Marsh and Marsh
[2012] FamCA 902
FAMILY COURT OF AUSTRALIA
| MARSH & MARSH | [2012] FamCA 902 |
| FAMILY LAW – CHILDREN – best interests of child – balance between pursuing an elite sport and a positive family relationship |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Marsh |
| RESPONDENT: | Mr Marsh |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 3464 | of | 2009 |
| DATE DELIVERED: | 31 October 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Fowler J |
| HEARING DATE: | 30-31 January 2012, 1-3 February 2012, 20-21 and 27-31 August 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richardson SC with him, Mr Batey for 30 January – 3 February 2012 and thereafter Ms Marsh in person |
| SOLICITOR FOR THE APPLICANT: | Meyer Partners Family Lawyers until the filing of a Notice of Ceasing to Act |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd SC with him, Mr Campton |
| SOLICITOR FOR THE RESPONDENT: | Champion Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Ward |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
All previous parenting orders are discharged.
The child, B, born … October 1999 (“the child”) live with the father as follows:
(a)in week 1 from after school Wednesday until before school Monday, commencing from the first Wednesday from the date of these Orders
(b)in week 2 from after school Wednesday until before school Friday
(c)half of each school holiday period when the child is in Australia with the child living with the father in the first half of each school holiday period in even-numbered years and the second half of each odd-numbered year
(d)any variation to the above or additional times as agreed between the parties in writing.
The child live with the mother at those times other than when the child is living with his father in accordance with Order 2 herein.
In the event that the child is in Australia for Christmas and he is not otherwise spending time with the father, the child shall spend time with the father from 9.00 am Christmas Eve to 12 noon Christmas Day in even-numbered years and from 12 noon Christmas Day to 5.00 pm Boxing Day in odd-numbered years.
On the child’s birthday, where the child does not live with the father, the child is to spend time with the father for a period of four hours on a school day and for a period of six hours on a non-school day and, failing other agreement, from 3.00 pm to 7.00 pm on a school day and 9.00 am to 3.00 pm on a non-school day, conversely the same for the mother.
The child is to spend time with the father on the father’s birthday at times to be agreed between the parties where the child does not live with the father on that day and, failing agreement from 3.00 pm to 7.00 pm on a school day and
9.00 am to 6.00 pm on a non-school day.
The child is to spend time with the mother on the mother’s birthday at times to be agreed between the parties where the child does not live with the mother on that day and, failing agreement from 3.00 pm until 7.00 pm on a school day and 9.00 am to 6.00 pm on a non-school day.
The child is to live with the mother for the weekend that includes Mother’s Day in each year in the event that it is not a weekend that the child otherwise lives with the mother pursuant to these Orders.
The child is to live with the father for the weekend that includes Father’s Day in each year in the event that it is not a weekend that the child otherwise lives with the father pursuant to these Orders.
Within 14 days the father is to contact the Adolescent Family Therapy and Mediation Service (RAPS) provided by Relationships Australia to make an appointment for the child and himself to attend upon a Counsellor and to continue to attend appointments as recommended by such Counsellor and the mother to attend any appointment if requested by RAPS.
If either parent wishes for the child to travel overseas (for sporting commitments or holiday, but not permanent relocation) they will provide not less than 28 days notice of their travel proposal to the other parent advising of the following:
(a)the proposed date and times of departure from Australia and return to Australia
(b) the itinerary while overseas
(c) details of any competitions or training schedules (if applicable)
(d)details of proposed arrangements for the child to spend time with the other parent whilst the child is overseas.
If the parties are unable to agree on a proposal for the child to travel overseas, the parties are to attend mediation with Relationships Australia and discuss the disputed issue and in the event no agreement is reached in the mediation process the father has sole parental responsibility for decisions relating to the child’s overseas travel for sporting commitments or holidays.
If either parent wishes to change the school the child attends they are to give the other parent 28 days notice providing the following information:
(a) reason for requesting change
(b)details of the proposed new school including whether the child has a position available at the new school and contact details for the enrolment officer at the new school.
If the parents are unable to agree on the proposal for the child to change schools the parties are to attend mediation with Relationships Australia and discuss the disputed issue and in the event there is no agreement reached in the mediation process the father has sole parental responsibility for decisions relating to the child’s education.
The parents have equal shared parental responsibility for all remaining matters other than in relation to the child’s overseas travel for sporting commitments or holidays as outlined in Order 11 and education as outlined in Order 13.
Neither parent shall denigrate the other parent to the child or allow the child to remain in the presence of any person denigrating the other parent.
Each of the father and the mother is to notify the other parent as soon as is practicable in the case of injury to or illness of the child other than normal childhood ailments.
The parties do all acts and all things and sign all authorities necessary for each of the parties to each receive a copy of all school reports, notices, circulars and other correspondence in relation to the child’s schooling, sport or behavioural matters.
Each party give the other 14 days notice of any intention to change their residential address, landline and mobile telephone and give at the time of such notice particulars of the proposed change.
Whilst the child is in the care of the father the mother is not to make any contact with the father by telephone, email or otherwise.
Whilst the child is in the care of the father the mother is not to attend any occasion upon which the child is engaged in sport or other recreation without the consent of the father having previously been given in writing.
The mother is not to propose to the child any trip overseas for any purpose without having first procured the consent of the father to such trip.
The mother is not to take the child to any therapist or counsellor without the father’s consent first being had and obtained in writing.
The mother is not except in the case of emergency to take the child to any medical practitioner or health care professional without the consent of the father first being had and obtained in writing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marsh and Marsh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3464 of 2009
| Ms Marsh |
Applicant
And
| Mr Marsh |
Respondent
And
| Legal Aid NSW |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Before the Court are proceedings between parents with respect to the parenting of the child of their marriage, B (“the child”), born on … October 1999 and now 12 years of age.
Prior to the separation of the parents the child had a good relationship with his mother and father but was probably primarily attached to his mother and had also a good relationship with his half-sister C, the mother’s child by another relationship.
B is a child who competes competitively in a winter sport. He has competed internationally in New Zealand and the United States of America (“USA”) since approximately 2008. He has had aspirations to be a professional and to compete at international events such as the X Games,
US Nationals, World Series and World Cup by the age of 15, and to compete in the Winter Olympics.
There is no doubt that the child appears to be a skilled and successful in his sport.
However, ultimately this case is not about sport. It is about a child who is the child of parents who love him and whose relationship with each other has become venomous and toxic. This case is about what arrangements for the parenting of this child will best serve his welfare and permit him to achieve his maximum potential and allow the child to grow up being supported by each of his parents in a positive, albeit perhaps different way, in circumstances where he is safe from the harm which would be caused by the continuing animosity of the parents or at the worst extreme the loss of a safe relationship with a parent.
It is a case in which the child presented to the independent expert as a child who had a dysfunctional relationship with his father and an enmeshed symbiotic relationship with his mother.
Dr D was appointed as the Court expert. His report contained a number of warnings about the future of the child having regard to the child’s different relationship with the father and the mother; the impact of various matters arising out of the current state of his parenting. The personalities and performance of the parents were producing negative responses in the child and exposing him to the reality of present problems and harm and the possibility of a future beset with problems and the danger of continuing harm.
Dr D’s assessment was delivered in September 2011 and the matter was heard over a number of days in two tranches with the hearing concluding over five days in August 2012.
In the period between the assessment and the end of the hearing there had been a refusal by the Court to make an order permitting the child to go overseas for his sport except in circumstances where each party consented to that course.
Whether as a result partially of that, partially because of the father’s patient and quiet persistence with his relationship with the child, and perhaps partially because the mother must have seen the writing on the wall after reading the report and accepted the need for change, or for some other reason, the relationship between the child and his father which had been fraught began to improve.
The father in this period made it clear to the child that his consent to him going overseas was dependent on an improvement in the relationship between the child and him, the child and his half-sister, and the child and his school teachers and others. It was further dependent upon the child demonstrating achievement in schooling to the point where the father could be satisfied that he was doing his best. The father set boundaries and goals and the child was informed of the consequences favourable or otherwise if they were crossed or not achieved.
The parents were able to agree on the enrolment of the child at a secondary private school. The child’s performance at school improved. His teachers made favourable reports on his participation and behaviour.
More importantly perhaps, the relationship between the child and his father improved and whilst reported as not perfect, compared to the low base from which it had come was indeed significantly improved. The child’s relationship with his half-sister also was re-established as a positive relationship.
The father seeks orders which would give him sole parental responsibility and points to the failure of the joint parenting relationship between himself and the mother and their lack of communication. He points to the singleness of purpose of the mother demonstrated by an exhibited obsessiveness with the child succeeding in his sport at almost any cost, as being supportive of such an order.
He says that the Court should come to the conclusion that the changes which the mother points to as occurring during the last approximately twelve months, and her assertions that she is able to agree and seeks mediation rather than conflict, is superficial and forensically motivated. Her fundamental character is such that there would be a risk of a return to prior times when she sought to exclude the father from the child’s life.
Indeed at least one example of the mother’s behaviour of relatively recent times when she must have known that there was a spotlight on her and her behaviour in these proceedings and when the child was in New Zealand provided some evidence of the mother reverting to such behaviour.
Her suggestion to the Court that the child should be involved in mediation attendant on shared parental responsibility was taken by the father as a continuing example of her desire to continue to immerse the child in conflict.
In these circumstances the Court has to search for a decision which will best suit the needs of this child to have a relationship with each of his parents but freed as much as possible from continuing litigation and conflict.
Background Facts
In 1961 the father was born. He is now 50 years of age.
In 1962 the mother was born. She is now 50 years of age.
The mother left school in Year 12 without completing her Higher School Certificate and commenced part-time work as a waitress, and subsequently full-time work in a professional capacity at F Pty Ltd.
In 1984 the mother was in a relationship with Mr E. The relationship ended during the mother’s pregnancy with her daughter C
In 1984, the mother’s daughter C was born. She is now 27 years of age.
In 1997, the parties married. C was 12 years of age at the time.
In October 1999, the child was born.
In approximately 2001 or 2002 the family went on a holiday to G Town. The father hired a private instructor for the child which was the beginning of his love for snow and snow activities. The child was around 2 or 3 years of age.
In 2005 the child commenced Kindergarten at H School. The parents agreed that the child would enter into skiing competitions at the school.
In 2006 the child commenced first grade at H School. In term 4 of 2006 the child was home schooled by the mother. The mother was concerned about mould at the school environment and the child’s health.
The father asserts that whilst the child did have some adverse reaction to mould it was overstated by the mother, and, that as a result of a subsequent diagnosis of chronic tonsillitis it is now concluded that much of the child’s symptoms were related to that disease.
Whilst perhaps the product of post hoc reasoning the fact appears to be that those symptoms were not as evident after the removal of the child’s tonsils.
In 2007 the parties bought a house in G Town so that the child could pursue his sport through the Australian winter season. It is the mother’s evidence that around this time the child expressed his wish to concentrate on winter sports.
In 2007 the child commenced second grade at J School.
In 2008 the child commenced third grade at J School. He was subsequently withdrawn from J School due to the mother’s concern with mould in the school environment and was enrolled at K School.
In 2008 the father entered the child into the New Zealand national championships. The child won in his chosen sport. The child also competed in the Australian National Championships.
From July to September 2008, the mother and the child lived in G Town.
In October 2008, the family moved to their property at K Town.
In 2009 the child commenced fourth grade at K Town School.
It is the mother’s evidence that on or before 25 May 2009 the parties separated. According to the father they separated on 10 June 2009.
On 10 June 2009 there was an incident between the parties in the family home involving a dispute as to whether or not the parties spat at each other. L Town Police attended the home and asked the father to make a statement. The father advised the police about the mother’s application for an Apprehended Violence Order (“AVO”) to exclude him from the K Town property and they accompanied him to the house to collect some belongings.
On 10 June 2009, an interim AVO was made against the father.
On 12 June 2009, the mother filed her Initiating Application at the Family Court of Australia.
On 15 June 2009, the father’s legal representatives wrote to the mother’s legal representatives requesting the mother’s proposal for the child to spend time with the father.
On 18 June 2009, the mother’s legal representatives wrote a letter to the father’s legal representatives proposing telephone calls with the child, alleging the father had rejected an offer to have dinner with the child and otherwise asking the father to provide a proposal.
On 25 June 2009, the mother’s legal representatives proposed a one-off time on 27 June 2009 for a few hours and then alternate weekends commencing 10 July 2009 after the child’s training on Friday until after the child’s training on Sunday in M Town.
On 26 June 2009, the father’s legal representatives replied that they were not in a position to reply to the overall proposal but accepted the proposal for 27 June 2009. They asked that the mother,
properly prepares [the child] to spend time with his father, as is her obligation; that is, that [the child] is prepared emotionally and is in a positive frame of mind about spending time with his father…Your client is not to remain in or near the areas so it appears to [the child] there is a choice for him to make between his mother and father, nor do anything designed or intended to set up this first occasion to fail.
On 27 June 2009, the child spent the first time with the father since the parties separated. He was due to spend time with the father from 2.30 pm to 8.00 pm. It is the father’s evidence that the mother delivered the child to training in company with two of the child’s school friends N and O. The mother remained for two hours of training. Her reasoning for doing so was because she needed to supervise N and O. The father did not go near the child whilst he was with the mother because of the AVO. The child allegedly told the father to “fuck off”. The mother left with N and O at the end of trampoline training and the child left with the father and C to go to the movies.
On 30 June 2009, the AVO was listed for mention. The mother sought an extension of the AVO to provide that the father must not reside at the premises at which the protected person, being the mother, may reside from time to time.
From July to September 2009, the mother and the child lived in G Town.
On 9 July 2009, the father’s legal representatives wrote a letter to the mother’s legal representatives explaining that due to the AVO the father was unable to spend time with the child in G Town unless the mother agreed to remove herself from the village and asked for confirmation that the mother would absent herself from the village so that the father could see the child each alternate weekend in G Town.
On 13 July 2009, the mother’s legal representatives wrote a letter to the father’s legal representatives regarding the alleged agreement that would allow the father to see the child for a full day on the child’s day off at G Town.
On 15 July 2009, the father’s legal representatives wrote a letter advising that the contents of the letter of 13 July 2009 were factually incorrect and that there was nothing to which the father could respond.
On 18 August 2009, the application for a final AVO was dismissed.
On 28 August 2009, Orders were made by consent providing that:
a)until 18 September 2009 the child was to live with the mother save for each Monday and Thursday when he was to live with the father from 8.00 am to 8.00 pm, with changeover being in either P Town or G Town
b)the mother was permitted to leave Australia with the child from 18 September 2009 until 9 October 2009 to travel to New Zealand
c)whilst in New Zealand, the child was to live with the father from 8.00 am to 8.00 pm on 3, 4 and 5 October
d)Dr Q was appointed to prepare a report
e)parenting applications, including the mother’s application to take the child to the United States of America (“USA”) from 1 December 2009, were adjourned to 6 November 2009
f)The child to live with the father each alternate weekend, from 8.00 am to 8.00pm Saturday and Sunday, from 10 October 2009, and from 15 October 2009 until 6 November 2009 each alternate Thursday from after school until 10.00 pm.
On 31 August 2009, the child saw the father in accordance with the orders.
On 3 September 2009, the child saw the father in accordance with the orders.
On 7 September 2009, the child was due to see the father in accordance with the orders. The parties instead agreed to have the contact take place in Sydney from 9.00 am and the father ultimately collected the child from the mother in the city.
On 8 September 2009, the father’s legal representatives wrote a letter to the mother’s legal representatives stating:
…next occasion on which the father is due to spend time with [the child] is on Thursday 10 September 2009. The father will be at the nominated place at [G Town] at 8.00 am. Please ensure [the child] is made available to his father.
On 9 September 2009, the mother’s legal representatives wrote a letter to the father’s legal representatives proposing that the child’s time with the father take place in Sydney, and alleging that the father had already agreed to this proposed change. The Court does not find that there was any such agreement.
At the time the letter was received the father was already on his way to G Town. The father’s legal representatives wrote a letter to the mother’s legal representatives. At this time they were unable to get in contact with the father and advise him of the contents of the mother’s letter.
On 10 September 2009, the father was due to spend time with the child in G Town. The mother delivered the child to the father in G Town in his pyjamas, having driven through the night from Sydney to arrive on time. The child spent the day with the father in G Town and according to the father the mother arrived two hours early to collect the child. After this incident the father’s legal representative wrote a letter to the mother’s legal representatives advising that the father requires strict compliance unless variations are confirmed in writing.
From 18 September 2009 until 9 October 2009, the child was in New Zealand competing.
On 2 October 2009, the father and C travelled to New Zealand to spend time with the child in accordance with the orders. Contact was meant to commence at 8.00 am and instead commenced at approximately 11.00 am.
On 3 October 2009, the child was due to see the father at 8.00 am. The child was not available on time for a pre-arranged activity, being a helicopter ride, with the father and C. The father did not see the child during the day but was able to have dinner with him that night.
From 10 to 11 October 2009, the child was due to spend time with the father over the weekend upon the child’s return to Australia. On the Friday prior to this contact, being 9 October 2009, there were numerous calls and text messages between the parties regarding the child being ill and no clear discussion about whether or not the child needed to travel to Sydney for time with his father. Ultimately the child was in Sydney on the Saturday but did not see the father.
On 4 November 2009, orders were made by consent of the parents that:
a)the child live with the mother save for times when living with the father
b)the child live with the father from noon 7 November 2009 until noon 24 December 2009
c)the father to ensure the child is available to receive telephone calls from the mother at 8.00 pm every second day, and the same to apply to the mother when the child is living with her
d)the mother be permitted to remove the child from Australia on such date as she may nominate after 24 December 2009 until 14 February 2010
e)during the time the child is away if the father is in the same region he is to have reasonable time with the child during the day, not overnight unless agreed, and subject to coaching and educational commitments
f)for the period from 14 February 2010 until the hearing of interim applications, the child is due to spend time with the father from after school Friday until noon on Sunday each alternate weekend.
On 7 November 2009, the child commenced time with the father, leaving behind at home his orthodontic plate and laptop. A dispute arose between the mother and father as to the arrangement for the plate and laptop to be delivered to the child. It is the father’s evidence that during this time the child was taping conversations with the father on his phone, and was also running through the father’s house throwing things around.
On 13 November 2009, the father took the child to training at R Suburb. The mother was present at the training. The mother also attended the child’s orthodontic appointment during the time that he was in the father’s care.
On 18 November 2009, the father took the child to training at R Suburb. The mother attended at the training. The father asserts that the child said to him, “Jesus you’re stupid, why can’t you even do that right”. In response to this the father decided to take the child home early and said,
If you don’t get in the car right now you will not be coming out tomorrow and if you ever speak to me like that again I will never take you out here again, you will miss your comp on the weekend if you give me any more attitude.
On 27 November 2009, the father took the child to training at Suburb R. The mother attended with S, one of the child’s friends. The father’s evidence is that he observed that the child was calmer and his behaviour was much better on the days when he did not see the mother or talk to her on the telephone.
On 21 December 2009, the father’s legal representatives wrote a letter to the mother’s legal representatives proposing that the father spend time with the child in the USA from 10.00 am to 6.00 pm from 11 to 13 January 2010, assuming the child was not competing on those days, otherwise asking what arrangements the mother would put in place.
On 23 December 2009, the mother’s legal representatives replied to the letter indicating that the mother could not predict the competition schedule but that it was unlikely that the child could be available all day on each of the days proposed.
From 24 December 2009 to 14 February 2010, the child was in the USA for the US National competition.
On 8 January 2010, the mother proposed that the father spend time with the child on 8 and 9 January 2010 in the afternoon, and on 22 and 23 January 2010 in the afternoon. The father did not travel to the USA to see the child at this time.
On 18 January 2010, the mother’s legal representatives wrote a letter to the father’s legal representatives with details of the child’s movements in the USA. The father did not travel to the USA at this time.
In 2010 there was a dispute between the parties as to agreement to enrol the child at H School or T School.
During 2010, the child attended fifth grade at U School.
On 26 February 2010, orders were made by consent for the parties to attend on Ms V for family therapy and to ensure that the child attends at such times as nominated by the family therapist. The orders also provided for the child to spend time with the father each alternate weekend from after school Friday until commencement of school on Monday, with the father to ensure that the child attends scheduled sporting and training commitments and the mother was restrained from attending such commitments when the child is in the father’s care.
On 3, 10 and 16 March 2010, the child attended on Ms V. After 16 March 2010, the child had no further family therapy.
On 22 March 2010, consent orders were made permitting the mother to take the child to the USA from 23 March 2010 until 19 April 2010, with the father’s time suspended whilst he is away but to resume on 30 April 2010.
From 23 March 2010 to 19 April 2010, the child was in the USA for Junior National competition.
On 22 April 2010, Ms V emailed the mother noting her understanding that the mother had cancelled all future appointments for the mother and the child. This is disputed by the mother.
On 27 April 2010, the mother sent a reply email to Ms V disputing that she had cancelled all future appointments, and indicating that she had cancelled one appointment only for the child and her.
On 29 April 2010, the mother alleges that the child was due to be taken to an appointment with Ms V by the father but did not attend. The father’s legal representatives replied that Ms V’s email said that the mother had cancelled both appointments on 22 April 2010 and 29 April 2010.
On 6 May 2010, the Independent Children’s Lawyer wrote a letter to the mother’s legal representatives recommending that the child should continue therapy with Ms V.
On 10 May 2010, the mother’s legal representatives wrote a letter to the Independent Children’s Lawyer saying that the mother did not cancel all future appointments and that the mother had a further appointment that week and would make a further appointment for the child at that time.
On 11 May 2010, the mother attended a further appointment with Ms V.
On 13 May 2010, Ms V sent an email to the parties advising that she and the mother had terminated their therapeutic relationship by mutual agreement and indicated that future appointments had been made for the child to attend.
On 18 May 2010, the mother’s legal representatives wrote to the parties stating that the mother believed the process had been tainted and no longer agreed to Ms V meeting with the child, and in the event that the Independent Children’s Lawyer says that the child needs counselling then neither the father nor mother should attend. It also stated that the parents could attend a separate counsellor to try and resolve the issues in dispute.
On 25 June 2010, consent orders were made which permitted the mother to take the child to New Zealand from 30 June 2010 to 19 July 2010 and then from 30 July 2010 to 2 August 2010.
From 30 June 2010 to 19 July 2010, the child was in New Zealand for training and to compete in the Junior Nationals competition.
On 23 July 2010, the child ran away from school.
From 30 July 2010 to 2 August 2010, the child was in New Zealand for training and to compete in the Junior Nationals.
On 3 August 2010, the father’s legal representatives wrote a letter requesting family therapy for the child and C.
On 12 August 2010, the father attended the child’s school and met with the principal Ms W, and teachers Ms X and Ms Y. The father asserts that the teachers supported his view that the child should attend school full-time, and the teachers informed him that the child’s long absences from school caused him to fall behind and that for this reason he was placed in a support group.
On 13 August 2010, the father attended a second meeting with Ms X and Ms Y. The child was described by the teachers as very BB but required a support program due to his extended absences.
In May 2011, it became apparent to the mother and father that the child was running away from school. The father arranged a meeting with Ms W who suggested that the child spend lunchtime doing his schoolwork outside her office.
On 8 June 2011, Orders were made allowing the child to travel with the mother to New Zealand from 1 July 2011 to 5 October 2011.
From 3 to 8 October 2011 the father spent time with the child in New Zealand pursuant to consent orders. The father asserts that the child was surly and unresponsive and did not allow him to take photos of him. He asserts that the child said to him, “everything is shit with you”.
On 4 November 2011, the child had a neck spasm and was taken to Z Hospital. The father stayed at the hospital with the child. The father asserts that the child told the doctors, “please don’t make me go home with dad”.
On 25 November 2011, the parties reached an agreement for the child to attend counselling with Ms AA.
On 2 December 2011, the parties entered into consent orders permitting the child to travel to the USA in December with the father.
On 6 December 2011, the father and the child travelled to the USA and the child participated in training with Mr BB.
On 18 December 2011, the child injured his elbow while training with Mr BB. Due to the child’s injuries the father decided to end the holiday early and they returned to Australia on 19 December 2011.
On 29 December 2011, the child spent time with the father.
On 5 January 2012, the father arrived to collect the child to spend time between 3.30 pm and 8.00 pm. The child would not go with the father and the mother refused to get involved to support compliance with the arrangement. The Court finds it is more probable than not that the mother supporting compliance with orders was more the exception than the rule.
From 30 to 31 January 2012 and 1 to 3 February 2012, the matter was before the Court for the final hearing. The matter did not finish in the allocated time and was adjourned part-heard until August 2012.
It is the father’s evidence that through his solicitors he tried to arrange to take the child to the USA from 31 March 2012 to 5 April 2012 to compete in the US Nationals. The reply from the mother’s solicitors declined to allow the father to take the child to the USA as it was her belief that the child had no interest in competing in the event.
Agreement was reached between the father and mother that the child would travel to New Zealand for the June/July 2012 school holidays.
On 20 June 2012, Consent Orders were signed by the father and mother allowing the child to remain in New Zealand until 29 July 2012, meaning he would miss nine days of school.
Pursuant to the Consent Orders, the father travelled to New Zealand to spend time with the child for four days between 28 June 2012 and 2 July 2012. The father and the child travelled to New Zealand together and participated in activities other than sports.
During the trip to New Zealand, the child required emergency surgery for a twisted testicle. The father’s evidence is that he transferred money to the mother for medical expenses, upgraded their flight to business class and arranged transfers to and from the airport in New Zealand and Sydney.
On 25 July 2012, to further assist the mother and to enable both her and the child to return to Australia without being encumbered with baggage, the father proposed to and did travel to New Zealand to collect the child’s sporting equipment and his baggage together with the mother’s baggage.
On arriving at the mother’s house in CC Town, the father asked to see the child which the mother refused stating, “he doesn’t want to see you” three times. The father did not want to argue in the hearing of the child and left the house. A few minutes later the mother called the father and told him that the child would see him. The father returned to see the child.
It is the father’s evidence that the mother said to him in the child’s presence, “Okay, he wants to know what is happening in Court”. The father states that he refused to discuss the Court proceedings with the child and decided to leave the house and return to DD Town. The Court finds this desire to discuss these proceedings with or in the presence of the child a failure in proper parenting on the part of the mother.
On 1 August 2012, the father returned the baggage and equipment from New Zealand to the mother. The father and mother had also previously arranged for the father to spend some time with the child in his car out the front of the house. The mother did not agree to the father taking the child out for a milkshake. Again the Court finds this behaviour unfortunate to say the least.
The Court finds the mother’s behaviour quite extraordinary given that there was a part-heard case and that she knew that what she did would be the subject of evidence, or alternatively revealing that she has no insight into what is required for co-operative parenting after separation.
The Issues to be Determined
The Independent Children’s Lawyer proposed that the following are the issues to be considered in these proceedings:
a)the evidence suggests that the child has the ability to compete in his sport at an elite level
b)children who pursue sport at an elite (international) level typically do not lead “regular” lives even within functioning families. Such children often have disrupted living and schooling arrangements so as to accommodate training and competition schedules. This necessarily affects relationships with family and friends
c)within functioning families parents make personal judgments about the extent to which children should pursue elite competition at the expense of a so-called “regular” or “other” life
d)The child’s family is not a well functioning family. Accordingly the Court is asked to supplant parental judgment with judicial judgment and make decisions that will ultimately determine the extent to which the child should pursue sport at an elite level
e)at its core, however this is not a case about sport. This is a case about two relatively isolated adults with starkly conflicting approaches to parenting and a child that has been drawn into the fray
f)it follows that issues relating to the child’s sporting commitments illustrate, but do not supersede, the matters that the Court must consider in accordance with the Family Law Act
g)the Court will need to determine the nature of the relationship between the child and each of his parents prior to separation and the extent to which their separation has contributed to the poor relationship that presently exists between father and son. Further, the Court will need to consider the possibility that the mother has used the child’s extended absences to frustrate that relationship, and that the father’s opposition to the child competing other than in school holidays has re-enforced the child’s view that his father is not supportive of him
h)The child’s day-to-day life is unusual in many respects and for many reasons. Whilst determining what has contributed to that situation the Court will also need to consider the extent to which, from the child’s perspective, his “regular” life and routine has come to involve:
i)a large amount of international travel and extended periods away from Australia
ii)a self-belief that he has the ability to compete at an elite level
iii)a peer group who similarly “follow the snow” in the pursuit of elite competition
iv)a training and competition regime that results in the child spending a large amount of time on the snow, removed from either parent.
i)the child’s wishes will not determine the orders that the Court makes, but must be relevant to a consideration of how he will respond to the proposals put forward by his parents or other orders contemplated by the Court.
The trial commenced in January and was adjourned part-heard to August. During this period it appears that the issues between the parties have resolved to a small extent. The father indicates that he is not opposed to the child competing in some sporting events and undertaking some overseas travel, however he qualifies this by saying that the child needs to demonstrate that he is performing his best at school and behaving appropriately towards the mother and the father and his half-sister.
The Court accepts that the father has a sympathetic view of the child enjoying his sport even at an elite level but also finds that he is prepared to balance that in a way which will advantage the child educationally, socially and behaviourally. The evidence suggests that the father is prepared and capable of setting reasonable boundaries and encouraging the child to not stray beyond them.
The child, it appears, in the interim period since the hearing started, has improved his behaviour to his father and his sister. He has developed educationally and socially. His educational effort has improved. He has not run away from school.
The reason for that change is not easy to find but, given the change in the power balance between the mother and the father with the father’s consent being required for overseas travel, it was perhaps that the child was now aware that the father has the power to enforce the boundaries he set.
Perhaps he came to an understanding that his father did not abandon him as probably he had previously concluded by reason of the actions of the mother preventing the child and the father being together.
Perhaps he came to the conclusion that the father was indeed concerned and supportive of him or perhaps he just wearied of the conflict between the parents and the apparent requirement to take sides in it.
Perhaps the changes in his school and the fact that he has seen his father keep his word that good conduct will be rewarded might have had a positive effect on him.
For whatever reason, the relationship between the child and his parents, his sister and his teachers has improved since the hearing started.
The Court finds that much of this improvement is more probably than not due to the patience and perseverance of the father in circumstances of extreme provocation and the consistency with which he has behaved toward his son in setting reasonable rules, communicating them, standing by them and appropriately rewarding right behaviour and compliance with them.
Credit
The Mother
The mother’s evidence put into sharp relief her credit.
When giving her evidence there were instances where the mother would provide definitive answers to questions then almost immediately retreat from her answers and state “I don’t know”, “I can’t be certain” and “I don’t recall”.
The mother was not always responsive to questions, at times going on tangents and talking about other things rather than answering the question. She also provided answers to some questions reluctantly and avoided questions.
She admitted that she had lied in several of the voicemail messages that she had left on the father’s phone, in particular about telling third parties about the family court proceedings and about the father’s alleged use of prostitutes.
The mother, by suppressing the truth about her purchasing a property in New Zealand, failed to act honestly.
The mother, by failing to disclose that she had set up a company called EE Pty Ltd, committed yet another act of dishonesty.
And, again, the mother lied by not disclosing the truth of ownership of the shares in the company.
The mother admitted that she lied on her Form 13 Financial Statement.
The mother also lied to the Court when bringing applications for money for expenses for the child.
The mother’s capacity for supressio veri is well developed and the Court finds her evidence unreliable.
The Father
The father gave studied answers with some air of a teaching style however they were in the main detailed and credible. He quickly said he did not know when he did not. He did not appear to guess answers. He conceded matters which were against his interest and readily made appropriate concessions.
He impressed as an honest witness and a witness upon whose evidence reliance could be placed. In matters where there is a contest between the father’s evidence and that of the mother and generally, the father’s evidence is preferred.
Mr BB
Mr BB, a coach for the child, presented as a witness with attitude, sarcasm and arrogance. He was generally uncooperative when under cross-examination by the father’s counsel and was non-responsive at times.
Mr BB tended to give speeches about the child’s love of his sport and his skills rather than answering questions directly.
When asked about whether he had any conversations with the mother during the first week of the hearing, Mr BB said he could not recall and avoided answering the question giving as a reason for his lack of memory his busy schedule and travel.
Mr BB also declined to answer any questions about his personal financial affairs, which went to his non-compliance with a subpoena requiring him to produce his last two years income tax returns and receipts issued to the mother for the provision of his coaching services to the child.
Whilst, however, his attitude and evidence did not in part impress, he probably was able to make some observations on the child’s ability in his sport. He appears to be a successful coach, although clearly he has a financial interest in maintaining pupils and it is inferred derived financial benefit from his relationship with the child and the mother.
Ms FF and Ms GG
It does not appear to the Court that the cross-examination of either of these witnesses leads to the conclusion that they were not telling the truth as they saw it.
The cross-examination was largely limited to their involvement in giving and/or transferring money for the mother to purchase, without notice to the father or the Court, a property in CC Town, New Zealand and each of them were unwittingly involved in the deception perpetrated by the mother.
Mr HH
Mr HH, a process server for Mercantile Agent who had given affidavit evidence of his attempts to serve the mother with documents, was required for cross-examination by the mother.
Through his evidence the mother sought to convey to the Court that it was difficult for people and particularly him to alert her to their attendance at her house in K Town, it being suggested that she avoided service of court processes.
He impressed as an honest witness.
The orders sought by each party
In his case outline document filed at the commencement of the hearing in January 2012, the father sought sole parental responsibility of the child; that the child live with the father; that the mother be restrained from initiating contact with the child for a period of twelve months, and that the mother be restrained for this period from attending the father’s residence, the child’s school and other venues that the child is likely to visit.
Because of the history of behaviour of the mother in interrupting time with the child when he is alone with the father, the Court intends to impose some limitations on the mother whilst the child is in the father’s care; the evidence not, in the Court’s view, currently sustaining an order that the mother have no contact with the child for the period referred to. It is proposed likewise to restrain the mother from offering the child any overseas holiday or sporting event without the prior written consent of the father who shall have the sole responsibility for consenting to such travel. The mother, once again, has in the past asserted agreements existed where the Court found that none did. In the circumstances, it seems prudent to require any consent required of the father to be in writing.
Also during the course of submissions the mother made reference to taking the child to a psychiatrist to learn how to deal with people who have Aspergers Syndrome which it is asserted the father has.
The father submitted he had no knowledge of this referral and asked for an order restraining the mother from taking the child to a medical practitioner other than in the case of an emergency. The Court finds that there has been sufficient involvement of this child in the open conflict between the mother and the father and the Court takes the view that there should be a clear responsibility resting with the father to direct health care for the child except in the case of emergency. The father has a history of cooperating in relation to the child’s health both physically and emotionally and the Court believes that he would fulfil his obligation in this regard responsibly.
At the recommencement of the hearing in August 2012, the mother provided to the Court an updated minute of orders. In summary, the mother sought that the child live with the mother and father on a fortnightly rotation being that the child live with the mother from Monday of the first week to Thursday of the second week, and with the father from 3.30 pm on Thursday of the second week to Monday at 8.30 am or the commencement of school. She also seeks that the child spend half of each school holiday with each of the parents.
The mother also sought that the child be allowed to attend full-time training and continue education overseas at the end of Term 4 until the commencement of Term 2 in the following year, and at the end of Term 2 until the commencement of Term 4. The mother’s proposal is that the child is to live with the mother during this period and that the father shall spend one week per month with the child during the period spent overseas.
The mother seeks that the father pay all costs associated with overseas travel and competition, education and school activities and that he pay the mother $2,000 per week in child maintenance.
It is also sought by the mother that both parents undertake counselling with Ms AA weekly.
On the second last day of the trial, the Independent Children’s Lawyer provided to the Court their proposed minute of order. In summary the orders sought are as follows:
(1)That all previous parenting orders are discharged.
(2)That the child live with the father as follows:
(a)in week 1 from after school Wednesday until before school Monday, commencing from the first Wednesday from the date of these Orders
(b)in week 2 from after school Thursday until before school Friday
(c)half of each school holiday period when the child is in Australia with the child living with the father in the first half of each school holiday period in even-numbered years and the second half each odd-numbered year
(d)any variation to the above or additional times as agreed between the parties in writing.
(3)That the child live with the mother at those times other than when the child is living with the father.
(4)That both parents are to contact Relationships Australia and do all things to attend upon a Counsellor for family dispute mediation.
(5)That the father is to contact the Adolescent Family Therapy and Mediation Service (RAPS) provided by Relationships Australia to make an appointment for himself and the child to attend upon a Counsellor for as long as recommended by the Counsellor, and the mother to attend any appointment if requested by RAPS.
(6)That either parent provide the other parent with not less than 28 days notice of any proposal for overseas travel.
(7)The parties are to attend mediation with Relationships Australia if they are unable to agree on a proposal for the child to travel overseas. In the event no agreement is reached at mediation the father has sole parental responsibility for decisions relating to the child’s overseas travel for sporting commitments or holidays.
(8)If either parent wishes to change the school the child attends they are to give the other parent 28 days notice of such proposal and provide reasons for the change and details of the proposed new school.
(9)If the parents are unable to agree on the proposal the parents are to attend mediation with Relationships Australia. In the event there is no agreement reached in mediation the father has sole parental responsibility for decisions relating to the child’s education.
(10)The parents have equal shared parental responsibility for all remaining matters save for the limitation on health issues and other than in relation to overseas travel for sporting commitments or holidays as outlined in Order 7 and education outlined in Order 9.
(11)That both parents pay the sum of $15,139 to Legal Aid being the Independent Children’s Lawyers costs.
(12)That each party pay the sum of $935 to Dr D for additional reading and court attendance.
Notation:
Each party intends to support the child in pursuit of sporting commitments on the basis that the child’s education and personal relationships with his family are not unduly affected. Other considerations may arise as the child matures and progresses through high school.
In relation to Order 4 of the Independent Children’s Lawyer’s minute, the father pointed out that there had only been pyrrhic success at mediation with such agreement as was reached being breached by the mother. He did not believe that it would serve a general purpose at this time.
The Court does not intend to make this order because it does not, having regard to the relationship presently between the father and the mother, believe that it is likely to be productive of other than the expenditure of time and money.
It is hoped that as time goes by and the issues between the parties resolve, it being noted that there are remaining financial issues between them, that such engagement might be productive.
The Court has sufficient confidence in the father’s ability to recognise when that might be that it does not propose to make any order for such family dispute mediation at this time. It will make an order for mediation of issues related to the child as are particularised in its orders.
The counselling proposed in Order 5 will be directed at the relationship between the child and his father. The involvement of the mother will only be if professionals have some confidence that a positive outcome or useful purpose might evolve or be served by such involvement.
In addition to Order 9 proposed by the Independent Children’s Lawyer, the Court additionally proposes that the father shall have the sole parental responsibility for the determination of non-urgent health matters for the child.
The Evidence
The mother and the father gave evidence by affidavit and orally and each was cross-examined on their affidavits.
The independent expert gave evidence comprised in written reports to the Court and was cross-examined on his reports. His evidence is detailed in the discussion below under the relevant headings of s 60CC.
The Mother’s Evidence
The general theme of the mother’s evidence was that the father was not very involved in the child’s activities prior to separation. She asserts that she was the primary carer and that only on occasion did the father feed the child, take him or pick him up from school or take him to his activities. She also asserts that the father did not assist with the child’s reading or homework.
The mother asserts that the father would always be involved in the decision making with regard to the activities the child would be enrolled in. The father denies this. She states that he would usually attend the first lesson and then not attend after that. She also states that he paid for all activities the child has ever been involved in. She asserts the father did not object to paying for the activities, nor did he raise any objections about the number of activities the child was involved in. The mother also denies that the father ever said that the child was enrolled in too many activities and claims that the first time she heard of such complaints was in his affidavit evidence.
The father asserts that the mother has told the child that his education and university are not important and that he can make more money from competing in his sport. The mother denies that she said this and denies that this is her belief; she asserts that she believes education is important.
The mother denies that she has made comments to the child that education is not important and to follow his sporting dreams instead. The mother believes that the child can achieve both his educational milestones and his sporting goals and that this can be done no matter where he is living at the time, whether it be in Australia or overseas.
The mother asserts that she has rarely seen the father and child be affectionate towards each other, and has not seen the father hug the child.
The evidence before the Court was that during primary school the child had attended six different schools, and then commenced at a new school for high school. The mother did not agree that the different schools and schooling arrangements had a cumulative effect on the child’s academic ability.
The mother disagreed that the teachers at K Town School, who placed the child in a support group for literacy and numeracy, were better placed than her to determine the level of support that the child needed in 2010. The mother attended the school in May 2010 and told two of the teachers that she thought the child’s placement in the support classes was inappropriate.
The mother disagreed that the level of travel that the child was undertaking and the lack of stable school arrangements could have contributed to the school’s assessment that the child needed some support.
The mother admitted that she had to organise her solicitors to raise matters with school on one occasion. She denied that she finds it difficult to talk to the child’s schools about his school arrangements and denied that she finds it difficult to liaise with the schools in a way that is calm and measured. The Court does not accept that this is so.
It became evident in the mother’s cross-examination by the Independent Children’s Lawyer that in fact the mother communicated in particular with K Town School through her solicitors extensively. Such issues raised in the letters were the child’s mould allergy, attendance at school, distance education, and the child running away from school. Despite the numerous letters, the mother did not concede that this demonstrated a complete breakdown in her ability to communicate with the school. Exhibit 18 is a bundle of correspondence and minutes in relation to K Town School.
The Father’s Evidence
The general theme of the father’s evidence was that he would not be opposed to the child competing and travelling overseas, so long as his performance at school was acceptable, and his relationship and attitude towards him and his half-sister C was also acceptable. He stated that the child does not have to be at the top of his class in all subjects but that he would have to satisfy the father that he was trying his best and behaving appropriately. He stated that so long as he was doing the above then he would use his discretion in allowing the child to pursue his sport and travel overseas. It is the father’s position that these things have to be determined on their merits and on a case-by-case basis rather than having strict Court orders.
The father gave evidence that there are health factors which need to be considered also when deciding on whether to allow the child to travel for competition. His evidence was that he had not made any plans at that stage to allow the child to travel to New Zealand before the season ended. He stated that the child had recently had an operation on his testicles and also injured his elbow and these would be factors that would influence his decision on allowing the child to participate in his sport.
The father stated that he is supportive of the child participating in competitions and that he would support him if he decided he just wanted to train and not compete.
The father’s primary position has always been that the child live with him. He accepts that this would be a big upheaval for him as he has always lived with the mother, but it was his view that the child has been drawn into the dispute and forced to take the mother’s side.
The father conceded that the child’s behaviour would be difficult if the Court makes orders that the father is seeking. He stated that he has experienced a wide gambit of behaviour with the child being angry and fearful of him.
The father stated that it is his intention that the child has a good relationship with both his parents, and, so that if he was with the father then the resumption of what is normal to him now would depend on his attitude towards the father and his half-sister and mother and attitude towards progress at school.
The father stated that if the child was to misbehave he would weather this behaviour by giving the child time to himself and distract him from the issues. He stated that he can engage in his training, resume his sport, and that he has friends and a half-sister who loves him and with whom he could spend time.
The father continues to hold the belief that the mother interferes with the child’s time with him.
The father said more recently when they were in New Zealand in June/July 2012, the child was spending time with the father and after having a one-hour telephone call with the mother he became distressed and said to the father,
“I want to know what is happening in Court. We haven’t even got enough to live on and we can’t even eat.” The father also stated that the child picked up a photo of him parachuting from the day before and pointed to it and said, “This is hundreds of dollars we could have used”.
The father’s evidence was that whilst the child has not said anything to him about his relationship with C, he can see from his behaviour that he enjoys spending time with her as he is no longer hostile or rude towards her and has seen him laughing with her.
The father agreed that he is more willing now than he was previously to allow the child to participate in his sport. He stated that sometimes he felt that sport was used by the mother to prevent him from spending time with the child and that access times overseas were set up to fail in that context.
The father does not believe that the mother has any basis for a concern that if the child lives with him he will prevent the mother from spending time with the child. He used the recent example of facilitating the mother and the child travelling to New Zealand and paying for the whole trip to show that he is happy to facilitate the relationship between the child and the mother.
The father’s evidence was that when the child first started spending time with him after the parties separated that the child was traumatised, unresponsive and crying and screaming. He stated that the mother called during the seven-week access time he had with the child to discuss the border-cross gate, that she turned up to Monster Park and was interfering with their time together.
The father stated that he has struggled for a long period of time and believes he has done a reasonable job in achieving a change in the child’s behaviour despite all the obstacles in his path, and he is confident he has achieved some results. He stated that he did what he saw as fit and made no apology for what he did to achieve that.
The father’s case was that the police report, the subpoena material from the child’s schools and from Ms V all demonstrated that the mother was out of control following separation.
The father agreed with the mother that the counselling sessions with Ms V have allowed them to sort out a couple of issues between them. However the father stated that overall he has been disappointed by the progress she has made. It was his evidence that one of the things that was sorted out was with respect to communication and that the mother gave an undertaking that she would stop leaving the father ambiguous voicemails and that communication would be via SMS or emails. The father stated that the mother has refused to abide by this undertaking soon after travelling to New Zealand in June/July 2012.
It was the father’s evidence that he does not believe that family therapy has achieved much by way of improvement in the relationship between himself and the mother. He was of the view however that the child should attend therapy on his own so he can talk to an independent person in a safe and confidential setting.
The mother and father came to an agreement for the child to attend T School for his secondary schooling.
Evidence of Mr BB
Mr BB swore an affidavit on 5 January 2012 on behalf of the mother.
Mr BB gave oral evidence at the hearing from the USA via videoconference.
Mr BB is the child’s coach. He is usually resident in Australia however spends his time at a number of places throughout the world, essentially “following the snow”.
It was Mr BB’s evidence that he did not issue receipts to the mother for his coaching services. He stated that the invoices annexed to his affidavit were the only invoices sent to the mother.
Mr BB stated that he did not want to be involved in the mechanics of the orders the Court proposes, and stated that he only wishes to be involved in the coaching of the child and the scheduling of his training and competitions if both parents allow him to.
Mr BB was questioned about his observation of the relationship between the father and the child during their holiday to the USA in December 2011. Mr BB stated that while he believes there are issues between them, that he did notice that there were moments of improvement in their relationship, however on the whole it was problematic.
Mr BB was questioned about the seven minute DVD of the child. He stated that while he thought the purpose of producing it was for the Court proceedings, he also said that it was a promotional video for the child to gain sponsorship for his sport. He stated that he definitely would have spoken to the mother about producing the DVD and that Mr II and Mr JJ, who produced the DVD, are friends of his.
Mr BB gave evidence that it is possible for the child to attract interest for sponsorship at his age and that he is the best at his sport for his age in Australia and New Zealand at the moment. He stated that types of sponsorship he would receive is dependent on age and ability, however at first one can expect to receive gear, competition entries, competition expenses, travel budgets, and once one has gained international recognition they can expect to receive a professional salary and increased travel budgets.
Mr BB stated that the child shows incredible skill in all components of the sport. He said that as the child gets older he believes he will predominantly be focused on one component of the sport.
Mr BB gave evidence that the child usually competes in junior competitions relative to his age group, but that he has competed in open competitions for experience.
Mr BB gave evidence that the sport is a fast developing sport and that for participants competing professionally there is no age limit and that it is wholly dependent on skill level.
It was Mr BB’s evidence that the general age range for in the sport is from 12 to 30, however he stated that there are professionals that are over the age of 30. He stated that the younger one competes the better one gets and it is all about developing the foundation for his skills. He stated that without this foundation you cannot expect to compete.
Mr BB was questioned on his thoughts of the child focusing on school now and then returning to competitive sport at the age of 18. It was Mr BB’s view that there would be no prospects of success if he was to resume competition at the age of 18 and it would purely be a hobby at this point in his life.
It was Mr BB’s evidence that once a professional competitive career has finished in this sport they can transition into other areas of the industry.
The Submissions
Submissions of the Independent Children’s Lawyer
It was the submission of the Independent Children’s Lawyer that orders that specifically address the sports proposal will not fix the difficulties in this family in the long term, because the problems are more fundamental than that. It was submitted that at the same time, and from the child’s perspective, if the sporting commitments have been part of the problem, they may well also be part of the solution as a carrot for the child to encourage continued progress at school and in his relationship with his father and C. The Court agrees with this submission.
The Independent Children’s Lawyer submitted that the mother is an unreliable historian, and used the example of the mother concealing the purchase of the CC Town property. It was also submitted that the mother’s evidence about family and personal relationships was internally contradictory; not just with the father’s evidence, and C’s evidence, but also the subpoena material from the school at Exhibit 18 and with Ms V’s evidence contained in emails annexed to the mother’s affidavit. It was submitted that her own evidence is inconsistent with her own documents and case. The Independent Children’s Lawyer used the evidence about the relationship she had with her own mother. The Court finds that the mother is an unreliable witness.
It was submitted that the enmeshed, almost symbiotic relationship between the mother and the child was illustrated by the mother’s habit of asking questions and making submissions on the basis of, “we did this”, “we did that”, “we went here”.
It was submitted by the Independent Children’s Lawyer that there is a difficulty in that there is no evidence from any expert that demonstrates that the child’s allergy to mould was in fact as severe as alleged by the mother.
The Independent Children’s Lawyer made the submission that Exhibit 18, being subpoena material produced by the school, demonstrates an inability on the mother’s part to be able to negotiate directly with the school those sorts of matters that a parent would ordinarily be able to traverse without needing to brief solicitors to write letters to the school. The Court agrees with this submission.
It was submitted by the Independent Children’s Lawyer that it must be recognised that as a layperson the mother would have confronted difficulties in taking over the reigns of the conduct of her case. Nevertheless, it was submitted that she had an opportunity to conduct her case fairly, with the Court allowing her to ask the questions she needed to ask.
The Independent Children’s Lawyer made submissions that it is significant that the relationship between the father and the child is not irreparable and that they have gone some way since the first hearing date to improve the relationship between them. It was submitted that this must, in large part, reflect the father’s capacity to withstand some provocative behaviour from the child. It was submitted that this is possibly because the father is by way of personality, considered and quiet and less volatile than the mother. It was also submitted that although problems still exist in some form in the relationship between father and son, that the improvement would give the Court hope that there is a chance to salvage this relationship. The Court agrees.
It was also submitted that the mother and father have been able to make some improvement in their relationship since the matter was last in Court, and that this should give the Court hope that there is a chance that the child can have a meaningful relationship with both of his parents, and that this should be tried if possible. The Court has a cautious hope that this might be so.
The Independent Children’s Lawyer submitted that there are improvements since January/February 2012 in the form of the child now seeing his father apparently without objection. The child has also managed to transition through to high school well. The father is able to give evidence of meaningful time between father and son with school holiday time being action-packed and adrenaline-based, with jetboat and helicopter rides in New Zealand. It was submitted that there is also evidence of a regular routine and family time when they are in Australia; time to watch television, go running together, to work on assignments, and to spend time with C.
The minute of orders provided by the Independent Children’s Lawyer, it was submitted, aims to provide that the child gets to spend time with his mother and father, spread across a two-week cycle, that includes school time and weekend time, and regular time to do the normal high school things. It was submitted that it is important now to try and build on the improvement that has already begun and encourage the further development of this relationship between the father and the child.
The Independent Children’s Lawyer submitted that the orders proposed for the father to have sole parental responsibility over the child’s education and his overseas travel is so that he can act as a circuit breaker. It was submitted that the Court proceedings have to stop and that if the parental responsibility arrangements were to remain as shared, it can be anticipated that the Court will be required to adjudicate each draw between the parents, and that whenever they cannot agree they would be back in Court. It was also submitted that there is no guarantee that such orders will work but a similar arrangement had been working so far this year.
It was the Independent Children’s Lawyer’s submission that it is important to note that the child is a “decent kid” and is a “nice boy” who has progressed into high school and whose teachers seem to like him. It was submitted that something must have gone right for the child at some point during the first twelve years of his life to allow him to move into a new school and do well enough given all the family dramas he has had to weather in the meantime.
The Mother’s Submissions
It was the mother’s submission that she was concerned that the orders proposed by the Independent Children’s Lawyer, giving sole parental responsibility to the father in the absence of agreement on issues of education and overseas travel and sport, would lead to an abuse of power by the father. The mother expressed concern about the father taking the child overseas for competition and enrolling him in a school overseas or in distance education in an attempt to alienate her from the child’s life.
The Court advised the mother during the course of her submissions that where an order exists that a child should have contact with a parent in Australia, that it is illegal to take that child overseas in a way that frustrates that order without the consent of both parents or order of the Court.
The mother submitted that she has stopped bringing applications to the Court for sporting competitions as she believes it causes the child distress, and she submitted that she believes any issues in relation to the child’s education and schooling could be resolved through mediation.
It was the mother’s submissions that if the child does not desire to compete in his sport then he should not be forced to do it.
The mother alluded in her submissions to possibly including the child in the mediation process, in particular with regard to his future in competitive sport.
The mother submitted that the child’s desire is to live with the mother and spend four days a fortnight with the father. She submitted that the child gets confused and wound up with the father’s monologues. She submitted that time with the father at the end is usually a bit frustrating for the child unless it is simple.
The mother also submitted that the time that the child spends with the father on alternate Thursday afternoons has been disruptive. She submitted that if the Court was to order equal time then she would ask for the child’s benefit for that time to be in block periods. She submitted that that way some routine can be afforded to the child. The mother submitted that two block periods would make life easier, make handover easier, make the child’s life easier and make each parent’s life easier as they can get into their own routine.
It was the mother’s submission that she believes the mediation process can easily rectify any issues that arise. She submitted that this has been proven with the appointments with Ms AA and the results that have been achieved in such a short time.
The mother raised some new evidence in her submissions that the child has been to a learning program with a therapist who was working with people who have Asperger’s Syndrome and taught the child how to look at his father like a television screen when he goes into his monologues.
The mother also submitted that the child has a tutor who teaches him to meditate and that the child enjoys this and it has benefited him.
The mother submitted that she was supportive of the relationship between the child and his father.
The Father’s Submissions
The father submitted that the mother’s submissions indicated a continuing belief in her own ability to manipulate the child to do and say things that suit her. The father was critical of the mother’s suggestion to include the child in the mediation process and that he should therefore be enmeshed yet again in issues requiring determination between the parents.
The father invited the Court to make findings in line with Dr D’s evidence and report on the mother’s impoverished capacity to provide for the child’s needs, her unwillingness to facilitate the relationship between the father and the child and the possibility of the mother resenting the child if he chooses not to continue with his sport and the plans she has for him.
The father also submitted that the Court should make findings consistent with Dr D’s assessment of the mother that she was lacking the capacity to imagine a life without being involved in competitive sport, travelling the world, and having a good time generally. In addition, that if the child is unable to compete, that aspect which maintains the primary link in the relationship between the mother and the child will be broken.
The father submitted that as Dr D reported, this is a genuine case of the mother attempting to vilify and destroy the relationship between the father and the child. The father submitted that this continues to this day.
It was the father’s submission that the father is aware that his relationship with the child has been strained in the past. Nonetheless, it is submitted that he has persevered with his parental responsibility for the child despite every attempt made by the mother to alienate him from his child; the child’s reprehensible conduct towards him; the precociousness of the child who believed he could get whatever he wanted from his mother; the evidence of the mother who constantly referred to the child and her as “we”; and the child saying to the father, “we don’t care what you think. We will go to court”.
The father submitted that findings should be made in line with Dr D’s observation that the father has some insight into the child’s needs and has always had the child’s interests at heart. The Court finds that this is so.
The father asked the Court to make a finding that notwithstanding the provision of the orders sought that, when it was appropriate, the father would enable the child to have an appropriate and proper relationship with the mother, set against a background of the child leading what might be described as a more normal life.
The father submitted that the Court would have no difficulty concluding that given any opportunity to cause disruption between the child and the father that the mother would grab it with both hands.
It was the father’s submission that the Court would find that there has been no alteration of any kind in the conduct of the mother. It was submitted that recently on their trip to New Zealand the mother reverted back to her obstructionist and poisonous attitude that she has towards the father by saying that the child did not want to see the father. The mother also demanded in the presence of the child to know what is happening in Court. It was submitted that the child was once again dragged through the quagmire of Court proceedings.
The father submitted that the reason for the improvement in the relationship between the child and the father is because he was able to spend more time with him in December 2011 and following, which was a result of the mother’s application to take the child overseas from December 2011 to April 2012 not being heard by the Court due to no availability of time to deal with the application. It is submitted that this gave the father an opportunity to finally have a say in what was going to happen and to spend time with the child.
The father submitted that he has no desire to mediate with the mother about issues pertaining to the welfare of the child’s education, sport, religious upbringing or any other major issue for the reason that he does not trust her to act accordingly, in terms of what is expected in the mediation.
The father made the submission that the mother fails to listen; fails to understand when she does listen; has no empathy for anyone else; and that you cannot trust the mother at all.
It was submitted by the father that he has been the one consistent, appropriate parent in the proceedings and that he had the foresight to see Gail Marshall for child management advice in regards to managing the child’s rejection of him.
The father submitted that the Court would have no faith in anything the mother has told the Court and that there is not one redeeming feature of the mother. The father submitted that this is a case where the Court would be justified in providing to one of the parents the obligation and privilege of sole parental responsibility, and that the Court would have no hesitation in finding that the father would act responsibly.
(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
The father was reported by Dr D to appear quite keen to maintain and facilitate contact with the mother and the child should the Court be agreeable to his proposal for the child to live with him. It was submitted by the father that he is not motivated by the desire to punish the mother, but rather to care for the child in a proper and appropriate way.
The mother has demonstrated an unwillingness and inability to facilitate and encourage a close relationship between the child and the father. She has at many times frustrated the contact which was to take place.
Dr D stated in his report that he believed that any relationship that does occur between the father and the child will do so only grudgingly, and only in order for the mother to maintain some kind of financial support from the father.
In particular, after consent orders were made on 4 November 2009 for a block period of time to be spent with the father, there were at least 15 occasions within that period that the mother interfered on the father’s time with the child, by turning up to appointments she was not required at and by attending the child’s sporting activities when she knew this was the time to be spent with the father. The mother denies that she was interfering and asserts that the orders allowed her to attend at the child’s sporting activities as a spectator. The Court accepts the father’s evidence.
In Dr D’ report, he indicated that the mother engaged in vilification when talking about the father, whereas the father spoke sympathetically about the mother. It was his oral evidence that he came to the view that the mother had set out to have an exclusive relationship with the child.
At the time of the interviews with Dr D, it was his belief that the mother was trying to break down the relationship between the child and the father. He stated that he formed this belief from the totality of his assessment as well as reading the material provided to him. It was his evidence that, back then and still now, the mother identifies lots of situations where she says she was involved and the father was not and provided information suggesting that the father was cold and disinterested in the child.
Dr D stated that at the time of assessment the child had no good memories of the father which was contrary to the information provided in 2009. He stated that it was unusual for this to happen to a child.
It was also Dr D’s evidence that the information provided in the school files indicated that the mother was very strident and it made him believe that she would be similarly so in the family context. He stated that from this information the mother had a combative approach to anyone who saw things differently to her. He also identified that the police report of the incident on 6 June 2009 revealed the mother as abusive and aggressive.
In his oral evidence, Dr D stated that from the material he read he identified that there was a pattern developing of the behaviour on the mother’s part that she has a particular view, pursues that view, and pursues that view whether the child is present or not, and does it in a way that alienates the child from the father and promotes an exclusive relationship with the mother.
In cross-examination of Dr D by those representing the father, it was put to him that the mother had concealed from the father and the Court the purchase of the property in CC Town, New Zealand. It was asked of Dr D whether this would be consistent with her modus operandi to alienate the child from the father. Dr D agreed, stating that at the time he thought that was consistent with her decision to live independently of the father, and that she saw that New Zealand would cater for her needs and create difficulties for the father.
Dr D stated in his report that he thinks it will be impossible to imagine a scenario where the child could spend substantial amounts of time with the father whilst living with the mother. He states that this is a case where the mother has attempted to vilify and destroy the relationship the child has with the father. At the time of his report he asserted that this was a situation where the child can live with either the mother or the father, but not both.
During the period of the adjournment between February 2012 and August 2012, there appear to have been improvements in the relationship between the father and the child, and whilst the Court is unable to identify the exact reasons for this change, it appears inter alia perhaps that the mother has been able to appreciate that this relationship is important to the child and has facilitated it. The child currently spends four nights per fortnight in one week with the father and one afternoon in the second week.
Dr D was unable to identify what would have motivated the changes in the relationship between the father and the child, however he agreed that one possible reason could be the mother’s concern that there needs to be some change and encourage a better relationship between the father and the child because of her fear that the Court might order that the child live with the father.
In his oral evidence, Dr D stated that it was hard, on the basis of the information he has, to say that there has been a real change in the mother’s attitude towards the father. However, he stated that change does not have to be a sudden about-face. It was his evidence that the changes are really important, but that at this point they are still fragile and could easily slip away which would be unfortunate.
It was Dr D’ oral evidence that he saw it as an encouraging sign that there has been the opportunity in recent times for the mother and father to communicate and cooperate at some level about arrangements for changeovers.
Dr D did state, however, that whilst some significance can be placed on the parents not taking every opportunity to “knife each other”, that there were still some concerns, in particular with telephone calls and when the child was taken to hospital as set out in the father’s updating affidavit filed 10 August 2012.
The parties are to be commended for reaching agreement about the child’s travel to New Zealand for his sport in the June/July 2012 school holidays. Dr D noted that this was an improvement of some significance.
The evidence suggests that there is still some level of dispute between the parties but that it is not at the height observed by Dr D in 2011. In his oral evidence, Dr D stated that he would describe the situation as being very fragile at the moment. He stated that there is an improvement that could lead to long-standing improvement, but that it is still fragile and there is still the possibility of it falling apart. He stated that ongoing improvement would depend on a fair amount of commonsense, goodwill and determination by all parties to allow it not to fall apart.
(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
Dr D states that if there were to be a change in residence and/or parental responsibility it would be extremely difficult for the child and a traumatic period for him.
Dr D also stated in his oral evidence that if there was to be a dramatic change in his living arrangements that it has the potential to make the child feel as though he is the one who was to wear the punishment. He stated that if the situation is that the child is the one making the effort to improve the relationship with his father because he doesn’t want the worse case scenario to take place, then it would be a slap in the face for him if the worse case scenario takes place anyway.
(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
At the time of writing the report it was Dr D’s opinion that if the child remains with the mother there will be a complete attenuation in his relationship with the father, his half-sister and his extended family. He also stated that the child is very likely to struggle in his education and if he should then fail to develop in his elite sportsperson’s role the child will be in an extremely difficult position.
Dr D likened the situation to the child’s eggs all being in one basket, and if that basket should break he stated that it would be hard to see how the child will be able to adjust or even maintain the support of his mother.
The father gave evidence that he has recently moved back into the parties’ old property at KK Town so that he can be closer to the child’s school and the mother’s house.
There does not appear to be any expense to either the mother or the father of the child spending time with each of them or communicating with each of them whilst the child resides in Sydney. During any period which might take place of overseas training there would be significant expense in a parent residing in Australia visiting the child.
(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
Dr D states that the father is able to provide for the physical and intellectual needs of the child. He states that the big difficulty will be his capacity to meet the emotional and psychological needs of the child. He further states that the father’s own psychological state is to be somewhat emotionally reserved, and if the child were to live with the father he would need to be emotionally insightful and responsive. The Court is satisfied that this father will understand the advice given and, if such aid is needed, seek help to aid his response to the child’s emotional needs.
Dr D states that the father is reserved and conservative in his values, that he does not appear to have any great deal of phobic anxiety, but is a person who has mild aspects of Asperger like symptoms. Nonetheless, Dr D concluded that the father appears to have a number of other strengths and traits that suggest a person who is capable of functioning quite well in the world.
Dr D reported that the father appears to have been quite dedicated, generous and supportive of C, and appears to have some insight into the child’s needs. The father was also observed to be able to maintain a control over his emotional state.
The father’s evidence is that the time the child spends with him during the school term involves a regular routine of homework, family time and attending school without incidents. Dr D stated that the ability to maintain some kind of normal routine is a very important improvement to the situation.
Dr D states that the mother has a high level of activity and sensation seeking and is a risk-taking individual. She tends to identify any complaints about her as being due to conspiracies against her, or incompetence or corruption on the part of others. She has great difficulty in managing long-term relationships with her own family, including C, her adult daughter from a previous relationship.
Dr D states that the mother appears to have an almost obsessive interest in the child, and he thinks that there are utilitarian aspects to that inasmuch as it helps punish the father, but it also helps maintain an income stream.
Dr D believes that there is a genuine element of absolute fascination with her son and with his talent and life and that the wild ride in a sense that he is able to engage in his sporting prowess meets her own needs in a somewhat symbiotic fashion.
Dr D states that the capacity for the mother to be able to provide for the child’s physical, intellectual and emotional needs is quite impoverished. Dr D states that the orders the mother seeks are short-time focused and completely dependent upon the child being able to maintain a level of sporting competitiveness that may be challenged by illness, injury, competing interests, or failing to make the grade. The Court notes that the orders the mother now seeks are slightly different to what she originally sought. She now seeks that the child spend an extra two nights per fortnight with the father. The mother continues to seek that the child be allowed to attend full-time training and continue his education overseas. However the mother now seeks that all snow sports are to cease if the father wishes.
In his report, Dr D concluded that the mother reveals no capacity to imagine a life without being involved in competitive sport, travelling the world and having a good time generally, and if the child is unable to compete and provide that aspect, which for the moment maintains the primary link in the relationship between the mother and the child, there will be an end to that dependence and the relationship may well change.
(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
The child is twelve years of age and is a competitive sportsman. Dr D states that while the child appears to have a genuine talent and skill in winter sports, he is being prevented from going through adolescence in any normal kind of transition.
Dr D states that the child is an immature boy, psychologically vulnerable, totally engrossed in the exciting lifestyle that his mother provides for him and is unable to foresee the consequences of his behaviour.
Dr D states that the child presents with elements of panic-like and obsessional behaviours, as well as depressed mood, that might reflect some of his father’s behaviours but also likely reflect his lack of coping with the rollercoaster life he is experiencing. The father invited the Court to make a finding to this effect.
The child has had educational difficulties as a result of his constant travelling and involvement in competitive sports. Dr D stated that he is likely to continue to struggle academically.
Exhibit 24, being the school report from T School, indicates that the child is slowly improving at school but that in certain subjects he has room to further improve.
The child has suffered from numerous health issues as a child. He had a tongue tie when he was a young child and underwent speech therapy and subsequently surgery to resolve his speech difficulties.
The child also has Dextrocardia, a condition where his heart is on the right side of the chest instead of the left. This condition is asymptomatic.
The child is said to be allergic to mould. It does not cause him anaphylactic shock, however it can cause high fevers and infections. The child has changed schools twice throughout primary school as a result of the mother’s concern of mould being present in the school environment. The child first attended H School, then J School, then K Town School, and is now presently enrolled in T School for secondary school. The child was also enrolled in Distance Education at one point, and was enrolled in LL School also during his primary education. The father asserts that since the child has had a tonsillectomy his symptoms of fever and infection have subsided. He refers to medical advice that he received that his tonsillitis rather than his mould problem probably caused the majority of the symptoms previously thought to be caused by exposure to mould.
The child also has hyper mobility in most of his major joints which means he can injure himself and not be aware that he has done damage to his joints. He has a permanently dislocated elbow. After any fall or accident he requires frequent x-ray and consultations with doctors and physiotherapists.
The child also has Chronic Appendicitis which means that from time to time he will have an inflamed appendix, however does not require any surgery or for the appendix to be removed.
In his report, Dr D identified the disadvantages associated with the child’s absence from Australia in 2010 and 2011 as being that his education suffered and he lost his relationship with his father and half-sister. He also stated that while he is not completely isolated and does have continuing relationships through peers at school, that he is unable to maintain relationships that are stable with a peer group in his own area. It was Dr D’s opinion also that it is doubtful that the child will gain the maturity to handle both the attention and the successes that come with the lifestyle of an elite sportsperson. Dr D also stated that it is impossible to see how, given the already noted deterioration in his education, if this lifestyle were to continue for much longer, he would be able to gain the fundamental educational skills in order to catch up despite him being an intelligent boy.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not applicable.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father acknowledged in the interview with Dr D that his relationship with the child was strained. The father stated that he believes that there would need to be psychotherapeutic intervention in order to bring the relationship on track.
It was the father’s submission that the father has nonetheless persevered despite every attempt made by the mother to alienate the child from the father; the child’s conduct towards him; the precociousness of the child who believed he would get what he wants; and the approach of the mother who referred constantly to herself and the child in evidence as “we”.
In his report at paragraph 132, Dr D stated that he suspected that the father disciplining the child at that point in time would be fairly counterproductive.
It was pointed out to Dr D in his oral evidence that the father’s recent evidence describes a more typical relationship between father and son, including the father’s capacity to lay down some ground rules and make it clear what the father expects from the child in respect of his behaviour. Dr D accepted that this was a significant breakthrough compared to his observations in his report.
It was suggested by the Independent Children’s Lawyer that this suggests a level of commitment on the part of the father to pursue the relationship and weather the child’s difficult behaviour.
Dr D stated that there could be a number of things involved in this improvement and was cautious in his response. He stated that he was surprised how deep the enmity was between the child and the father at the time of his report.
It was his evidence that alternatively it might be that the child has decided to calm down, and might reflect his developing maturity. He agreed that it was a proactive move on the part of the father as well as on the part of the child.
Dr D reported that the father believes there is a recoverable relationship between him and the child. The father told Dr D that he needs to help the child re-establish a relationship with C and his aunt, as well as facilitate contact with the mother.
The father has demonstrated a positive attitude towards re-establishing his relationship with the child. It was the father’s evidence that whilst he understands that his sport is important to the child, that he doesn’t want to be restricted by Court orders as to when the child should travel overseas. It was his evidence that travel overseas would be dependent on the child’s behaviour towards him and the mother and C and relevant others and his performance at school. He stated that as long as he felt that the child was trying his best at school, although not necessarily at the top of the class, that he would allow the child to travel overseas to compete in sporting competitions.
Dr D stated that this would be a reasonable approach but that there needs to be a sense of mutual commitment. He stated that determining each trip on a case-by-case basis may cause the child to become suspicious about the father reneging. Rather, he stated that it may be best using a “we’re going to go but you have to do this” approach.
Dr D’s evidence was that there needs to be awareness of the fact that the child is still going to be an adolescent and is still fairly embryonic.
The father also gave evidence that he assists the child with his homework and school projects. His approach to this is to allow the child to attempt the work on his own in the first instance and then provide assistance if he needed it. He preferred not to be a “helicopter parent”, presumably meaning the type of parent who hovers over a child whilst he is doing his school homework.
(j)any family violence involving the child or a member of the child’s family
There are historical allegations of violence and an interim AVO has previously been imposed upon the father listing the mother and the child as protected persons. There are also instances where police have been called to the house.
On 10 June 2009, there was an incident between the parties in the family home involving a dispute as to whether or not the parties spat at each other. L Town Police attended the home and asked the father to make a statement. The father advised the police about the mother’s application for an AVO to exclude him from the K Town property and they accompanied him to the house to collect some belongings.
The apprehended violence proceedings were contested by the father and were dismissed.
(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
There was an AVO applied for by the mother shortly after separation which listed her and the child as the protected persons. This was made on 10 June 2009. The proceedings were dismissed at final hearing.
(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
It would of course always be preferable to make an order which reflects this expression of view that constant proceedings are not good for children. This is a case where the child’s needs are going to change with age and maturity and perhaps interest.
It is to be hoped that the parents are able to adjust and adapt to that change when required. The Court will enable them, with respect to some of the ordered arrangements, to make changes by agreement in writing.
If issues arise which do not resolve by agreement of the parties it is to be hoped that they will seek extra curial assistance in the form of mediation so that they will not return to this battlefield, littered as it now is with the costly detritus of the war that has been engaged in. The cost of these proceedings in time, money and emotion are to be avoided and hopefully not repeated.
The parties should note that in disputes of this sort there are few winners and the loser is often the very child whose interests the parties assert they serve by the contest. In the circumstances of this case, it is hoped that the orders will, with a hopefully further developing cooperation between the parties the embryonic nature of which has been evidenced, lead to cooperative parenting not requiring further Court intervention.
(m)any other fact or circumstance that the court thinks is relevant
Dr D stated that he would not recommend for the parents to attend family therapy but rather that a mediation or negotiation approach could be better. He stated that there would be little room to move in family therapy.
Dr D recommended that the parties should attend mediation facilitated by Relationships Australia.
He also recommended that the father and the child should participate in the Adolescent Family Therapy and Mediation Service (RAPS) provided by Relationships Australia. This program is designed to improve communication between parents and children, and uses a therapeutic aim to improve the relationship. He stated that it is a parenting adolescent program based mainly in family therapy but using mediation and how to deal effectively with problems facing children during this transition into adolescence.
Whilst this case is not about sport, just as sport has been part of the problem in the parenting dispute, Dr D agreed with the Independent Children’s Lawyer that it needs to be part of the solution, at least for the next two to three years.
Dr D stated that the child believes he has what it takes to make it to the top; it has been an entrenched and genuine belief of his which has not just come from his parents but coaches and friends as well. He believes that there needs to be some type of commitment and agreement to this.
Dr D stated that there should be a mechanism in place so that if travel is to take place it can. He stated that if the child was demonstrating an interest and his performance in competitions suggest it is worthwhile he would suggest making sure the travel happens.
It was also Dr D’s recommendation that there needs to be a mechanism that allows the child to opt out of competing without feeling as though he is letting people down if he decides he no longer wishes to pursue elite competition.
Dr D stated that there needs to be a genuine commitment from both parents and preparedness to allow the process to take its natural course and not truncate it too quickly. He said it has to stop naturally if in fact it is going to stop.
Dr D identified that numerous factors may impact on the child’s future in his sport which include injury; the competitive pressures becoming too much at an age where children just want to have fun; the conflict associated with beginning relationships during adolescence; and other events that happen in mid-adolescence that may affect the child’s commitment to elite competition.
The Court notes that the child’s sporting activities have been restricted somewhat in the past eight months and that his reaction has not been negative.
It is the mother’s submission that whilst in New Zealand in June/July 2012, the child was told that his skills have deteriorated and that this next year will be his last chance to set up a training program to build back up and that his potential will be determined in the next twelve months. The mother asserted that she is ready to accept whatever happens in relation to the child’s sport.
Section 60CC(4) and (4A)
I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.
Balancing of all considerations under Section 60CC and the defined issues
Balancing the matters set out in section 60CC and the evidence recited in these reasons the Court concludes that the orders it proposes will operate to foster the best interests of the child for the reasons specified above.
Section 61DA
This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the child’s best interests for his parents to have equal shared parental responsibility for the child.
The presumption does not apply where there has been family violence. In this case there has been an allegation of such violence but the Court notes the dismissal of proceedings brought by the mother and the evidence from the police in relation to that matter.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests. The Court does not in this case find it to be in the best interests of the child to make an order for general equal shared parental responsibility but will make an order which gives to the father sole parental responsibility as to some matters for the reasons referred to in this judgment.
Section 65DAA
This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.
The Court is not proposing to make an order for complete shared parental responsibility however it has considered a proposal for equal time, and proposes that the Orders set forth above be made which it determines as in the best interests of this child.
I certify that the preceding three-hundred and eighty-seven (387) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 31 October 2012.
Associate:
Date: 31 October 2012
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Family Law
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