation to this, but I assume that the Father will, of his own volition, ensure that the dog is properly trained to behave safely with children.
In relation to the orders that the Mother be permitted to travel overseas with the children for a six week period, in my view, if the Mother has the capacity to do this, and it does not interfere with the children’s schooling, then the opportunity for the children to do this with their Mother and other family members is in their best interests.
I will also not make orders for the Father to be psychiatrically assessed to determine his capacity to appropriately parent the children. Given that the Mother has proposed that the Father have significant and unsupervised time with the children, I do not see the benefit of the Father undertaking a psychiatric assessment.
The Court has made orders that the Father’s pay 35% of the children’s school and tuition fees and 50% of the fees associated with the cost of extra-curricular activities events that fall on the days the children are with him. The Father proposed that he pay 50% of the children’s educational and tuition costs. I have determined that, having regard to his income, that it is just and equitable that he pay 35% of the education expenses as proposed by the Mother. The administrative child support assessment paid by the Father is modest. Given the Father has offered to make contributions of 50% of those education and extra-curricular expenses, I assume that he has the means or capacity to make good his promise or proposal.
In making that order, I have regard to the matters in s124(2) of the Child Support (Assessment) Act 1989 (Cth), noting that the Father had an assessment to pay child support of $124.25 per month from 14 May 2020 to 31 January 2021. There is no evidence before the Court of any of the matters under s124(2)(aa), s124(2)(b) or s 124(2)(c). The basis for the Court making the order is that the Father agreed, both in his written material and during the course of the hearing, to make non-periodic payments.
CONCLUSION
For these reasons I will make orders, subject to modification, in line with the orders sought by the Mother and recommended by Family Consultant B.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 15 June 2021
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Injunction
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Procedural Fairness
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Judicial Review
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