Massey and Norris and Anor

[2015] FCCA 3244

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASSEY & NORRIS & ANOR [2015] FCCA 3244

Catchwords:
FAMILY LAW – Children – parenting orders – assessment of competing contributions.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 62G, 65DAA

SPS and PLS (2008) FLC 93-363

Maldera & Orbel [2014] FamCAFC 135

Applicant: MS MASSEY

First Respondent: MR NORRIS

Second Respondent: REBEKAH BASSANO

File Number: CSC 235 of 2007

Judgment of: Judge Jarrett

Hearing date: 30 November 2015

Date of Last Submission: 1 December 2015

Delivered at: Cairns

Delivered on: 4 December 2015

REPRESENTATION

Counsel for the Applicant: Mr MacPherson

Solicitors for the Applicant: MacDonnells Law

Counsel for the Respondent: Ms McArdle

Solicitors for the Respondent: O’Reilly Stevens Lawyers

Counsel for the Independent Children’s Lawyer: Ms Williams

Solicitor for the Independent Children’s Lawyer: Rebekah Bassano

ORDERS

IT IS ORDERED:

1. The orders dated 23 June 2009 be discharged.

2. The Mother have sole parental responsibility for X born (omitted) 2004 (“the Child”).

3. The Mother will keep the Father informed of all significant decisions made for the Child, including but not limited to choice of secondary schooling and significant health and medical matters.

4. Commencing upon the making of these orders, the Child live with the Mother.

5. Commencing on Friday, 11 December, 2015 the Child will spend time with the Father as follows:

   (a)On each alternate weekend from Friday after the Child finishes school or at 3:00pm on non-school days until before school the following Monday, or Tuesday if Monday is a public holiday;

   (b)On the first half of every March/April, June/July, September/October of the Child’s school holidays in all even numbered years and the second half of every March/April, June/July, September/October of the Child’s school holidays in all odd numbered years.

   (c)Half of the Child’s Christmas school holidays alternating each year between the first and second half of the school holidays, commencing in the first half for the 2015/2016 school holidays and the second half in the 2016/2017 school holidays.

6. For the purposes of Order 5(b) and (c), the school holidays are deemed to commence at 3:00pm on the last day of the school term and conclude at 3:00pm on the last Sunday prior to the school term recommencing. The mid-holiday changeover for the March/April, June/July, September/October school holidays will occur on the second Saturday of the school holiday period at 3:00pm. The mid holiday changeover for the Christmas school holidays will occur at 3:00pm at the midpoint between the commencement of the school holidays and the conclusion of the school holidays.

7. If the Child is not already spending time with the Father on Father’s Day, the Child will spend time with the Father on Father’s Day from 9:00am to 4:00pm.

8. If the Child is not already spending time with the Mother on Mother’s Day, the Child will spend time with the Mother on Mother’s Day from 9:00am to 4:00pm.

9. All changeovers will occur at the Child’s school except for on non-school days on which changeover will occur at (omitted) Shopping Centre.

10. The party who the Child is living with or spending time with will make the Child available for telephone time with the other party each Wednesday at 6:00pm.

11. The parties are permitted to travel with the Child interstate and outside of Australia during their time with the Child. Each party will provide to the other party details of their intended travel with the Child at least 21 days before travelling.

12. Each party will do all acts and things and sign all documents necessary to complete a passport application or a passport renewal for the Child within seven days of being requested by the other party.

13. The Mother will hold the Child’s passport. The Mother will provide the Child’s passport to the Father, at least 14 days before the Father’s intended overseas travel with the Child. The Father will return the passport to the Mother within 14 days of arriving home from any overseas travel with the Child.

14. The parties will communicate by email and text message for matters concerning the Child.

15. In the event of an emergency concerning the Child or a serious medical matter, or if the Child attends the hospital or emergency department, the parent whom the Child is spending time with pursuant to these Orders will contact the other party as soon as practical but no less than 12 hours, by telephone.

16. The parties will keep each other informed of their residential address and telephone numbers. In the event either party changes their residential address or telephone number they will inform the other party within 24 hours.

17. The Child be psychologically assessed and assisted in accordance with the Family Report Writer’s recommendation in paragraph 46(c) of the Family Report filed 26 November, 2015 and for that purpose:

    (a)despite order (2) hereof the Mother will provide a list of three (3) psychologists to the Father and the Father will select one (1) of the three (3) psychologists for that purpose; and

    (b)the parties have leave to provide the psychologist with a copy of both Family Reports.

18. The parties be restrained from denigrating the other parent in the Child’s presence.

19. The parties be restrained from discussing these proceedings with the Child.

20. The Independent Children’s Lawyer is discharged

21. All outstanding applications are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Massey & Norris is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

CSC 235 of 2007

MS MASSEY

Applicant

And

MR NORRIS

First Respondent

REBEKAH BASSANO

Second Respondent

REASONS FOR JUDGMENT

You can’t help but... with 20/20 hindsight, go back and say, ‘Look, had we done something different, we probably wouldn’t be facing what we are facing today.’

Norman Schwarzkopf, Jr.

1. That quote is relevant for three reasons. First, in cross-examination counsel for Ms Massey described the last ten years as a battle or a war between these parents – a description with which Mr Norris agreed. Second, on more than one occasion Mr Norris was given to remark that, with hindsight, he could see that his actions and behaviour towards Ms Massey were appalling, cowardly and offensive. Third, had Mr Norris chosen to conduct his communication differently to the way in which he has I am certain that the parties would not be facing what they are facing today.

2. The conflict between separated parents is one of the most insidiously damaging things to which children can be exposed. In fact, Mr K, a psychologist and the author of the reports prepared in this matter pursuant to s.62G of the Family Law Act 1975, gave evidence that the biggest risk factor for children living with separated parents is parental conflict – the behaviour of the parents themselves.

3. The parties to these proceedings are locked in bitter conflict about the best interests of their son X. Fuelled by their own views, formed in the crucible of the toxic atmosphere of the ongoing conflict that rages between them, these parties come to this Court each promulgating arrangements that they suggest will best suit their son. However, whilst they suggest that the orders proposed by them are in X’s best interests, their affidavit evidence, the evidence that they gave in cross-examination and indeed even the questions asked by those that represented them (and the Independent Children’s Lawyer) focussed upon the parties’ wants and desires.  Questions and evidence about “the father’s time”, “the mother’s time”, “his time”, “her time”, “your time”, “my time”, “the father’s time over the school holidays” and “the mother’s time over the school holidays” were and are entirely unhelpful, save that they assist to illuminate the real focus of the parties’ attentions in this case – namely what it is that they think they are, or the opposing party is “entitled” to, or deserves.

4. To conduct their cases in that manner diverts attention from the statutorily mandated focus of the Court’s inquiry – the best interests of X.  Questions from those that represent the parties and the Independent Children’s Lawyer about the parents’ “time” with X are apt to and did, in my view, distract from that primary focus.  And, for so long as those advocating for the parties and the Independent Children’s Lawyer continue to put questions and submissions in that way the already misguided views of the parties about what is important to the Court will be reinforced and given a vigour they do not deserve.

5. This case is not about the time that these parents get to spend with their son, either during school term or on school holidays.  This case is not about what it is that the parents consider they are entitled to as a result of some misguided or misinformed view of their “rights” as parents.  If it were about those matters, the outcome of these proceedings would be relatively easy. 

6. Mr Norris is plainly a bully.  He uses fear and intimidation to control Ms Massey.  He has treated Ms Massey in the most appalling of ways.  As X gets older there is little reason to think that he will not conduct himself in the same manner so as to bend X to his will.  Ms Massey is, herself, no angel.  But she has not conducted herself in any way that comes close to matching the sheer malevolence with which Mr Norris has approached his interactions with her.

7. If those matters alone were the yardstick by which this case was to be judged, there could be only one outcome.  X should reside with his mother and spend regular, frequent, but short time with his father so as to:

   a)maintain a relationship between X and his father, something which on all of the evidence is appropriate; but

   b)reduce the opportunity that Mr Norris has to unduly influence X and for his behaviour to impact upon X’s wellbeing.

8. Mr Norris now claims that he is ashamed of his behaviour and “with hindsight” has come to understand the error of his ways.  But there is nothing in his written evidence that suggests that his statements made in the spotlight of cross-examination are genuine.  Much of the relevant conduct happened quite some time ago and Mr Norris has had ample opportunity to express his regret, remorse and contrition for his actions.  Instead, his affidavits either do not deal with them at all, or seek to justify his abhorrent behaviour by reference to the mother’s own conduct.  His evidence in cross-examination about these matters smacks of hubris.  Too little, too late. 

9. This case is about X’s rights and entitlements not those of his parents.  It is about the amount of time that he spends with his parents and the impacts upon him if the current arrangements remain in place, or if they are changed. 

10. These parties have already attempted to have the Court make decisions for them:

    a)In 2005 Mr Norris commenced parenting proceedings in the Family Court of Australia.  Seemingly, the only orders in those proceedings were interim orders made on 21 July, 2005.  They provided for X to live with his mother and to spend specified time with his father.  The orders permitted some travel for X and his mother.

    b)In March, 2007 Mr Norris commenced further proceedings in this Court for parenting orders in respect of X;

    c)Interim orders were made by consent in April, 2007 that provided for the earlier Family Court orders to be discharged, that X live with his mother and spend specified time with his father.  The parties agreed to an order for equal shared parental responsibility.

    d)On 14 February, 2008 Ms Massey filed an interim application seeking orders permitting her to relocate X’s residence to Brisbane.  Orders were made on that day transferring the proceedings to the Family Court of Australia.  The order transferring the proceedings was entirely appropriate in the circumstances.  The proceedings had originally commenced in the Family Court.  The evidence disclosed an intractable and toxic conflict between the parties.  The application had also broadened to include issues of relocation of a young child a significant distance from one of his parents.  The proposed relocation was opposed.

    e)Oddly, on 19 February, 2008 the matter was transferred to the Federal Magistrates Court “for the purpose of the parties attending a mediation conference only”.

    f)Then, inexplicably, on 27 February, 2008 the application was transferred back to the Federal Magistrates Court.  No reasons seem to have been given for the decision to transfer the matter back to the Federal Magistrates Court.

    g)Further interim orders were made on 10 March, 2008 which provided for X to spend 4 consecutive days each alternate week with Mr Norris.  The application was listed for hearing on 6 May, 2008.  On that day certain findings were made based upon the parties’ consent, and the balance of the dispute was listed for further hearing on 24 June, 2008;

    h)Despite that order, on 4 June, 2008 final parenting orders were made in respect of X.  By those orders, the parents were to have equal shared parental responsibility and X was to live with his parents week and week about.  Particular orders were made to accommodate the father’s work roster and in respect of holiday periods.  According to those orders, the parents were to enrol and attend a parenting orders program and Focus upon Kids program through Relationships Australia.  That course needed to be undertaken by 16 July, 2008.

    i)The final orders did not quell the dispute.  On 31 October, 2008 Ms Massey commenced further proceedings relating to overseas travel for X.  Mr Norris responded by seeking orders that entirely upset the orders that were made in 2008.  He sought orders that X live with him in (omitted) and spend school holiday time with his mother.  Mr Norris sought orders about the payment of money relating to X’s travel between Brisbane and (omitted) in accordance with the earlier orders.  Not to be outdone, Ms Massey amended her application to seek orders that essentially set aside the earlier orders and would provide only holiday contact between X and his father;

    j)On 13 November, 2008 orders were made dealing with some interim issues including overseas travel, the costs of travel and some other issues.

    k)On 27 January, 2009 the pending applications were set down for final hearing in March, 2009.  An updated family report was ordered.  However, the application was not reached and it was listed for final hearing in June, 2009.

    l)On 23 June, 2009 the parties, with the benefit of two reports from a family consultant, were able to reach an agreement about the orders that were to be made.  These are the orders that are extant and that each of the parties now seek to have set aside in these proceedings.

    m)By those orders, and generally speaking, the parties were to have equal shared parental responsibility for X and X was to live equal time with each of his parents.  There were some other matters that were dealt with in the orders, but that was the main thrust of them.

    n)Those orders held the fort until 16 January, 2014 when the present proceedings commenced.  Two more family reports later, we have arrived at another trial.

11. Both parties and the Independent Children’s Lawyer seek that different orders be made to those that were made on 23 June, 2009. 

12. Ms Massey seeks orders in accordance with a proposal that has been given to the Court and marked as exhibit 2.  The orders proposed by the independent children’s lawyer are set out in exhibit 1 in these proceedings.  Mr Norris seeks orders that reflect the current orders by and large, but he seeks some other orders about school holiday time and some counselling for X

13. There seems to have been some agreement between the parties that there was no need to address or establish that there has been any significant or material change in X’s circumstances sufficient to warrant the revisiting of his welfare.  The parties seemed surprised when I suggested that it was difficult to see that there had been a relevant change in circumstances sufficient to revisit the current orders.  Both parties and the Independent Children’s Lawyer struggled to identify any relevant change in circumstances.  The best that could be said was that:

    a)from Mr Norris’ point of view, the changes that he is pursuing are relatively minor;

    b)from Ms Massey’s point of view, the current orders are not working for X.

14. The Court is not bound by the parties’ agreement about that matter. The exercise in which the Court is engaged is a discretionary exercise informed by the provisions of the Act, and in particular s.60CA of the Act. As Warnick J pointed out in SPS and PLS (2008) FLC 93-363, ultimately the task in which the Court is engaged is to derive an order that meets the best interests of the child or the children who are the subject of the application. In that case, his Honour explained the principle as follows:

    48.    In my view, reflection on the rule [in Rice & Asplund] shows that:

    (i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.

    (ii)     In its original formulation, the rule is directed to application as a preliminary matter.  Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing.  The consequences of that determination have received little attention.

    (iii)    At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.

    (iv)    Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.

    (v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.

    (vi)    “Shorthand” statements of the rule may contribute to its misapplication.

    (vii)   Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.

    (Emphasis in original)

15. There is some evidence of a change of circumstances. It is to be found in the first report prepared by Mr K, a psychologist who prepared reports pursuant to s.62G of the Family Law Act 1975 for the assistance of the Court in this matter.  I have set out paragraph 49 of that report below.  In that paragraph Mr K refers to some family reports in earlier proceedings between these parties.  Family reports were prepared by a Ms C on 1 May, 2008 and 15 April, 2009 for those proceedings.  They are not in evidence.  But Mr K noted a change in X’s presentation as noted by Ms C and that observed by him.  His report is suggestive of the proposition that the parent’s ongoing conflict has had a negative impact upon X.    

16. The evidence in this case reveals that X is an 11 year old boy who is desperately loved by both of his parents.  But despite their intense love and concern for him, they have, by their own actions inflicted harm and damage on what, no doubt, is the most precious person in their lives.

17. In this case X has the benefit of an Independent Children’s Lawyer.  As I have already indicated, the Independent Children’s Lawyer has organised for two family reports by Mr K.  Speaking of the effects of the conflict between his parents on X, in his first report Mr K says:

    48.    Ms Massey and Mr Norris have a history of high conflict, poor communication and inability to effectively co-parent. At the same time, their son, X, is at high risk of psychological problems because of his history of anxiety, low self-confidence, learning difficulties, and his ongoing exposure to the parental conflict. X’s difficulties, along with the parental conflict are discussed in more detail below.

    X

    49. In contrast to the observation made by the family report writer, Ms C, five years ago that X “ ... is strong, robust, independent and resilient”, my impression of X at present is almost the complete opposite. Based on the information available to me, X is an anxious, shy and withdrawn child, who has trouble making friends, struggles academically, and is emotionally and socially immature compared to other children his age. Unfortunately, this situation has been exacerbated by the ongoing parental conflict, which has resulted in the parents being unable to agree on X’s involvement in extracurricular activities, or his need for access to specialist support such as tutoring and psychological assessment.  It also appears that, due to the parental conflict, X is often left in the position of having to negotiate issues between his parents, which is placing significant stress on a child who is already at high risk.

    50. In my opinion, the combination of learning difficulties, poor social functioning, low self-confidence and ongoing parental conflict places X at very high risk of experiencing ongoing stress and other psychological problems. X will benefit from a thorough psychological assessment to identify the reasons for his learning difficulties and to further assess his anxiety and social problems. It is also likely that he will require some ongoing support to help him manage his anxiety and social problems, as well as counselling to help him cope with the ongoing parental conflict.

    …

    54. … As noted above, X is at significant risk because of his anxiety, lack of confidence and learning issues, and it is critical that both parents cooperate to ensure he gets access to appropriate opportunities and supports.

    …

    H. RECOMMENDATIONS

    56. In my opinion, there are two possible pathways that could be taken in this situation. The first pathway would be to keep the same, or similar, contact arrangements in place and to maintain joint parental responsibility, while, at the same time, putting in place strategies to improve communication between the parents and to ensure X gets access to the support that he needs…

    …

    57. The other pathway would be to recognise the impact the entrenched parental conflict is having on the child and to make significant changes to the contact arrangements and to the parental responsibility to minimise the impact of this conflict on X…

    (my emphasis)

1. Neither party suggested that there was any reason to doubt the reliability of Mr K’s evidence.  The parties received Mr K’s first report in December, 2014.  Despite his report and opinions, the parties did nothing at all to address he conflict between them, or their difficult communication so as to advance X’s interests.  The conflict is just as florid as ever.  The parties, but Mr Norris in particular, show no insight into their roles in the conflict that rages between them.

2. In his second report dated 25 November, 2015, Mr K says:

   37. In my opinion, little has changed since my previous report, and the lack of communication between the parents and their ongoing inability to co-parent remains as entrenched and problematic as before. Ms Massey and Mr Norris are unable to effectively agree on any issue and this is having a direct impact on X. They cannot agree on whether X needs tutoring and which tutor to use. They disagree on who X's GP is. They have been unable to agree on X having a psychological assessment and, as a result, this has not occurred, despite the recommendation in my previous report. Even when X sees a specialist, they have been unable to agree on the outcomes of the assessment. For example, when X saw an optometrist earlier this year Mr Norris insisted that the optometrist did not recommend glasses, while Ms Massey insisted that glasses were recommended.  They have also been unable to agree on a (sic) X attending an appointment with a paediatrician.

   38.    Both parents acknowledge that they are only able to communicate by text message and, for different reasons, neither parent appears to believe that any improvement in their communication is likely or possible …

   39. In my opinion, this lack of communication and co-parenting is having a direct and significant impact on X…

   …

   42.    Comments made by X during the interviews suggest that he is becoming increasingly aligned with his father in the parental conflict, and this is contributing to the distress he experiences on changeover days when he has to go to his mother’s place…

   43.    X’s increasing alignment with his father in the parental conflict is a cause for significant concern, and I think there is a significant risk in the future that this may lead to increasing emotional problems for X, along with relationship issues between him and his mother.

   44. In my opinion, it is clear that the parents do not have the capacity to effectively co-parent, and this is causing ongoing problems for X

   (again, my emphasis)

3. I have set these things out at length.  The parties have taken up two days of trial time with the final hearing of this matter.  No evidence was given in chief by the parties touching upon any of the above matters.  No evidence was led by either party to the effect that they had reflected upon the assistance they had received from Mr K’s reports and had undertaken action.  What the evidence does reveal is that Mr K’s first report has simply led to further dispute and conflict between the parties.  Mr Norris has continued on his way of making his own determinations about what should be done for X, despite already possessing qualified evidence about what should be done.

4. Moreover, the parties’ written evidence focused upon the largely uncontroversial issues concerning “who did what when”.  I say largely uncontroversial because although very few admissions were made by either party in their written evidence about the misconduct alleged against them, in cross-examination both parties, but much more so Mr Norris, admitted most of what was alleged against them.  Imagine how much time, effort, money and emotional energy might have been spared if those matters had been immediately recognised as uncontroversial and the parties’ time, effort, money and emotional energy had been diverted to matters of importance.

5. Ms Massey was not tasked in cross-examination so as to reveal the depth of her understanding of the issues that Mr K had identified in his reports.  Although Mr Norris was questioned about the counselling and other services he might have accessed for himself in an attempt to follow up on the recommendations made by Mr K in his first report, his evidence about these matters was vague and did not touch upon the depth of his understanding of the issues that Mr K had identified in his reports.  To the extent that Mr Norris now suggests that he has engaged with a professional person to provide him with the type of assistance suggested by Mr K in his first report, I do not find his own evidence on those matters probative.  It was vague and lacked specificity where specificity was needed.  Mr Norris has had ample opportunity to provide probative evidence that he has sought the assistance recommended by Mr K and has failed to do so.

6. Despite the very clear opinions expressed by Mr K about the effect of the parents’ conflict upon X, both those that were emergent at the time of the reports and those that had potential to develop in the future, neither party demonstrated any insight into how they might change their behaviour so as to address those issues.

7. Having said that, cross-examination of the parties was illuminating.  Ms Massey demonstrated herself to be a parent who was struggling to co-parent X with Mr Norris.  I formed the impression that she would desperately like to co-parent X with Mr Norris for X’s sake, but it had become all too hard.  She had, by and large, complied with not only the requirements cast upon her by court orders but also by Mr Norris’ unilateral demands.  Her interactions with Mr Norris and his unilateral demands and behaviours have sapped her of the will to keep on trying to establish and improve the co-parenting relationship between she and Mr Norris.  In the circumstances revealed by Mr Norris’ own evidence in cross-examination, that is entirely understandable.

8. There have been times, however, when her behaviour has been less than exemplary.  She has sent text messages that are offensive and abusive of Mr Norris.  In particular she overreacted, I think, to an assertion by X that Mr Norris had treated him roughly in an attempt to discipline him.  She involved the police and the Department of Child Safety.  Nothing came of the matter as far the involvement of the police.  But she persisted with those issues when she thought it would suit her purposes to do so.  She has, however, long before the commencement of this trial abandoned any case that X is at risk of physical harm from his father in reliance upon that episode.

9. Mr Norris’ evidence was remarkable.  He demonstrated himself to be entirely focussed upon himself and his own needs.  His evidence demonstrated that it was only where there was a happy co-incidence between X’s needs and his that X’s interests were advanced.  If they did not coincide, Mr Norris’ needs came first.  His evidence about changeovers in Brisbane was a good example of that. 

10. In cross-examination, Mr Norris conceded:

    a)that he had sent text messages to Ms Massey with the purpose of offending, intimidating, demeaning, embarrassing and threatening her, including one threat to kill her;

    b)that he had made allegations of drug use and possession of utensils for drug use by Ms Massey for the purposes of intimidating Ms Massey in the proceedings;

    c)that he had conducted this litigation and earlier litigation in such a way as to cause distress to Ms Massey, and in particular had asked the Court for orders for X to live with him and he be allowed to relocate his residence to either (omitted) or Brisbane in circumstances where he never intended to move;

    d)that he had written correspondence to the effect that all of the difficulties identified by medical specialists and Mr K were the fault of Ms Massey’s parenting;

    e)that he had deliberately attempted to undermine Ms Massey’s parenting of X “mostly”;

    f)that he had conducted himself in such a way as to attempt to have X align with him and have X form the view that “Ms Massey was the fly in the ointment” when it came to plans that Mr Norris had for X;

    g)that he had unilaterally made decisions to change the arrangements prescribed by court orders, so as to suit his own needs, including his employment needs, without any consideration for the position of Ms Massey or X.

11. Save for one occasion in March, 2015 the parties have not communicated directly (either face to face, or over the telephone) since 13 June, 2013.

12. These parents have been parenting X separately for many years now.  X is parented by Ms Massey in the way she thinks best whilst he lives with her.  He attends the medical practitioners that she chooses for him, attends the extra-curricular activities, including tutoring, that she has organised for him and follows a routine, including the doing of homework that she sets.

13. X is parented by Mr Norris in the way he thinks best whilst he lives with him.  He attends the medical practitioners that he chooses for him, attends the extra-curricular activities, including tutoring, that he has organised for him and follows a routine, whilst he is in his father’s household that is set by his father.

14. The difficulty that this creates for X is patent.  Both parties report that X has said various things to them about what the other party has said to him in the course of their dispute.  In a breath taking example of the father’s insightlessness, he gave evidence in cross-examination that he did not think that X knew anything of the conflict between he and Ms Massey.  He maintained that position, even when I suggested to him that Mr K had identified that X was well aware of the conflict.

15. In his second report, when speaking of his observations of X when he was seen with both of his parents, Mr K says:

    36. X was also relatively quiet and reserved during the joint interview with each parent, but it was very noticeable when he was with his mother that he appeared increasingly uncomfortable, and his behaviour and his answers to questions became increasingly silly. In my opinion, X’s discomfort in the situation was probably directly related to his anxiety about being placed in a situation that directly exposed him to the parental conflict.

    (my emphasis)

Parenting issues

1. Proceedings concerning parenting issues are conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles that underlie those objects. When determining the outcome of a particular case, the best interests of the child or children the subject of the application is the paramount consideration: s.60CA. What is in the best interests of children is worked out according to the matters raised for consideration by s.60CC of the Act.

2. Section 61DA(1) requires the Court to presume that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the major long-term decisions affecting their life. However, ss.61DA(2) and (4) act as mechanisms whereby the presumption may not apply if the Court believes “on reasonable grounds” that one of the parents of the child has engaged in abuse of the child (or another member child of the parent’s family) or family violence (s.61DA(2)), or if the Court considers that it would not be in the child’s best interests for the presumption to apply (s.61DA(4)).

3. If the Court makes an order for equal shared parental responsibility the Court is required to consider whether it is in the child’s best interests, and whether it is reasonably practicable, for an order to be made that the child spend equal time with both parents, in accordance with section 65DAA(1). If it is, the Court should consider making the order for equal time. If it is not, the Court is required to consider whether it is in the child’s best interests, and whether it is reasonable practicable, for an order to be made that the child spend substantial and significant time with each of the parents, in accordance with section 65DAA(2).

4. In Maldera & Orbel [2014] FamCAFC 135 the Full Court of the Family Court of Australia dealt with the role played by s.60B of the Act in the determination of parenting orders. After discussing Wacando v The Commonwealth (1981) 148 CLR 1 the Full Court said:

   76.    ….Thus, we do not agree that in deciding a parenting case it was necessary to discuss the significance and weight of relevant s 60B factors or that where the outcome of s 60CC deliberations did not enable the court to determine a parenting order, s 60B may be decisive.

   77. Section 60B has been significantly amended including by the Family Law Amendment (Shared Parental Responsibility) Act (2006) (Cth) which inserted at the commencement of s 60B the words “The objects of this Part are to ensure that the best interests of children are met by…” These words do no more than reinforce the relationship between s 60B and s 60CC and put beyond doubt that in relation to how a court determines what is in a particular child’s best interests, the facultative provisions are ss 60CA and 60CC and (where it applies) s 65AA. These words do not operate so as to elevate the role of s 60B beyond that envisaged by Wacando. The same must be said about the court’s ability to take into account “any other fact or circumstance” that the court thinks is relevant (s 60CC(3)(m)). Thus, in its current form, s 60B does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operate as an aid to construction of the Part and the Act. It follows that we do not agree that the current s 60B can be used to change the ordinary and clear meaning of s 60CC or that where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, s 60B may be decisive.

5. Section 60CC prescribes the matters that need to be taken into account when determining what orders are in a child’s best interests. It comprises a list of matters that must be considered to the extent that each is relevant to the particular case. Section 60B is important as it provides the context within which the relevant s.60CC factors are to be examined and ultimately weighed.

Consideration

1. The parties’ application and response both evidence an acknowledgement that X will derive a benefit from a meaningful relationship with each of his parents.  Mr K confirmed that X will derive a benefit from a meaningful relationship with each of his parents.

2. Ms Massey submits that there is a need to protect X from an unacceptable risk of emotional or psychological harm by reason of his exposure to the abuse and derogation that she receives from Mr Norris.  She claims that X has been present when this has occurred from time to time.

3. Whilst Mr Norris admits most of the allegations of poor conduct made by Ms Massey against him, he said in cross-examination that X “would not have” heard or seen any of it.  Whilst that might be so since June, 2013 when the parties last spoke I am satisfied that he was exposed to it before then when the parties spent more time meeting face to face.

4. In paragraph 102 of her affidavit filed on 11 March, 2013 Ms Massey gives two examples of conversations that she has had with Mr Norris over the telephone in which he said derogatory things about her and which X must have heard.  I accept her evidence about those conversations.  I accept that X heard his mother being denigrated by Mr Norris and that distressed him.

5. The need to protect X from harm that arises from being exposed to abuse of his mother by his father and the family violence that represents, is something of significance in this case.  Whilst soever X’s parents do not meet face to face the risk is low.  Unless Mr Norris takes steps to deal with his behaviour, when the parents do meet or talk in person (over the telephone for example) the risk of X being exposed to such behaviour by Mr Norris is, in my view, high.  However, neither party’s orders will serve to protect X from the risk that I have identified.

6. Ms Massey claims that X has expressed a wish to spend less time with Mr Norris.  The only evidence that she gives about that is:

   58. X has occasionally expressed a reluctance to spend time with Mr Norris. I cannot recall the exact dates but X has on those occasions said the following:

   (a) “One thing I hate about Tuesdays is going to Dads”.

   (b) “How many more night time sleeps do I have with you before I have go to Dads?”

   (c) “Why do I have to go to Dad’s for such a long time?”

   Ms Massey’s affidavit filed on 11 March, 2015 at [58].

7. She also gives evidence about the anxiety that she has observed in X when he is to go to his father’s care.  I will not set out her evidence contained in paragraphs 37 – 43 of her affidavit filed on 17 November, 2015 save to say that I accept her evidence set out therein.  It is consistent with X feeling pressure from Mr Norris to act in ways expected of him by Mr Norris.

8. Mr Norris points out that in the second family report at paragraph 35 Mr K recorded that X had told him that he was anxious, “when separated from his father ... on changeover days, when he has to go to spend time with his mother”.  As Mr Norris points out, Mr K does not clearly articulate whether the child said that he did not want to spend time with his mother.  However, Mr K did record: “When asked about why he did not want to spend time at his mother’s place ...”.  I accept that those words suggest that X may have had expressed a view about the amount of time he spent at Ms Massey’s home.  However, Mr K explored why X did not want to spend as much time with Ms Massey as he was then doing: “When asked about why he did not want to spend time at his mother’s place he was unclear, but indicted that he didn’t have as much fun there, that she makes him do too much homework, and that she is too critical of his handwriting”.

9. Whilst I accept Ms Massey’s evidence about what she describes as X’s wishes, the alleged statements are not put in context by her evidence.  The circumstances in which the statements are made are not in evidence.  It is difficult to know in those circumstances what was meant by the words that were said.  Context is important. There is no context.

10. Further, given Mr K’s observations about X’s reasons for wishing to spend less time with his mother, in my view, those wishes should attract no weight.  The reasons expressed by X demonstrate a lack of mature reflection on X’s part.

11. Ms Massey alleges that X has a loving and warm relationship with she and her own mother, X’s maternal grandmother.  Whilst I accept that is her impression, I do not propose to give her self-serving opinions any weight.  So too, the evidence of Mr Norris about his relationship with X.  I have no doubt that he considers that he has a warm, loving and close relationship with X.

12. In his first report made in December, 2014 Mr K noted that:

    …it was difficult to assess the strength of X’s attachment with each parent as he remained quiet and withdrawn when interacting with his parents during the joint interview is. Overall, however, he appeared relatively comfortable in the presence of each other, and there was no indication that his anxiety increased or that he became more withdrawn when he was with them.

13. According to Mr K’s second report, X has a close attachment with both of his parents.  Neither party disputes this finding.  I accept his evidence.  However, in his second report, he also says:

    X clearly has a close attachment to both parents, but he has become increasingly aligned with his father in the parental conflict, so any reduction of contact with his father might create significant problems for him.  If there is any change in the contact arrangements I think it is important that X have access to counselling to help him adjust to these changes.

14. The emphasised part of the paragraph that I have just extracted was not explored by either party to the proceedings. Counsel for the Independent Children’s Lawyer did not seek leave to lead any evidence that expands upon that evidence. 

1. Mr K thought the alignment between X and his father to be of significant concern.  He identified a “significant risk” in the future that X’s increased alignment with Mr Norris in the parental conflict may lead to increasing emotional problems for X, along with relationship issues between him and Ms Massey.  Mr K expressed the view in answer to questions from Ms Massey’s counsel that it would not be in X’s best interests if he became aligned with one parent in preference to the other.  According to Mr Norris’ own evidence, his conduct was designed to have X align with him in preference to his mother.  It seems his conduct is working.

2. However, Mr K’s evidence was that a reduction in time between X and his father might create significant problems for X.  What those significant problems might be was not explored in the evidence.  How significant they might be was not explored.

3. What I can infer from the evidence, I think, is that the alignment of X with his father is not so much a function of the time for which X lives with his parents pursuant to the current orders, but rather a function of the attitude of Mr Norris to the relationship that X has with his mother and the respect that Mr Norris has for that relationship and X’s right to it.  On his own evidence he has sought to undermine that relationship.  It is the things that Mr Norris says and does while X is in his care that are important.  The time which X spends with his father under the current orders presents the opportunity for that undermining to occur more frequently and regularly than the orders sought by Ms Massey would permit.

4. One matter that needs to be considered according to s. 60CC(3)(c) of the Act is:

   the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long‑term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

5. In the context of this case, this factor has little work to do.  Both parties have made plenty of decisions concerning X’s care, welfare and development.  The difficulty is that despite an order for equal shared parental responsibility, neither parent has undertaken what is required of them by that order.  Neither has offered the other, in any meaningful or practical way, the opportunity to participate in decision making about major long-term issues for X.  There is one exception.  They were able to agree upon his current school.  It is also suggested that they have also recently agreed about X’s high school.  But the agreement is more illusory than real.  There is yet no agreement because any agreement is dependent upon the parties agreeing about the funding arrangements for X’s attendance at the particular school identified by Mr Norris. But, at least they are communicating about that.

6. Both have taken up, I am satisfied, every opportunity to spend time with and communicate with X that has been made available to them.

7. Both of these parents have fulfilled their obligations to maintain X.  There is difficulty between them about child support.  But those difficulties are just another product of Mr Norris’ desire to control and manipulate Ms Massey.  The necessary consequence of that is that she has not had as much by way of financial support for X from Mr Norris as might be desired.  He earns considerably more than she does, but yet he has insisted on child support arrangements that reflect and take into account his payment of X’s modest school fees.

8. There was no examination of the impact upon X of the likely effect of any changes in his circumstances.  Inferentially it is said by Ms Massey that the changes that she seeks would see X more settled in her care.  His routine would be better and she could attend to his needs on a consistent basis, not in parallel as it were, with Mr Norris making his own arrangements for X.  Her orders would reduce the opportunity for the aligning and undermining behaviours of Mr Norris so as to preserve X’s relationship with her rather than see it be adversely affected as Mr K suggests it might be.  In that sense, her orders would bring more benefit to X.

9. Conversely, Mr Norris argues that X’s relationship with him would be adversely affected if the time between he and X was reduced as Ms Massey seeks. Having regard to Mr K’s evidence about the nature of the relationship between Mr Norris and X, and his own concessions about the purpose of his conduct, there would be benefit to X in such a reduction.

10. I am satisfied that both of these parents are able to meet X’s physical needs.  Both have demonstrated an ability to do so in the past and I expect that whatever orders might be made, they will continue to do so in the future. 

11. Much was sought to be made in these proceedings about X’s school performance as reflected in his report cards.  I draw very little from that evidence.  It is, in my view, of no particular moment.  But it is of some consequence that both parties seem to have a different view about the value of education.  Ms Massey is of the view that X’s education is important.  She suggests that Mr Norris places less value on education for X than she does.  I think she is correct. In her evidence set out at paragraph 62 of her March, 2015 affidavit, Ms Massey’s says:

    62.    … On 8 March 2013 at 3:49pm Mr Norris sent me two text messages stating as follows:

    (a) “Wats education got u n yr family?? As I said where’s yr super n investments at.  Hilarious!! Hahahaha how’s yr boyfriend goin with his income, must make U feel shame hahaha”

    (b) “I operate (omitted) n i’m skilled at doin my job. Yr the dumb arse with a cereal box degree that can’t earn more than me n I didn’t even finish yr 12! Hahaha now that is hilarious! How does that make u n yr family feel. Still tryin to climb that tree. Look up, you might see me! Hahaha. How’s yr super and investment properties goin??? Hahahaha who’s the dumb one now???”

12. Whilst I do not think that Mr Norris would neglect X’s education, he certainly places a different emphasis on it than Ms Massey does.

13. I am satisfied that Ms Massey has a proper capacity to meet X’s emotional needs.  Her conduct reveals that she understands the importance of X’s relationship with his father.  She has, I am satisfied, fostered, encouraged and facilitated that relationship notwithstanding the very great barriers that Mr Norris has put in her way.  That is to say, despite his bad behaviour towards her, despite his undermining conduct, despite his unilateral decision making concerning the operation of the orders that are in place and despite all of the demands that he has made of her, she has nonetheless ensured that X has spent time with Mr Norris.  Whilst there have been some difficulties, I am satisfied that none are of her making and all of them are attributable to Mr Norris’ unilateral demands and changes to the arrangements for X.

14. On the other hand, Mr Norris has an impaired capacity to meet X’s emotional needs.  I have already referred to his conduct above.  To deliberately set about undermining X’s relationship with his mother and to have X align with him demonstrates a considerable impairment in Mr Norris’ capacity to meet X’s emotional needs.  For example on 17 September, 2013 Mr Norris sent Ms Massey a letter about him no longer living in (omitted).  He pointed out that he would not be able to have X in his care over the upcoming holidays.  He made demands of Ms Massey.  He said he had told X of the situation and he would inform X of any response made by Ms Massey.  He sent a later email on 5 October, 2013 concerning the same issues and included a handwritten paragraph from X.  The involvement of X in these matters is appalling. 

15. Cultural issues were raised in these proceedings as being of some importance.  Both parties, I am satisfied, will ensure that X’s cultural background is respected and his understanding of that background fostered. 

16. Section 60CC(3)(l) requires the Court to consider 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. I would venture to say that it is always preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child who is the subject of proceedings. But having regard to the history of litigation between the parties and their present attitudes towards each other as revealed in their evidence, it is unlikely that there are any orders that could be made that would be least likely to lead to further litigation over X. They seem intent upon litigating their various points of view ad infinitum and without any regard for X.

Conclusions

1. I am satisfied that s.61DA(2) of the Act is engaged. The presumption of equal shared parental responsibility does not apply. I find that there are reasonable grounds to believe that Mr Norris has engaged in the family violence directed towards Ms Massey. The violence is the admitted threat that Mr Norris made to Ms Massey that he would kill her.

2. Nonetheless, Mr Norris and the ICL seek an order that the parents have equal shared parental responsibility for X.

3. I am persuaded by Mr K’s evidence that the communication difficulties between the parties and the conflict between them means that one parent should have responsibility for making decisions concerning major long term issues for X.  I agree.  The current situation is unworkable.  Mr Norris has demonstrated that he has no interest in properly engaging with Ms Massey so as to make decisions concerning major long term issues for X.  I accept that when Ms Massey has attempted to engage with Mr Norris about matters needing decision for X, such as his tutoring and his eye health, she has received nothing helpful from him.  At times, Mr Norris has blamed Ms Massey for X’s problems, particularly his academic and social problems.

4. I am satisfied that Ms Massey should be responsible for all decisions concerning major long term issues for X.  She is likely to make decisions that are more aligned with X’s needs and informed only by his best interests than is Mr Norris.  He is motivated by his own self-interest.  There is a real risk, I think, that if left to him, decisions for X will not only be informed by X’s best interests, but also his own self-interest and the conflict that he has with Ms Massey. Whilst I appreciate that will mean that X will not have the benefit of input from his father into those decisions that need to be made for him, that is a preferable course than continuing to have him exposed to two parents that in conflict and one who will not engage with the other in a positive way for X’s welfare.

5. Further, in my view, X should spend time with Mr Norris in accordance with the proposals of Ms Massey.  Whilst that will reduce the time that X has with his father, in my view, that is in his best interests because:

   a)even with the reduced time, a meaningful relationship can be maintained between X and his father;

   b)reduced time will reduce the opportunity for X to be exposed to the negative effects of the conflict that Mr Norris perpetuates with Ms Massey;

   c)reduced time will reduce the opportunity for X to be exposed to the negative views held by Mr Norris  about Ms Massey;

   d)X’s emotional wellbeing will be better cared for because he will have less exposure to Mr Norris’ propensity to involve X in the disputes between he and Ms Massey;

   e)X’s routine will be more settled because having vested sole parental responsibility in Ms Massey, Mr Norris will have to ensure that the extracurricular activities decided upon by Ms Massey are attended by X.

6. I have considered an alternate proposal that X spend longer weekend time than that proposed by Ms Massey with Mr Norris.  In my view that is not appropriate because the increased time will provide more opportunity for the matters I have referred to in paragraph 72 b) and c) to occur.  Shorter time with Mr Norris will increase the prospect that X will attend the extra-curricular activities designated by Ms Massey.

7. In my view the school holiday orders proposed by Ms Massey better meet the needs of X because he will be able to spend unbroken time with her over school holiday periods.  On Mr Norris proposal, there is a real chance that X’s time with his mother will be fragmented (although not his time with his father).

8. I accept Mr K’s evidence that X will need support to manage the reduction in time with Mr Norris.  I will make the orders proposed by Ms Massey to cater for that.

9. Finally, Mr Norris argues that although there have been considerable difficulties in the past between the parties with respect to communication, he has commenced addressing those issues and that whatever problems there have been in the past will not recur.

10. I reject his argument about that because:

    a)I am not satisfied that he has in fact commenced addressing the issues of communication with Ms Massey as he alleges; and

    b)the issues that Mr Norris has with Ms Massey go far beyond matters of communication. His conduct towards her demonstrates a profound lack of respect for her, for her role as X’s mother and for X’s relationship with her.  It is difficult to see how his communication with Ms Massey might improve whilst those attitudes persist.

11. Ms Massey seeks a range of other orders concerning the parties’ communication and travel.  No issue was taken with those orders and they are appropriate in the circumstances.

12. I make the orders set out at the commencement of these reasons.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  4 December 2015