Maddocks and Clifton
[2009] FMCAfam 1377
•23 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MADDOCKS & CLIFTON | [2009] FMCAfam 1377 |
| FAMILY LAW – Parenting orders – parental responsibility – graduated increase in time between child and father – detailed orders where the parents are highly conflicted. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 62G(2), 65DAA |
| Applicant: | MR MADDOCKS |
| Respondent: | MS CLIFTON |
| File Number: | MLC 6235 of 2008 |
| Judgment of: | Bender FM |
| Hearing dates: | 22 & 23 July & 26 November 2009 |
| Date of Last Submission: | 26 November 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 23 December 2009 |
REPRESENTATION
| Solicitors for the Applicant: | J. A. Middlemis |
| Counsel for the Respondent: | Ms Cranenburgh |
| Solicitors for the Respondent: | Legal Help Lawyers |
ORDERS
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for their daughter [X] born [in] 2007 (“[X]”).
The long term care, welfare and development of [X] includes:
(a)education including primary, secondary and tertiary;
(b)health care, medical and dental issues;
(c)religious observance;
(d)sporting, cultural and social activities; and
(e)travel, including the obtaining of a passport.
In respect of each issue concerning the long term care, welfare and development of [X] the mother and the father shall:
(a)consult with the other person in relation to the decision to be made;
(b)make a genuine effort to come to a joint decision about that issue; and
(c)in the event they are unable to come to a joint decision about that issue, the parties shall attend Family Dispute Resolution/Mediation or a Relationships Centre with a Family Dispute Resolution Practitioner listed on the Attorney General’s Family Pathway website, with the costs of any such mediation to be paid for equally by the mother and father.
[X] live with her father as follows:
(a)until [[X]’s birthday] 2010:
(i)each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday commencing 1 January 2010; and
(ii)
from 5.00 pm Monday to 5.00 pm Tuesday, commencing
11 January 2010 and each alternate week thereafter;
(b)from [[X]’S birthday] 2010 to [[X]’S birthday] 2011:
(i)each alternate weekend from 5.00 pm Friday to 9.00 am Monday; and
(ii)in the alternate week from 5.00 pm Monday to 5.00 pm Tuesday and each alternate week thereafter;
(iii)for four separate blocks of three nights on dates agreed between the parties and failing agreement for three nights in each of the term school holidays to commence at 9.00 am on the Monday of the term school holidays that immediately follows the weekend [X] has not been with her father, and for one period in the 2010/2011 long summer vacation commencing 9.00 am on 12 January 2011; and
(iv)as otherwise agreed between the parties;
(c)from [[X]’s birthday] 2011 to [[X]’s birthday] 2012:
(i)each alternate weekend from 5.00 pm (or after kindergarten) Friday to 9.00 am (or before kindergarten) Monday;
(ii)in the alternate week from 5.00 pm (or after kindergarten) Monday to 9.00 am (or before kindergarten) Wednesday and each alternate week thereafter;
(iii)for four separate blocks of four nights on dates agreed between the parties and failing agreement for four nights in each of the term holidays to commence at 9.00 am on the Monday of the term holidays that immediately follows the weekend [X] has not spent time with her father, and for one period in the 2011/2012 long summer vacation commencing 9.00 am on 12 January 2012; and
(iv)as otherwise agreed between the parties;
(d)from [[X]’s birthday] to [[X]’s birthday] 2013:
(i)each alternate weekend from 5.00 pm (or after kindergarten) Friday to 9.00 am (or before kindergarten) Monday;
(ii)in the alternate week from 5.00 pm (or after kindergarten) Monday to 9.00 am (or before kindergarten) Wednesday and each alternate week thereafter;
(iii)for four separate blocks of five nights on dates agreed between the parties and failing agreement for five nights in each of the term holidays to commence at 9.00 am on the Monday of the term holidays that immediately follows the weekend [X] has not spent time with her father, and for one period in the 2012/2013 long summer vacation commencing 9.00 am on 12 January 2013; and
(iv)as otherwise agreed between the parties;
(e)from [[X]’s birthday] 2013:
(i)each alternate weekend from after school Thursday to before school Monday;
(ii)in the alternate week from after school Monday to before school Wednesday;
(iii)for one week in each of the term school holidays by agreement and failing agreement the first week from after school Friday to midday on the middle Saturday;
(iv)for two weeks in the long summer vacation by agreement and failing agreement commencing at 12.00 noon the first Saturday of January each year; and
(v)as otherwise agreed between the parties.
[X]’s time with her father pursuant to orders 5(e)(i) and (ii) herein shall be suspended during the school holidays and recommence on the basis [X] will live with her father pursuant to order 5(e)(i) herein on the first weekend after the holidays.
[X] will otherwise live with the mother.
Notwithstanding any other orders herein, [X] shall spend time with each of her parents as follows:
(a)if [X] is not living with her father on her birthday or the father’s birthday, she shall spend time with the father for three and a half hours if the birthday falls on a weekday at times agreed between the parties and failing agreement between 3.30 pm and 7.00 pm and for five hours if the birthday falls on a weekend day at times agreed between the parties and failing agreement from 10.00 am to 3.00 pm;
(b)if [X] is not living with her mother on her birthday, the mother’s birthday or [Y]’s birthday, she shall spend time with the mother for three and a half hours if the birthday falls on a weekday at times agreed between the parties and failing agreement between 3.30 pm and 7.00 pm and for five hours if the birthday falls on a weekend day at times agreed between the parties and failing agreement from 10.00 am to 3.00 pm;
(c)if [X] is not living with the father, with the father from 10.00 am to 5.00 pm Father’s Day;
(d)
if [X] is not living with the mother, with the mother from
10.00 am to 5.00 pm Mother’s Day;
(e)with the father from 5.00 pm Christmas Eve to 5.00 pm Christmas Day 2009 and each alternate year thereafter;
(f)with the mother from 5.00 pm Christmas Day to 5.00 pm Boxing Day 2009 and each alternate year thereafter
(g)with the mother from 5.00 pm Christmas Eve to 5.00 pm Christmas Day 2010 and each alternate year thereafter; and
(h)with the father from 5.00 pm Christmas Day to 5.00 pm Boxing Day 2010 and each alternate year thereafter.
All changeovers for [X] occur at child care, kindergarten or school, whichever is appropriate, and if [X] is not attending any of the above, the father shall collect and return [X] to the mother’s residence.
The mother and father are to notify the other of any medical or other emergency affecting [X] as soon as practicable thereafter and are to authorise all medical and health practitioners treating [X] to discuss her health and health needs with the other parent.
Both parents are at liberty to attend parent-teacher interviews and school events to which parents are normally invited and to receive school reports and other information and school photograph order forms normally provided to parents at the expense of the recipient parent.
The mother and father are to keep each other advised of their current residential addresses and current landline and mobile telephone numbers and are to advise each other in writing of any change of address or telephone number within seven days of any such change.
The mother and father shall utilise a communication book to exchange information in relation to [X] and shall otherwise exchange SMS text messages and/or email messages, and shall ensure all such communications do not abuse, insult, rebuke or denigrate the other parent.
The mother and father, their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating each other or any member of each other’s households or families in the presence or hearing of [X], and from permitting any other person so to do.
All dogs present at the father’s residence shall be securely enclosed in pens whilst [X] is living with the father.
The father and mother are restrained from entering any home occupied by the other.
IT IS NOTED that publication of this judgment under the pseudonym Maddocks & Clifton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BENDIGO |
MLC 6235 of 2008
| MR MADDOCKS |
Applicant
And
| MS CLIFTON |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves the parties’ competing applications for orders relating to the arrangements for their daughter [X] born [in] 2007 (“[X]”) in circumstances where they have a highly conflictual relationship and have limited ability to communicate with each other about their daughter and what arrangements are in her best interests.
The father is seeking orders that until [X] is four years of age, she live with him on a fortnightly basis in week one from 5.00 pm Friday to 9.00 am Monday and in week two from 5.00 pm Thursday to 5.00 pm Saturday. Upon [X] turning four years of age, the father seeks that she live with him from 5.00 pm Thursday to 9.00 am Monday in week one and from 5.00 pm Thursday to 5.00 pm Saturday in week two, and in addition for four lots of four day blocks in 2009, four lots of six day blocks in 2010, four lots of seven day blocks from 2012 onwards, as well as specified times on special occasions. He proposes that [X] otherwise live with the mother.
The mother is seeking orders that she have sole parental responsibility for [X], that [X] live with her and spend time with her father from age three to three and a half during each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday. Upon [X] turning three and a half until the commencement of school, the mother proposes [X] spend time with the father each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday and upon [X] starting school, the mother proposes the father’s time again increase to each alternate weekend from Friday to before school Monday. The mother also proposes that until [X] commences school, the father be at liberty to spend any week day with [X] between 9.00 am and 5.00 pm upon him giving the mother 12 hours notice of his intention to do so. Once [X] starts school, the mother proposes she spend from after school to 6.00 pm each Wednesday with her father.
In relation to holiday time, the mother seeks that such holiday time not commence until 2012 when [X] commences school. She seeks orders that in the 2012 term holidays, [X]’s weekend time with the father be extended to conclude at 5.00 pm Wednesday and from 2013, [X] spend half of all term holidays with the father. For the long summer vacation, the mother proposes [X] spend two separate weeks in 2012/2013 with her father and two weeks commencing the first Saturday in January 2014 and each alternate year thereafter.
The mother also seeks arrangements for the special days such as Father’s Day, Mother’s Day, birthdays, Christmas and Easter. The parties are not in agreement as to what those arrangements should be.
Background
The father was born [in] 1967 and is 42 years of age. He is a [occupation omitted] running his own business. He lives in his own property. Whilst he has a girlfriend, the father lives alone.
The mother was born [in] 1972 and is 37 years of age. She is a [occupation omitted] who runs her own business. Whilst she has
re-partnered, the mother and her new partner do not live together.
The mother has an older child from a previous relationship, [Y], who is 13 years of age.
The parties commenced a relationship in March 2006 and Ms Clifton became pregnant shortly thereafter. The mother and [Y] moved into the father’s home. On New Year’s Day 2007, the parties argued and they separated with the mother and [Y] leaving the father’s home.
The mother was and remains deeply distressed and bitter about the separation and the circumstances surrounding it, feeling betrayed and abandoned by the father.
The mother returned to live and work at the property from which she conducted her [omitted] business.
[X] was born by caesarean section [in] 2007. The father attended the birth. The mother left hospital two days later. After [X]’s birth, the mother reported being:
“exhausted, desperate and low and sleep deprived”
and
“begging the father to provide her assistance and respite.”
In desperation, she left [X] with the father overnight some nine days after her release from hospital. It was the mother’s evidence that the father otherwise refused to assist her with [X]’s care.
At the time the mother left [X] with the father, the Department of Human Services became involved. This arose from concerns the mother was not coping with the care of [X]. Their involvement with this family ceased in July 2007.
Thereafter there was DNA testing and ongoing exchanges between the parties’ respective solicitors as to the arrangements for [X]. The mother initially proposed ‘week about’ care and then significantly reduced her proposal to supervised time. In reality, [X] spent limited time with the father in 2007.
The father made an application to the Bendigo Magistrates Court for parenting orders and, by consent, interim orders were made on
4 June 2008 that provided for the parties to have equal shared parental responsibility, for [X] to live with the mother and spend time with the father each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday, each alternate Thursday from 5.00 pm to 5.00 pm Friday, each alternate Monday from 5.00 pm to 5.00 pm Tuesday, half of [X]’s birthday, from 10.00 am to 4.00 pm on the father’s birthday and on Father’s Day, from 2.00 pm Christmas Day to 5.00 pm Boxing Day in 2008 and each alternate year thereafter and from 5.00 pm Christmas Eve to 2.00 pm Christmas Day 2009 and each alternate year thereafter.
[X] spent time with the father in accordance with the consent orders until May 2009. The mother filed an Application in a Case seeking to vary the consent orders as to the arrangements for [X] by removing the mid-week overnight time she spent with the father on the basis this was impacting negatively on [X]. I heard that application and made interim orders on 5 May 2009 that cut out the alternate Thursday night time and substituted day time care at any time nominated by the father. Otherwise the previous orders remained in full force and effect.
[X] was in Family Day Care with Ms D from November 2007 to July 2009. Ms D filed affidavits in the matter which deposed to [X] being very unsettled and suffering from diarrhoea after spending time with her father, especially mid-week.
The final hearing of this matter came before me in the Bendigo sittings of the Federal Magistrates Court on 22 and 23 July 2009. Because of time constraints, orders were made at the conclusion of the trial for closing written submissions to be filed by each of the parties’ legal representatives.
Before those submissions were received, [X] became most unwell and was admitted to the Royal Children’s Hospital for investigation as to whether she had cancer.
Upon [X]’s admission to the Royal Children’s Hospital, the mother issued an urgent Application in a Case seeking orders that she have sole parental responsibility for [X] and that the father’s time with [X] be suspended. In support of that application, she deposed that the break down of communication between herself and the father meant they could not make joint decisions in relation to [X]’s welfare and that [X] was too unwell to spend time with the father at his home.
I heard the mother’s Application in a Case on 31 August 2009 and ordered that the orders of 5 May 2009 remain in full force and effect, save that the father’s time with [X] be subject to the advice of her treating medical practitioners, especially as to whether [X] was well enough to spend time at her father’s home. The orders also provided for the father to be able to visit [X] in hospital and, if [X] was not well enough to spend time with the father in his home, he be permitted to visit her at the mother’s home. The order for equal shared parental responsibility was left in place.
The matter was re-listed for further final hearing before me in the Bendigo sittings of the Federal Magistrates Court in the week commencing 23 November 2009. When the matter came before me in Bendigo it was the parties’ evidence that most happily [X] did not have cancer, but was continuing to require fortnightly treatment at the Royal Children’s Hospital.
The parties also gave evidence that Ms D was no longer providing Family Day Care Services and that [X] was currently being looked after by the mother, the father and the mother’s partner. It would appear the parties have been unable to agree as to [X]’s ongoing care arrangements in circumstances where both parties are working.
Both parties sought that the matter be determined on a final basis and relied on the closing written submissions previously filed as to the arrangements they were seeking be put in place for [X]’s ongoing care.
Evidence
The father’s proposal
The father’s proposals are set out in detail in the outline of case document that was filed in the court on 21 July 2009. His detailed proposals are set out below:
1.That all extant Family Law Orders be discharged.
2.That the mother and the father retain equal shared parental responsibility for the long term care, welfare and development of the child [X] [born in] 2007 (“the child”).
3.That the long term care, welfare and development of the child includes:
(a) education including primary, secondary and tertiary;
(b) health care, medical and dental issues;
(c) religious observance;
(d) sporting, cultural and social activities; and
(e) travel, including the obtaining of a passport.
4.That in respect of each issue concerning the long term care, welfare and development of the child the mother and the father shall:
(a)consult with the other person in relation to the decision to be made; and
(b)make a genuine effort to come to a joint decision about that issue.
5.(A) Until the child attains the age of 4 years the child live with the father:
(i)In alternate weeks from 5pm Friday until 9am Monday (or the commencement of school when appropriate) (extending to 9am Tuesday on long weekends), and
(ii)In the other alternate week from 5pm Thursday until 5pm Saturday, and
(iii) On four occasions during the year:
(a) In four day and night blocks until 31 December 2009, and
(b) In six day and night blocks until 31 December 2010, and
(c) In seven day and night blocks until 31 December 2011, and thereafter and that
The father shall provide the mother with four weeks written notice of his intention to exercise the abovementioned block time when the child is with him and the mother will not unreasonably withhold her consent with respect to such times but in the event that the mother does withhold her consent to the father’s suggested nominated times then within 7 days of such refusal the father shall renominate his chosen times which the mother shall not refuse.
(B) Upon the child attaining the age of 4 years:
(i)In alternate weeks from 5pm Thursday until 9am Monday (or the commencement of school when appropriate) (extending to 9am Tuesday on long weekends), and
(ii)In the other alternate week from 5pm Thursday until 5pm Saturday, and
(iii)For one half of all school term holidays as agreed and failing agreement:
(a) In even numbered years for the first half, and
(b) In odd numbered years for the second half.
6.That the child otherwise live with the mother.
7.That notwithstanding anything stated elsewhere herein, the father and the mother shall each spend time with the child on each of the following days:
(a) for half of the child’s birthday or if the child’s birthday.
(b) with the father from 10:00am to 4:00pm on his birthday.
(c) with the mother from 10:00am to 4:00pm on her birthday.
(d) If the father would not otherwise spend time with the child on Father’s Day, with the father from 10:00am to 4:00pm on Father’s Day or otherwise as agreed.
(e) If the mother would not otherwise spend time with the child on Mother’s Day, with the mother from 10:00am to 4:00pm on Mother’s Day or otherwise as agreed.
(f) for half of Christmas day at times to be agreed or in the absence of agreement:
(i) in 2009 and each odd year thereafter:
(A)with the father from 5:00pm Christmas Eve until 2:00pm Christmas Day.
(B)with the mother from 2:00pm Christmas Day until 5:00pm Boxing day.
(ii) in 2010 and each even year thereafter:
(A)with the mother from 5:00pm Christmas Eve until 2:00pm Christmas Day.
(B)with the father from 2:00pm Christmas Day until 5:00pm Boxing day.
8.That all changeovers of the child occur:
(i)from the child carer, kindergarten or school whichever is appropriate or as otherwise agreed.
9.That each of the father and the mother be restrained by injunction from entering any home occupied by the other.
10.That the mother have sole parental responsibility for making decisions about the child’s day to day welfare, care and development when the child is in her care.
11.That the father have sole parental responsibility for making decisions about the child’s day to day welfare, care and development when the child is in his care.
12.That each party shall forthwith notify the other of any medical or other emergency affecting the child.
13.That the mother pay the father’s costs of and incidental to these proceedings.
14.Such further as deemed just by this Honourable Court.
15.Pursuant to s.65DA(2), 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 the attached Fact Sheet and these particulars are included in these orders.
The father’s evidence
It was the father’s evidence that at all times since [X]’s birth, he has been attempting to be as involved in her life as he can, and that he would ultimately seek that a shared care arrangement be put in place.
It was the father’s evidence that the parties did separate after an argument on New Year’s Day in 2007, but that he had had doubts as to there being a future in his relationship with the mother prior to their separation.
The father agreed that the mother initially offered a shared care arrangement in relation to [X], but that he had been of the opinion that that would not be in the best interests of a newborn baby and accordingly had put alternate proposals to her.
The father conceded that he cannot communicate with the mother. It was his evidence that the mother tells him what is to occur and is not prepared to hear any alternative options other than those that are being put by her. He indicated that he finds it easier to avoid communicating with the mother in order to minimise conflict and confrontation.
It was apparent from the father’s evidence, and the manner in which he gave it, that he is a fairly straight-forward character. He is not intellectually minded and, on his own evidence, is not particularly comfortable with the use of technology. By way of example, when discussions were had with him in relation to any ways he felt that communications could be improved between himself and the mother, he conceded that he did not use email and that he had difficulty using SMS and other forms of modern technology.
The father was cross-examined at some length in relation to his care of [X] when she was with him. It was his evidence that he picks [X] up from daycare at about 5.00 pm, brings her home where they have a play, she has a meal between 6.30 pm and 7.00 pm, then a bath, they read a book and she is put to bed by 8.00 pm.
The father was cross-examined at some length as to what it is that he feeds [X] and precisely what time she has her dinner. His evidence in this regard was less than compelling, as he spoke about feeding her when she was hungry. As she is not fully verbal, the father was asked how he would know this. It was his evidence that [X] goes to the pantry or to the fruit bowl and it is from these actions that he knows she would like some food. His descriptions of what her meals generally consist of were also a little vague. It was difficult to know whether this evidence indicated a lack of knowledge or understanding on the father’s behalf in relation to [X]’s nutritional needs or was more a reflection of his personality and communication style.
A major complaint of the mother’s is that [X] is very unsettled after spending time with her father during the week and that when she has been returned to Family Day Care, she has suffered from quite severe diarrhoea, which the mother believes is caused by [X]’s nutrition whilst with her father. It was the father’s evidence that he has not had any particular issues with [X] having runny stools or diarrhoea, and that upon being advised of [X]’s allergy to citrus, he has ensured that she has not been given any citrus in his home.
The mother also complained of [X] returning from her time with her father being unsettled, disruptive, throwing tantrums and taking up to two days to be settled. This behaviour was also observed by Ms D, her family day carer. It was the father’s evidence that he has had no issue with [X] having tantrums whilst in his care, nor has he had difficulty settling her to sleep or with her behaviour generally.
The father was questioned as to the level of his financial support for [X]. It was his evidence, confirmed by correspondence from the Child Support Agency, that he has a nil assessment in relation to the level of child support he is to pay to the mother. This would appear to be a reflection of the parties’ disparate income levels. It was the father’s evidence that this was a major bone of contention between himself and the mother, and he indicated that other than paying one day a fortnight for childcare fees, his financial responsibilities for [X] were limited to the time that she was in his care. It was his evidence that he believed it appropriate that when [X] was with him during the working week, he should pay for her childcare costs and that when [X] was with the mother, she should pay for the childcare costs. The father exhibited little insight as to the potential inequity of this position or why the mother would be unhappy that from her perspective she bore the bulk of the financial responsibility for their daughter.
When this matter came back before the court in November 2009, the court was advised that Ms D was no longer engaged in the provision of Family Day Care. The mother gave evidence that this was as a direct result of complaints made by the father against Ms D to Family Day Care. When questioned as to whether he had made complaints about Ms D, and in particular whether he had made complaints about Ms D after she had been required to give evidence at the hearing of this matter in July 2009, the father conceded that he had spoken to Family Day Care. He was adamant however that it had nothing to do with the evidence given by Ms D in court, but rather his concerns that in breach of promised confidentiality of any discussions that he had privately with Ms D, she had relayed their private conversations to the mother, and in those circumstances he felt that she had behaved contrary to the requirements of care providers.
The mother indicated that upon being advised that Ms D would no longer be available to provide daycare for [X], she had attempted to speak to the father about making alternate arrangements for Family Day Care for [X], and in particular with whom she should be placed, whether the father would look after [X] and whether the father would help with payment. It was the mother’s evidence that the father has refused to discuss these matters with her.
The father, when questioned in relation to what the future care arrangements for [X] should be, gave evidence that he was initially seeking orders that she spend four days a fortnight with him, that he would care for her himself during that period and that it would be a matter for the mother to make what arrangements she deemed appropriate for the time that [X] was in her care. He showed no willingness to engage with the mother in these discussions, nor did he seem to recognise that as [X]’s parent, he should have involvement with and input into [X]’s care at all times, not just when she was with him.
When specifically questioned as to how he thought he and the mother could improve their communication, the father had no idea how this could occur in either the short, medium or long-term future.
Having said that, the father was not critical of the quality of the care that the mother provided to [X], and spoke positively of her as a mother. His major issue with the mother was his perception that she did not facilitate or encourage [X]’s relationship with him.
The mother’s proposal
It was not until closing written submissions were received from the mother’s Counsel that the mother clarified for the court, and the father, what her proposal for [X]’s care is.
It is a very lengthy and detailed proposal and is set out in its entirety as follows:
1.That the Mother is to have sole parental responsibility for the child, (“the child”) [X], born [in] 2007.
2. That the child is to live with the Mother.
3.That all previous parenting orders in relation to the child are to be discharged.
4.That the Father’s time spent with the child is to be suspended until the completion of current investigations into the child’s health, but the Father may visit the child in hospital as approved by [X]’s treating medical and health practitioners.
5.That the Mother is to do all such things as are necessary to authorise [X]’s treating medical and health practitioners to discuss [X]’s progress and health needs with the Father.
6.That upon [X] being discharged from hospital and her treating medical and health practitioners certifying that she is in a fit state to travel and resume Family Day care, the Father spend time and communicate with [X] until [[X]’s birthday] 2010 as follows:-
(a) Upon giving the Mother at least 12 hours’ notice of his intention to do so, during day time hours between the hours of 9am and 12 noon and/or 3pm and 5pm on any weekday.
(b) Each alternate Saturday from 9am to 5pm and Sunday from 9am to 5pm (consecutive days) commencing on the first Saturday after [X]’s treating medical and health practitioners certify that she is well enough to spend time with her father.
(c) At such other times as agreed between the parents in writing.
7.Thereafter, commencing on the first weekend after [X]’s third birthday, [date omitted] 2010, and provided that [X]’s treating medical and health practitioners certify that she is sufficiently well to spend such time with her father, the Father is to spend time and communicate with [X] as follows until [[X]’s birthday] 2011:-
(a) As per paragraph 6 (a) above.
(b) In lieu of paragraph 6(b) above from [[X]’s birthday] 2010 until [date omitted] 2010 each alternate weekend from 9am on Saturday until 5pm on Sunday to continue the cycle as per paragraph 6 (b) above.
(c) Thereafter, commencing on the first weekend in the preceding cycle after the [date omitted] 2010, when the child attains the age of 3 and a half years, in lieu of paragraph 7 (b) above, until the child commences school, on each alternate weekend from 5pm Friday until 5pm Sunday.
(d) At such other times as agreed between the parents in writing.
8.Thereafter, commencing on the first weekend after [X] commences school and provided that [X]’s treating medical and health practitioners certify that she is sufficiently well to spend such time with her father, the Father is to spend time and communicate with [X] as follows in lieu of paragraph 7 above:-
(a) Each alternate weekend from after school on Friday until before school on Monday during school term time with the Father to collect [X] from school at the commencement of his time to be spent with her and deliver [X] to school in time for the commencement of the school day at the conclusion of his time spent with her.
(b) From after school until 6pm each Wednesday.
(c) For the school term holidays in 2012 the alternate weekend cycle is to continue but is to extend until 5pm Wednesday in the first weekend of the cycle which falls during such school term holiday times with the cycle as per paragraph 8 (a) above to resume once the school term holidays conclude.
(d) For the long summer school holidays at the end of 2012 for 2 non-consecutive weeks at times as agreed in writing between the parents.
(e) From 2013 and each succeeding year thereafter for half of all term school holidays and for two weeks in the long summer school holidays at times as agreed in writing between the parents and, failing agreement, commencing at 10am on the Saturday following the conclusion of the school term and concluding at 5pm on the following Saturday for the first half of all term school holidays in 2013 and each alternate year thereafter and for the second half of all term school holidays commencing at 10am on the second Saturday following the conclusion of the school term and concluding at 5pm on the following Saturday in 2014 and each alternate year thereafter and for 2 weeks from 9am on the first Saturday in January 2014 until 5pm on the Saturday two weeks later.
(f) Once school holiday time commences the Father’s weekend and mid week time spent with [X] is to be suspended during all school holidays and is to resume on the first weekend at the conclusion of the first week of each school term.
(g) The Father is to have liberty to communicate with [X] by telephone at reasonable times, not later than 8pm and no more than twice in each week.
(h) At such other times as agreed in writing between the parents.
9.That for the purpose of the Father’s spending time with [X] when changeovers do not take place at [X]’s school, such changeover are to take place at the premises of [X]’s Family Day care when she attends such Family Day care and at the Mother’s residence on non-school and non-Family Day care days with the Father to collect [X] from school/Family Day care/the Mother’s residence at the commencement of time spent and return her to school/Family Day care/the Mother’s residence at the conclusion of time spent.
10.In addition to time spent as stipulated above provided that [X]’s treating medical and health practitioners certify that she is sufficiently well to spend such time with the Father [X] is to spend special occasion times with the Father as follows :-
(a) From 10am to 4pm on Father’s Day if Father’s Day falls during a weekend when [X] is with her mother.
(b) For [X]’s and for the Father’s birthday for 2 hours on a school day, if [X]’s birthday and the Father’s birthday fall on days when [X] is not otherwise with the Father, at times to be agreed and, failing agreement from after school until 5.30pm.
(c) For [X]’s and for the Father’s birthday for 4 hours on a non-school day, if [X]’s birthday and the Father’s birthday fall on days when [X] is not otherwise with the Father, at times to be agreed and, failing agreement from 10am until 2pm.
(d) For Christmas in 2009 and each alternate year thereafter from 6pm on Christmas Eve (24 December) until 6pm on Christmas Day (25 December) and each alternate year thereafter.
(e) For Christmas in 2010 and each alternate year thereafter from 6pm Christmas Day (25 December) until 6pm Boxing Day (26 December).
(f) If [X] is not otherwise spending time with the Father, for 2 consecutive days in the Easter weekend as agreed in writing between the parents.
11.That the Father’s time with [X] is to be suspended as follows to allow [X] to spend special occasion time with the Mother if such times fall on days when [X] is otherwise spending time with the Father:-
(a) From 10am to 4pm on Mother’s Day.
(b) For [X]’s and for the Mother’s birthday for 2 hours on a school day, if [X]’s birthday and the Mother’s birthday fall on days when [X] is otherwise with the Father, at times to be agreed and, failing agreement from after school until 5.30pm.
(c) For [X]’s and for the Mother’s birthday for 4 hours on a non-school day, if [X]’s birthday and the Mother’s birthday fall on days when [X] is otherwise with the Father, at times to be agreed and, failing agreement, from 10am until 2pm.
(d) For Christmas in 2010 and each alternate year thereafter from 6pm on Christmas Eve (24 December) until 6pm on Christmas Day (25 December) and each alternate year thereafter.
(e) For Christmas in 2009 and each alternate year thereafter from 6pm Christmas Day (25 December) until 6pm Boxing Day (26 December).
(f) If [X] is otherwise spending time with the Father, for 2 consecutive days in the Easter weekend as agreed in writing between the parents.
12.That the Father is to be in substantial attendance when he spends time with [X].
13.That once the child is well enough to return to Family Day care the Father and the Mother are to continue to place the child in Family Day care with Ms D as long as Ms D is able to accommodate such care and when the child is not otherwise in the care of either the Mother or the Father and is not otherwise attending kindergarten or school.
14.That the costs of Family Day care should be borne in equal shares between the Father and the Mother with each parent to pay half of the total weekly costs.
15.That the Mother and the Father are to notify each other of any medical or other emergency affecting the child as soon as practicable and are to authorise all medical and health practitioners treating the child to discuss the child’s health and health needs with the other parent.
16.That both parents are at liberty to attend parent-teacher interviews and school events to which parents are normally invited and to receive school reports and other information and school photograph envelopes normally provided to parents at the expense of the recipient parent if any and the Mother is to keep the Father advised of the name, address and contact details of any school attended by the child.
17.That the Father and the Mother are to keep each other advised of their current residential addresses and contact telephone landline and mobile numbers and are to advise each other in writing of any change of address or contact telephone number/s within 7 days of any such change.
18.That the Father and the Mother are to communicate with each other in respect to issues involving the child by SMS text messages and such messages shall not include any message that is abusing, insulting, belittling, rebuking, or otherwise denigrating of the other parent.
19.That all dogs present at the Father’s residence are to be securely enclosed in pens or cages whilst the child is at the Father’s residence and the Father is to ensure that the child does not come into contact with such dogs.
20.That the Father is not to consume any alcohol in the period of 24 hours before spending time with the child and while the child is in his care.
21.That the Father and the Mother, their servants and agents, be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating each other or any member of each other’s households or families in the presence or hearing of the child or of permitting any other person to so do.
22.That the Mother and the Father be and are hereby restrained by injunction from entering any home occupied by the other.
23.That in the event of any disputes as to [X]’s care the Father and the Mother are to attend mediation at an approved Family Dispute Resolution/Mediation or Relationship Centre or with a Family Dispute Resolution Provider listed on the Attorney General’s Family Pathways website with the costs of any such mediation to be paid equally by the Father and the Mother..
24.That all extant applications and responses be dismissed.
25.That subsequent to the order made in paragraph 4 of the orders made on 17 March 2009 at the Federal Magistrates Court in Bendigo, if he has not already done so, the Father is to forthwith pay to the Mother’s solicitor half of the costs of the preparation of the psychiatric report prepared by
Dr D.
26.That the Father is to pay the Mother’s costs of and incidental to these proceedings.
27.Certify for Advocacy (usual orders)
28.Usual s.65DA(2) and s.62B orders.
The mother’s evidence
It was apparent from the mother’s evidence that she still harbours enormous resentment and hurt at what she sees as the father’s treatment of her and [Y] in ‘kicking them out’ of his home when she was four months pregnant with [X]. She believes the father ‘abandoned’ them when he had promised an ongoing and secure relationship.
The mother had an extremely difficult time shortly after [X]’s birth when the burden of caring for a newborn baby at the same time she was trying to continue in fulltime employment was clearly overwhelming. It was her evidence that she sought assistance from the father during this period and truly believes that he failed to provide that to her when she was desperately in need.
It was the mother’s evidence that the arrangements that were put in place for [X], pursuant to the interim consent orders made on 4 June 2008 whereby [X] lived with her father each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, each alternate overnight Thursday and each alternate overnight Monday, were in excess of what [X] could cope with at her very young age, and that she was exhibiting physical and behavioural problems arising from those arrangements.
As noted earlier in this judgment, the mother bought an Application in a Case seeking to vary those orders by suspending the overnight time that [X] spent with her father during the week. In support of that application, in addition to her own affidavit setting out the symptoms she said [X] was suffering from being tantrums, diarrhoea and distress, the mother filed an affidavit from [X]’s then family day carer, Ms D. Ms D confirmed [X] was exhibiting the behaviours described by the mother, as well as the physical symptomology of severe diarrhoea after times with her father.
Having heard that interim application, I made orders in May 2009 that suspended the overnight Thursday time but otherwise left the existing orders in place.
It was the mother’s evidence that since the suspension of the overnight Thursday time, there had been a measurable improvement in [X]’s behaviour and in her toileting. This too was confirmed by Ms D.
When [X] became extremely ill and was admitted to the Royal Children’s Hospital, the mother brought a further Application in a Case in which she sought orders for sole parental responsibility and for there to be a suspension of any orders for [X] to spend time with her father.
In support of that application, the mother’s affidavit, sworn 20 August 2009 and filed 24 August 2009, set out that because all communication had broken down between the father and herself and that they were unable to make joint decisions concerning [X]’s welfare, she was seeking to be granted sole parental responsibility.
The mother also deposed as follows:
“I believe that the vigorous spend time with regime has taken a toll on [X]’s health and well being and has contributed to her current health problems.”
This paragraph in the mother’s affidavit is a fair indication of the mother’s views as to the negative impact of [X] spending time with the father.
When that application came before me, I dismissed the mother’s application, save to add a proviso to the existing orders that the time that [X] was to spend with her father would be subject to the advice of [X]’s treating medical practitioners.
When the matter was heard in July 2009, the mother was cross-examined at some length as to her views as to the father’s parental capacity and to what, if any, benefits she perceived [X] would gain by having a meaningful relationship with her father.
It was apparent from her evidence that the mother has minimal confidence in the father’s parental capacity, and that she does not believe that the father has the necessary skills to properly care for [X] for any extended period of time.
When presented with evidence from Mr Tony O’Dwyer, the family report writer, who attended and observed [X] in her father’s care in his home, the mother was dismissive of Mr O’Dwyer’s positive observations of the father’s parenting, noting that the observations had taken place early in the morning when [X] was well-rested and compliant, and that because the father had had prior notice of
Mr O’Dwyer’s attendance, he had set things up to make him look good.
In response to the question:
“Can you tell Her Honour some of the good things that you think Mr F would bring to [X]’s life as a dad?”
it was the mother’s evidence as follows:
“I’m not really sure of what good things he brings. I know he loves her so I guess that’s the biggest thing. That he does love her and that she would feel loved, but apart from that I don’t know what else he offers or he gives.”
The mother was then asked if there was anything in the father’s character or personality that would be advantageous to [X] as she is growing up. Her reply to that was:
“I don’t really – well, maybe he likes running so maybe he could teach her sports or something. I don’t really know what you want me to say or what I’m expected to say. I can’t think of anything offhand that I think he’s brilliant at and that she’s going to really benefit from, you know. Laying bricks. He’s a good brick-layer but I don’t know that she’ll ever do that so I don’t know.”
The mother was then again asked if there was anything about the father’s character or personality that she thought would be good for [X]. Her reply was:
“Well, given, you know that we were abandoned that way, that we were I can’t say that, well no not really. I can’t think of anything that, I know that, as I said, I know that he loves her. I don’t doubt that. I don’t think he’d ever deliberately hurt her. He’s never been caring or nurturing or anything. He’s got a good work ethic. Like, he gets up – he used to get up early and go to work all day. So he’s, like, he never used – wasn’t a bum or anything.
I don’t know.”
It was very apparent from this evidence and from the tenor of the mother’s evidence generally, that she actually cannot see any real benefit for [X] in having a relationship with her father.
It was also very apparent that the mother views the father very negatively, is quite contemptuous of him and was in many ways is condescending to and of him, his level of intelligence and level of education.
Perhaps Ms Clifton’s opinion of the father can be best summed up in this quote:
“I don’t doubt [Mr Maddocks] loves [X] and does the best he can with his limited parenting skills.”
It was the mother’s evidence that she has received minimal financial support from the father in respect to [X]. She agreed that there had been a nil assessment by the Child Support Agency and indicated that she was pursuing a review of that determination on the basis that the father has considerable property holdings.
It was a common theme in the mother’s affidavit material, as well as in her oral evidence, that she would be very open to the father having as much daytime time with [X] during the working week as he desired. This in part accorded with her belief that [X] was having difficulty coping with overnight time in her father’s care, but also seemed to be directed towards minimising the daycare costs that she currently bears the brunt of.
It was the mother’s evidence that she cannot communicate with the father. She indicated that she has attempted to discuss childcare arrangements with him, has requested his assistance to look after [X] when she had other commitments, attempted to discuss with him [X]’s needs, sought to reach agreement with him to share the responsibility of taking [X] to her medical appointments at the Royal Children’s Hospital and that on all occasions he refuses to respond or engage with her.
It was clear, when giving her evidence, that the father’s failure to engage with her caused the mother a great deal of frustration and is one of the primary reasons she believes that there needs to be an order for sole parental responsibility.
The mother is a highly intelligent, organised, focussed and, it must be said, intense woman. She responded quite negatively to the family reports prepared by Mr Tony O’Dwyer, psychologist, as she perceived them to be critical of her and her parenting of [X]. I would note that this was not how I read either of Mr O’Dwyer’s reports.
What is apparent is the mother has very strong opinions and does not respond well to any opinion or view that differs from her own. When this trait is put into the context of [X]’s care, it does raise concern as to the mother’ compliance with any orders that put in place arrangements for [X] that differ from what she believes is in [X]’s best interests. The court does note however that the mother has generally complied with the parenting orders made in this matter to date.
The mother gave evidence that she is in a relationship with Mr F. They do not live together, but spend considerable time with each other. Mr F lives in close proximity to the mother and it was her evidence that, particularly during the summer months when she picks [X] up from daycare, she and [X] go to Mr F’s house where they have dinner together and only return home when it’s time for [X] to go to bed.
It would appear that at this time Mr F is assisting in [X]’s care during the week whilst the issue of daycare is resolved and when the mother and/or the father are otherwise unavailable to care for her.
Ms D
Ms D was [X]’s family day carer from October 2007 until her admission to the Royal Children’s Hospital in July 2009. Ms D gave evidence on behalf of the mother.
Ms D filed two affidavits, one on 4 May 2009 and the second on
20 July 2009. Ms D also gave viva voce evidence at the hearing of this matter in July 2009.
It was Ms D’s evidence that, when in her care after spending
mid-week overnight time with the father, [X] was unsettled and difficult to manage and that she had continuous runny nappies.
It was Ms D’s evidence that after there was a diminution in the
mid-week time that [X] was spending with her father, she was much more settled, was much happier and that the issue with the runny nappies had all but disappeared.
She gave oral evidence that [X] appeared to be happy to go with either of her parents.
Ms D gave evidence that she had noted that if both parties attended her premises at the same time, they did not speak to each other and that she was of the opinion that [X] was starting to notice the lack of communication between her parents.
Anthony Dennis O’Dwyer
Mr O’Dwyer is a Regulation 7 Family Consultant with the Federal Magistrates Court of Australia and he prepared two family reports in this matter pursuant to section 62G(2) of the Family Law Act 1975 (“the Act”), the first dated 16 March 2009 and the second dated 20 July 2009. Mr O’Dwyer also provided oral evidence at the final hearing of this matter.
The recommendations of Mr O’Dwyer did not vary markedly between his two reports. In his report of 20 July 2009, he made the following recommendations:
1. [X] live with her Mother
2.Equal parental responsibility – with a mechanism provided to the parents as to how they will do so. One example will be how they will choose a primary school for [X]. If Ms Clifton moves to [M] there are a number of Schools available. This will undoubtedly be an issue in the future.
3.Regular time with Mr Maddocks to increase in a graduated fashion with clear timelines of change and expectations. Such change should be introduced through the current childcare (and later School) arrangement so the parents contact with each other is kept to a minimum. One suggestion is to remain with the status quo for a further three months then introduce a further overnight time such as the Sunday night so that [X] is taken to Day Care Monday instead of to Ms Clifton Sunday night.
4.Time with father/mother for special occasion times. Usual times would seem appropriate, such as Mother’s Day with Mother, Father’s Day with Father, provision for Birthdays and other special occasion times. The issue of Christmas will need to be addressed.
5. Non denigration clause.
6. Ms Clifton seek counselling.
7.Communication – A mechanism regarding how the parents can effectively communicate needs to be formulated. This may be written (communication book or text/email).
As noted earlier in this judgment, the mother took some exception to Mr O’Dwyer’s family reports, and in particular to certain observations he had made of her, her personality and parenting style. Mr O’Dwyer was cross-examined at some length in relation to these issues by both parties’ Counsel and I am satisfied that Mr O’Dwyer exhibited no bias in relation to either of the parties, but rather he had made an objective and professional assessment of the parties, their relationship with each other and the child, and put forward proposals that he had determined would be in the child’s best interests in a professional, competent and enlightening manner.
Under cross-examination, Mr O’Dwyer was questioned as to whether he believed the mother was someone who wanted the child to have a relationship with the father. In response it was Mr O’Dwyer’s evidence as follows:
“I think Ms Clifton is a person who is very clear about what she believes is right rather than someone who would prefer the child not to have a relationship at all with the other parent.”
In relation to the father, Mr O’Dwyer described him as someone who actively seeks to avoid confrontation.
When commenting on the dynamics of the relationship between the parents, Mr O’Dwyer offered the following observations in his evidence:
“The dynamic of the adult relationship is such that Mr Maddocks is reluctant to open up conversation with Ms Clifton. He has advised me that he finds it very difficult and is not sure what sort of response he will get. So I think he’s avoiding. He gets a reactive reaction from Ms Clifton and his preference is to avoid rather than to open that up.”
It was Mr O’Dwyer’s evidence that whilst the father had concerns about the mother supporting his relationship with [X], he had no criticism of her as a parent. It was his evidence that the father thought the mother was a good parent, but that as a co-parent he found that dynamic very difficult to manage.
Mr O’Dwyer was specifically asked as to what he would recommend to assist the parties to better communicate. It was his evidence as follows:
“Your Honour, I don’t know what to recommend. It’s one of the cases where I am baffled as to how they will be able to effectively communicate.”
One of the mother’s real concerns in relation to the previous and existing arrangements for [X] is what she perceives to be the disruption to [X]’s routine, the disruptive behaviour that [X] exhibits after spending time with her father, and the impact that has on [X] and on the mother’s household as she has to settle [X] down and get her back into a routine. Mr O’Dwyer was asked to comment on this. It was his evidence as follows:
“I think that when [X] is with her father she is the centre of attention. There is noone else in the household and I think he ‘downs tools’ for his time with her. My sense with Ms Clifton and the comment from Dr D is that perhaps she is overcommitted. She’s busy. Now, that’s not a criticism, it’s an observation, but I suspect Ms Clifton will see it as a criticism. There’s a structure and routine and it works around Ms Clifton’s work. I accept that, and for many parents that’s the case. But I think it’s a different experience for [X], when she’s one of three or maybe more in that household which I get the sense is very busy. Whereas I think
Mr Maddocks offers [X] downtime.”
Mr O’Dwyer was specifically asked to comment on the competing proposals of the parties. It was his evidence as follows:
“The dynamic is between the adults. [X] is the innocent one here who is having to journey through this. I think it’s difficult for her. I can’t see a quick change in the dynamic. I think that the positions are quite entrenched. I feel sorry for [X]. I think she’s got two good parents, but not two good parents together. The way they want to parent is quite different. No, that’s not correct. The motivation and the anger and the history that they share, and the disappointment is getting in the way of them being able to co-parent. It’s very sad to see, and I think it’s very difficult for [X]. That’s why I recommend clear, graduated times, very clear times, so that it gives little opportunity for the parents to argue about what is or what could be. I’d hope in time that they might be able to shift, but I don’t see that happening quickly, unfortunately.”
Mr O’Dwyer was specifically asked about the introduction of holiday time for [X]. It was the mother’s proposal that this not commence until [X] starts school, whereas the father is seeking to be able to spend increasing holiday time with [X], building up to half the holidays.
Mr O’Dwyer gave evidence that he couldn’t see why holiday time between the father and [X] could not start prior to school, but being mindful of the fact that Ms Clifton and [X] had only ever spent two nights away from each other, it would be appropriate to ‘start small’ and then to graduate up. Mr O’Dwyer made it clear that the court would have to make detailed orders setting out the graduated regime as he doubted that it would otherwise occur. Mr O’Dwyer could see no reason why holiday time could not commence with three nights, then four nights and gradually building up over time. He did not believe this process needed to wait until [X] was 5 or 6 years of age.
In relation to an equal sharing of the holidays, it was Mr O’Dwyer’s evidence that most children get very tired in the first year of school and that it would perhaps be more appropriate to introduce that when she was in Grade One when [X] was likely to be a little more robust.
As part of the report process, Mr O’Dwyer observed [X] with her father in her father’s home on 18 July 2009.
On pages 14 and 15 of the family report dated 20 July 2009,
Mr O’Dwyer noted the house to be warm and inviting, and that [X] seemed happy in the environment. He saw the house as neatly presented, with evidence that the father pays attention to detail in a consistent manner. He described the home as well ordered and clearly a safe haven for a child. He also noted that the environment was quiet, that it was tranquil and provided a space for the father and daughter to enjoy each other’s company. Mr O’Dwyer noted that the father clearly enjoyed his time with [X] and met her needs as required and that this provided an image:
“of a most harmonious settled setting.”
In cross-examination, Mr O’Dwyer was challenged by the mother’ s Counsel as to whether his observation truly reflected the usual circumstances for the child or whether the father had, because of being put on notice of the home visit, been:
“putting on a show for his benefit.”
Mr O’Dwyer did not accept that proposition and was satisfied that what he saw was the environment that [X] was in when she spent time with her father.
It was Mr O’Dwyer’s evidence that he also attempted to make arrangements with the mother for a home visit upon [X]’s return to her on a Sunday afternoon following spending time with her father. Mr O’Dwyer was quite keen to observe [X] in this circumstance, particularly as it was the mother’s evidence that [X] was unsettled and unhappy upon her return to her mother after spending time with her father. Unfortunately, the mother did not agree to this home visit taking place as she felt it was an invasion of privacy and, it must be said, in light of the (incorrect) advice of her legal practitioner that such a home visit was not something that was normally conducted as part of the family report process. In fact the mother’s solicitor wrote a quite terse letter to Mr O’Dwyer challenging his request. It is unfortunate that this home visit to the mother did not take place as Mr O’Dwyer’s observations would have been of assistance to the court.
Dr D
Pursuant to an order made on 5 May 2009, the mother attended upon Dr D, psychiatrist, for the preparation of a psychiatric assessment and report.
In accordance with that order, the mother attended upon Dr D on
4 June 2009 and his report was provided to the court dated 10 June 2009. Neither party sought to cross-examine Dr D in relation to that report.
Dr D took a detailed history from the mother, with which she takes no issue.
In his report, Dr D makes the following observations in relation to the mother:
“Ms Clifton, whilst not having a diagnosable mental illness or obvious personality disorder, may benefit from psychological therapy, is (sic if) she is willing to engage… She has a background history that lends itself to the potential for a range of psychological issues. Her emotional fragility in the interview is an indication that she has a number of buried issues that need working through psychologically. If she can work through these issues it may well improve her psychological robustness and assist her in the parenting of her two children… Whilst Ms Clifton does present with a number of issues and emotional fragility it does not necessarily reflect that she is not capable of being an effectively caring and protective parent to her children. However, she may be able to perform her parenting duties more effectively with greater support and psychological stability.”
Dr D also noted that:
“There is a suggestion that Ms Clifton is possibly over-committed.”
The mother was specifically asked as to whether she believed that she would benefit from psychological therapy and whether she was willing to engage in same. It was her evidence that she did not believe that she needed such therapy and that she would not be pursuing any such intervention.
In his report of 20 July 2009, Mr O’Dwyer in the final paragraph on page 20 of his report notes as follows:
“If the Court were to accept the writer’s view that a graduation be introduced Ms Clifton may require assistance to accept these changes. In any event, given Dr D’s recommendation, it would seem beneficial for Ms Clifton to seek to undertake ongoing counselling.”
Best interests of the child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections 1 and 2 of that section provide as follows:
1. 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.
2. 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.
In this matter, the father seeks orders for equal shared parental responsibility in relation to [X], whereas the mother is seeking an order that she have sole parental responsibility for her daughter.
It was the mother’s submission that because of the complete inability of the father and herself to communicate on any level in relation to [X], that they do not have any capacity to make joint decisions in relation to their daughter. It is her evidence that the father refuses to engage in any communication with her and that he rejects any suggestions or proposals that are made by her in relation to [X]’s care.
It was the mother’s evidence that there was a period when she attempted to utilise a communication book as a way of exchanging information about [X] with the father, but that he would not utilise the communication book and that after a relatively short period of time he simply failed to return the communication book to her at changeovers for [X].
It was the mother’s evidence that the difficulty the parties have in communicating with each other was brought starkly into play when [X] was recently seriously ill and there needed to be ongoing and continuous communication between [X]’s parents and her treating specialists.
It is the father’s evidence that he wishes to be an active participant in his daughter’s life, including having involvement in the major decisions that will affect [X]’s life.
It was his evidence that the mother unilaterally makes decisions for [X] without any consultation with him and that unless there is an order that will ensure that he has input into these decisions, this will continue into the future.
It was the father’s evidence that during [X]’s recent health crisis, he and the mother did communicate appropriately with her treating medical practitioners and that appropriate decisions were made for [X]’s care that he had input into and full knowledge of.
Having said that, it was the father’s evidence that he really had no idea as to how communication between himself and the mother could improve or in any way be effective into the future.
In the recommendations contained in his family report dated 20 July 2009 as set out earlier in this judgment, it is Mr O’Dwyer’s recommendation as follows:
“Equal parental responsibility – with a mechanism provided to the parents as to how they will do so.”
It should be noted however that it was Mr O’Dwyer’s evidence that he was not sure what kind of mechanism could be effective to enable these two parents to communicate on any level in relation to the decisions that will need to be made for their daughter as she gets older.
Ms Clifton and Mr Maddocks are two completely disparate personalities. Ms Clifton is forceful, articulate, driven, highly intelligent and has a strong belief in her own opinions and views.
Mr Maddocks is taciturn, quiet, a ‘doer’ rather than a ‘thinker’ and someone who prefers to avoid confrontation and conflict. He has a strong sense of right and wrong, and seems to be comfortable when operating within rules and boundaries. He is therefore someone who would have difficulty operating outside orders of the court.These quite disparate personalities make it very difficult for the parties to communicate, but do bring a balance to [X] and to the decisions that need to be made in relation to her life now and into the future.
To grant either of these parents sole parental responsibility would, in my opinion, not be in [X]’s best interests as that balance is going to be vitally important in ensuring that the decisions that are made for her have been considered from the perspectives that both her parents can bring to that decision making process.
Accordingly, I intend to make an order that the parties have equal shared parental responsibility for [X].
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Whilst the father has flagged that at some time into the future, he would like to have equal time with [X], that is not an order that he is pursuing at this time. Given [X]’s relatively young age and the limitations on the parties’ ability to communicate at this time, that is a sensible decision on his part.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The father is seeking orders that provide for him to spend substantial and significant time with [X] pursuant to a graduating regime. The mother’s proposal, whilst restricting the amount of overnight time that [X] spends with her father could be seen to also involve [X] spending substantial and significant time with her father in that she is proposing [X] spend “unrestricted” weekday time with the father. However, he too runs his own business and is not necessarily in a position to take advantage of that proposal. Further, the mother’s proposal severely limits holiday time and her proposals once [X] starts school are quite limited. Accordingly, I do not find the mother’s proposal would enable [X] to spend significant and substantial time with her father.
When determining what arrangements should be put in place for a child, the Act quite clearly sets out that the orders the court must make be in the best interests of the children. In order to determine what is in the children’s best interests, the court has to consider the matters set out in sections 60cc(2) and (3) of the Act.
Each of the matters set out in subsections 2 and 3 of section 60cc of the Act are to be considered and assessed in the context of each of the parties’ behaviours and proposals, and a decision then made as to which of those proposals, or such other proposal as the court may determine, will be in the child’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Section 60cc 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
The father raises no concerns in relation to [X]’s care with her mother, save and except his belief that she is not actively promoting [X]’s relationship with him.
In contrast, the mother is of the view that the father’s parenting skills are limited, that he lacks insight into [X]’s dietary needs resulting in her developing diarrhoea when in his care, that he may put ‘drinking with his mates’ ahead of his obligations to look after his daughter, and that his home environment is not safe and in particular that he has vicious dogs that need to be restrained.
The consent orders made in June 2008 make provision for the father’s dogs to be penned whilst [X] is living with him. During the father’s evidence, he indicated he would agree to orders being made that left this restraint in place.
The father also gave evidence he would agree to an order restraining him from consuming alcohol when [X] was in his care. In relation to the latter however, there was no evidence such an order is necessary.
I do not accept that [X] is at risk in her father’s care, particularly in light of Mr O’Dwyer’s observations during his visit to the father’s home. I am satisfied that she is not at risk of either emotional or psychological harm when in the care of either of her parents.
It is quite clear that [X] has a close and loving relationship with both her parents.
What is also apparent is that the mother has some difficulty in accepting the importance to [X] of having a meaningful relationship with her father because of the very low opinion that she has of him as a person.
Having said that however, the mother has, for all extents and purposes, complied with all the orders of this court to ensure that [X] does spend time with her father and there is no evidence that she has overtly or actively sought to undermine [X]’s time with her father. She acknowledges the close and loving relationship that they have with each other.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account and each of these will be considered in turn where relevant.
Section 60cc 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
As [X] is only two years of age, she is not in a position to express any views in relation to what arrangements work best for her, save and except that she was observed to be comfortable and well attached to both of her parents.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
There is no doubt that the mother is [X]’s primary carer and that they have a close, loving and trusting relationship with each other.
[X] also has a close and loving relationship with her father and, as observed by Mr O’Dwyer, enjoys her time with her father in the perhaps more relaxed and tranquil setting of his home.
[X] has a half-brother, [Y], who is thirteen years of age. The mother describes them as being close, though it must be acknowledged that as [Y] progresses more into adolescence, his relationship with his peers will take on more prominence.
Both the parties seem to have re-partnered but neither are living in a
de facto relationship, and gave evidence that they have no intention of doing so in the medium to long-term future.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) 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; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
It is quite apparent that the mother does struggle at times in facilitating [X]’s relationship with her father in circumstances where the arrangements for that relationship do not accord with what she believes best work for [X] and best work for her in the context of her very busy, organised lifestyle.
The mother has difficulty in accepting that the father can bring anything positive to [X], partly because of the intense distress that she suffered when the relationship broke down and partly because she is quite disdainful of him as a person.
The mother does not involve the father in the decision-making processes in relation to [X]. An example of this is when she made a unilateral decision to change the changeover arrangements for [X] so that the father picked her up from daycare rather than the mother’s home without consultation with him. That this was in fact a better outcome for [X] does not obviate the importance of the mother consulting with the father before such changes are put in place.
There is also concern in relation to the father’s attitude to the mother. He resists any attempts of communication with her and seems to reject her proposals on the basis that they have come from the mother rather than necessarily accepting that the proposal might be in [X]’s best interests. A prime example of this was when the matter came back before the court in November 2009. It was the mother’s evidence that she had been trying to reach agreement with the father that they share the responsibility of [X]’s hospital trips by taking it in turn to take her to Melbourne. This seemed an eminently sensible suggestion, but was only agreed to by the father with the intervention of the parties’ lawyers.
This indicates a somewhat rigid attitude in the father with respect to [X]’s care and seems to be, as noted earlier, the father’s response to his difficulties with the mother rather than he accepting the importance that he focus on a way forward that may be in [X]’s best interests.
Section 60cc 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
Both parents live in the Bendigo area and neither is proposing to move away from there.
Whatever arrangements are put in place for [X], the alterations in circumstances aren’t such that they will impact on [X] and her relationships.
Section 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
As indicated in the previous subsection, the parties are sufficiently geographically close that any arrangements that are put in place for [X]’s care are not going to impose any practical difficulties.
What is apparent however is that whatever those arrangements are, they should minimise the interaction that the parents have with each other at this time.
Section 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
I am satisfied that both parents have the capacity to provide for [X]’s physical, intellectual and emotional needs most of the time.
I have already commented at length in this judgment on the parents’ inability to communicate and cooperate with each other and as [X] matures, she is going to become more conscious of this and it is going to make things more difficult for [X] on an emotional level.
It was Ms D’s evidence that she has already observed some confusion in [X] when observing her parents’ inability to communicate and it can only be hoped that both parents will take an opportunity to consider their responsibility as parents to look at ways to better communicate and cooperate with each other.
Section 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
Not relevant.
Section 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;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has been [X]’s primary carer since birth and provides her with a stable and loving home.
Because of the unhappy and bitter circumstances of the breakdown of the relationship, the father’s initial involvement in [X]’s life was somewhat limited. I am satisfied however that he has actively pursued the relationship with his daughter and is intent upon having a significant and meaningful role in his daughter’s life now and into the future.
The dynamic of the parental relationship is such that it interferes with these parents looking after their daughter to the best of their ability, in that they are completely incapable of co-parenting [X] in a positive and cooperative manner. Unfortunately, the reality for [X] is that this dynamic is unlikely to greatly alter in the medium to long-term future, and in that circumstance, the best that she can hope for is that her parents parallel-parent to the best of their ability.
A major issue for the mother is the absence of direct financial support provided directly to her as [X]’s primary carer. Whilst there is a nil Child Support Assessment, and a measurable disparity in the parties’ earning capacities in the mother’s favour, one can’t help but think that for the father to voluntarily assist in the cost of daycare when both parents work full-time and/or to contribute in some other way to the expenses of [X] would go a long way toward alleviating some of the mother’s ongoing anger with the father. It would also show that the father is putting [X] ahead of any ongoing interpersonal disputes that he has with the mother.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
Not relevant.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
Not relevant.
Section 60cc 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
As noted earlier in this judgment, it is the observation of the professionals who have provided reports to this court, and my own observation, that the mother has very strong views as to what are the best arrangements for [X] and will have major difficulties in accepting arrangements or orders that do not accord with those views.
In his family report of 20 July 2009, at page 19, Mr O’Dwyer notes that:
“Ms Clifton’s preference seems to be to fight for what she considers is the correct outcome.”
In these circumstances, it is incumbent upon the court to make the orders that it thinks are in [X]’s best interests, accepting that there is a real potential for this matter to return to court in the event either party is unhappy with what they perceive to be the arrangements as they stand from time to time.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
It is very clear that any orders this court makes will need to be clear and unambiguous. On page 20 of his family report of 20 July 2009,
Mr O’Dwyer makes the following observation:“The writer predicts that any gain in time spent over time will be difficult to manage between the parents given their divergent views.
Given this, the writer respectfully considers that the focus of the Court be to introduce a clearly arranged graduated increase in time in line with [X]’s developmental needs so that a regime of care can be established for the parties and there is clear expectation of each staged increase.
The writer respectfully suggests that Orders should include clear provision for holiday time with each parent as well as clarifying special occasion time. This should include how this is to be graduated and steps needed if the parents falter.
Should the Court consider a graduated increase in time spent then the writer would respectfully suggest adding a night/day to the weekend time so as to effect a block of time and then steadily progress.”
As can be seen from the parties’ competing proposals, there is some divergence as to what should be the arrangements for holidays and special occasions.
In her evidence in chief, the mother indicated that in relation to Christmas in particular, she was seeking orders that each of the parties alternate the entirety of Christmas Day every second year. It was the mother’s evidence that she sought orders in those terms as it was the custom of her family to travel to [C] where the entire extended family gather for the Christmas festivities.
However, in the written proposals received from the mother’s Counsel, the proposal for Christmas Day was for a sharing of that day. In that circumstance I am left a little bemused as to precisely what orders the mother is now seeking for the Christmas arrangements. I further note that the current orders, which were entered into by consent and have been in place for the last 18 months, provide for both parties to spend time with [X] on Christmas Day each year.
In relation to [X]’s health issues, whilst there thankfully has been a marked improvement in [X]’s condition, and she has been cleared of any concerns as to cancer, she does still continue to have real issues with her health that require ongoing treatment and monitoring by the Royal Children’s Hospital. It is going to be important that both parents are fully informed of [X]’s ongoing health issues and ensure that decisions are made in relation to [X]’s care in consultation with her treating medical specialists.
Conclusion
This is a very sad case, in that the parties’ dearly loved little girl [X] is being caught up in the dysfunctional dynamic of the parental relationship.
The parties are quite disparate personalities who have nothing in common but their daughter. They have no ability to communicate with each other and no capacity to see things from the other’s perspective.
Because of this, they have vastly different views as to what is the best way forward for the arrangements for their daughter, and the mother in particular cannot and will not accept that there is any alternative arrangements for [X]’s care that do not accord with her own very strongly held opinions.
I accept that [X]’s experiences in her parent’s households are vastly different. Her mother is a highly successful, competent businesswoman who is a single parent of two children, and who by both personality and necessity, lives a highly structured and organised life. She is a [occupation omitted] who runs her own business, she seems to have an interest in alpacas, she is developing a property on which she hopes to build her dream home, she is in a committed relationship with another man and she is an active member of her community involving herself in many charitable and good causes. Dr D described her as being ‘over-committed’ and whilst it’s not for this court to make any finding in that regard, it’s very difficult to find a great deal of downtime in the mother’s life at this time.
In recent times, [X] has been very unwell and this too must have added to the pressures and difficulties of the juggle of commitments in the mother’s life.
By contrast, the father is a self-employed [occupation omitted]. He lives on a lovely property just out of Bendigo and when [X] is in his care she has his undivided and complete attention.
Mr O’Dwyer, the report writer, described the father’s home as tranquil and having an air of peace. This would seem to contrast markedly with the intensity of the environment of the mother’s home.
I am satisfied that [X] does enjoy and thrive in her father’s company and should spend substantial and significant time with him. Accordingly, orders should be made that provide for [X] to have a graduated increase of the time she spends in her father’s care that is age appropriate and reflective of [X]’s developmental needs.
I also believe it appropriate that [X] should commence spending holiday time with her father that gradually increases over time so that by the time she is in Grade One, she is spending equal holiday time with both her parents.
For holiday time, the orders that I intend to make do not accord with either of the proposals put forward by the parties in that the graduated increase in time that [X] will spend with her father will not take place as quickly as he is seeking, but will take place much more rapidly than that which is being sought by the mother.
The orders will be, as recommended by Mr O’Dwyer, very detailed and leave little room for doubt as to the court’s expectation as to how [X]’s time with her father will gradually increase.
In relation to the manner in which the parties are to communicate with each other, it is my intention to re-introduce a communication book and it will be made very clear to the father that the court expects him to utilise that book in an appropriate manner. The orders will also make provision for the use of technology such as email and SMS. Whilst the father is currently resistant of such technology, it is incumbent upon him to sensibly embrace it in order to be able to communicate with the mother about his daughter.
The orders are also going to make provision for the parties to seek mediation in the event they are unable to reach agreement between themselves in relation to the important milestones for [X], such as where [X] is to commence primary school.
There has been, and continues to be, extensive research conducted by social scientists on the impact of the children of separated parents where such parents remain in high conflict. That research universally makes reference to the long-term, ongoing negative impact on children who are the product of high-conflict parents. Both the parties in this matter are asked to think seriously about how they can shield [X] from their antipathy and what they can do individually to try and put in place behaviours that will enable them to be better parents for their daughter.
I certify that the preceding one-hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate: Sarah Hession
Date: 23 December 2009
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