Masters and Faber
[2013] FCCA 15
•19 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MASTERS & FABER | [2013] FCCA 15 |
| Catchwords: FAMILY LAW – Parenting – high conflict – low trust – no communication – why is substantial and significant time appropriate when equal time is not? |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 60B, 61DA, 65DAA. |
| Cases cited: Collu & Rinaldo [2010] FAMCAFC 53 Klein & Klein [2010] FamCAFC 150 MRR v GR [2010] HCA 4 |
| Applicant: | MR MASTERS |
| Respondent: | MS FABER |
| File Number: | SYC 7257 of 2011 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 5 to 7 December 2012, 7 February 2013 and 4 April 2013 |
| Date of Last Submission: | 4 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 19 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blackah on 5 to 7 December 2012 |
| Counsel for the Respondent: | Ms Sloan on 5 to 7 December 2012 |
| Solicitors for the Respondent: | Marsdens Law Group |
| Counsel for the Independent Children’s Lawyer: | Ms Murphy on 5 to 7 December 2012 and Ms Court on 7 February and 4 April 2013 |
| Independent Children’s Lawyer: | John Spence & Associates |
ORDERS
The parties have equal shared parental responsibility for the child [X] born [in] 2008.
The child [X] live with the mother when not living with the father in accordance with these orders.
That the child [X] live and communicate with the father:
(a)Until the end of the first term school holidays in 2014 each alternate weekend from after school Thursday to the commencement of school on Monday in Week 1 commencing the first Thursday after the date of these orders; and
(b)Each alternate Thursday from after school to the commencement of school Friday, commencing the second Thursday after the date of these orders and
(c)Thereafter from commencement of second term 2014 and during school terms:
(i)each alternate weekend from after school Thursday to the following Monday morning in Week 1; and
(ii)each alternate Wednesday to the following Friday before school in Week 2.
(d)For half of the first, second and third term school holidays as agreed or in the absence of agreement, for the first half in even-numbered years and the second half in odd-numbered years.
(e)For two weeks in the 2013/2014 school holidays and thereafter half the Christmas holidays as agreed, and in the absence of agreement, the first half in even years and the second half in odd years, excluding the Christmas public holiday period.
(f)From after school Easter Thursday until 6pm Easter Saturday in even years and from 6pm Easter Saturday until 6pm Easter Monday in odd years.
(g)By telephone on Tuesday at 6pm when the child is not with the Father.
(h)During the Christmas public holiday period as agreed or failing agreement, from 12 noon Christmas Eve to 2pm Christmas Day in even-numbered years and from 2pm Christmas Day to 6pm Boxing Day in odd-numbered years.
(i)On Father’s Day, if not already spending time with the child, from 9am to 6pm.
(j)On [X]’s birthday as agreed or failing agreement from 3pm to 6pm.
That the father’s time be suspended on Mother’s Day from 9am to 6pm.
That the father’s time be suspended from after school Easter Thursday until 6pm Easter Saturday in odd numbered years and from 6pm Easter Saturday to 6pm Easter Monday in even numbered years.
That for the purposes of calculating the child’s time with the parent in accordance with Order 3, the school holidays will be deemed to commence on the last day of the school term and conclude on the day before the commencement of the school term at 5pm and time on the weekend and during the week as provided for in these orders will be suspended during school holidays.
That for the purposes of implementing these Orders, unless otherwise stated, the child will be collected from and returned to the child’s preschool or school and where the child’s preschool or school is not available, at an agreed venue between the parties or in the absence of agreement at the [omitted] swimming pool and park area at [omitted].
That each party shall seek the other’s consent for any overseas travel and shall give no less than three (3) months’ notice to the other party and provision thereof a minimum of 14 days before travel and evidence of return air tickets, proposed itinerary and telephone contact details overseas.
The mother shall retain the child’s passport and shall provide the passport to the father within a reasonable time of any proposed travel as agreed, or in the absence of agreement, 28 days prior to the proposed travel and the father shall return the passport to the mother on return from any overseas trip with the child.
That both parties will use their best endeavours to ensure that the child is not exposed to cigarette smoking in enclosed environments.
Neither party will denigrate the other or allow third parties to denigrate the other in the presence or hearing of the child. Both parties will be civil to each other at all times in [X]’s presence or in her vicinity.
That each parent ensure that [X] has appropriate separate bedding whenever she lives with them.
That the father ensure that he is always appropriately clothed when in the presence or vicinity of [X].
Neither party will make an appointment for the child to meet with a psychiatrist or psychologist without the other party’s written consent or Order of the Court.
The mother will provide such authority as may be required to the child’s school to enable the father to obtain a copy of the child’s school reports, school newsletters and such other information as may relate to the child’s progress and participation at school and both parents are entitled to attend events at school or outside school involving [X] to which parents are normally invited.
Both parties will (if they have not already done so) attend as soon as practicable Keeping Kids in Mind Program conducted by both Unifam and Centacare, and will forward to the other party a copy of Certificate of Completion.
Each party will provide the other with a contact telephone number and will advise the other party within forty-eight (48) hours of any change in telephone contact number.
That both parents shall forthwith attend upon Mr G, Clinical Psychologist, with respect to implementation of these Orders and the ongoing shared parenting of [X], and shall have leave to provide to
Mr G a copy of the report of Dr M dated 29 October 2012 and a copy of these reasons.
Each party will advise the other as soon as practicable of any medical emergency involving the child, including the name of treating doctor, details of hospitalisation, if any, and details as to medication.
That the mother shall forthwith attend upon her general practitioner forthwith and obtain a referral to a psychiatrist for advice and treatment and shall provide to the said psychiatrist a copy of the report of Dr M dated 29 October 2012 and a copy of these reasons.
IT IS NOTED that publication of this judgment under the pseudonym Masters & Faber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7257 of 2011
| MR MASTERS |
Applicant
And
| MS FABER |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about [X] and how her time is to be divided as between her two parents. [X] is nearly five (5) years old. Regrettably for [X], a considerable part of her life to date has involved her parents being in conflict with each other in relation to the arrangement which they considered to be in her best interests.
The applicant in these proceedings is [X]’s father. He is 40 years old, describes himself as currently working as an [occupation omitted], but he is a fully qualified [omitted]. The respondent is [X]’s mother. She is 40 years old and describes herself as an [occupation omitted]. [X]’s parents commenced cohabitation in about 2004, married in 2006, separated in February 2011, albeit under the same roof, and the father moved out of the home in October 2011. In November 2011, the father commenced the present proceedings. At the time, he sought sole parental responsibility, that [X] live with him, and spend weekends with her mother. When a response was filed by the mother in December, she too sought sole parental responsibility, that [X] live with her, and spend time with the father alternate weekends and for a night during the week.
As will become apparent from the reasons below, and as is manifest from the polarised positions adopted by the parents in their application and response at the time of filing, the parents are locked in an intense, and intractable, conflict about each other, their relationship, and what is best for their daughter. [X]’s parents do not trust each other, communicate very poorly, and struggle to manage the conflict that exists between them. They both seem totally oblivious to the impact on [X] of their behaviour. The hearing was thought to have been concluded on 7 December 2012, but on 29 January 2013, before reasons for judgment were delivered, the mother filed an application in a case arising out of an incident on 3 January 2013. The details of this will be discussed below.
Background
On 19 December 2011, orders were made by consent providing for [X] to live with her mother and spend time with her father each alternate weekend from 5 pm Friday to 5 pm Saturday, and each alternate Tuesday from 5 pm to 9 am Wednesday. By 13 February 2012, the parents agreed to extend the father’s time. Thus, commencing 24 February 2012 and each alternate weekend thereafter, [X] was to spend time with him from Friday afternoon until Monday morning, and then commencing on 16 February 2012, every second Thursday from 9 am until the following Friday morning, and every alternate Wednesday from 9 am until the following Thursday. In other words, the parents agreed that as from 16 February 2012, [X] would spend, in effect, five nights each fortnight with her father. That was the parenting order that applied up until the orders made in the present reasons. This arrangement meant there were six (6) transitions for [X].
By the time of closing submissions, the father’s proposal was that there be equal shared parental responsibility and that [X] live with him on an equal time basis. The Independent Children’s Lawyer proposed, and the mother agreed, that there should be equal shared parental responsibility, that [X] should live with her when not living with the father, and that [X] live with the father each alternate weekend from after school Thursday to the commencement of school on Monday in week one, and each alternate Thursday from after school to the commencement of school on Friday in week two, up until the end of the midyear school holidays in 2013. This provided, in effect, for five nights each fortnight with the father. However, as from the conclusion of the midyear school holidays in 2013, [X] would live with her father each alternate weekend from after school Thursday to the commencement of school on Monday morning in week one, and each alternate Wednesday after school to the commencement of school on Friday in week two. The effect of this was to increase [X]’s time with her father to six nights each fortnight.
In closing submissions, the Independent Children’s Lawyer submitted, and was supported by the mother in this regard, that it was open to the court to postpone the introduction of additional time for a longer period.
In the mother’s application in a case filed 21 January 2013, and then amended on 28 March 2013, she proposed that the father’s time with [X] be limited to a few hours weekly, supervised at a supervised contact centre.
The evidence in this case consisted of three affidavits sworn by the father, and one by the paternal grandfather, both of whom gave evidence. The mother relied on the three affidavits that she had sworn, and she was cross-examined. Dr M was the court-appointed child, family, and adult psychiatrist. His report is dated 29 October 2012 and he too gave evidence. This case raises a number of important issues for [X].
When the proceedings were re-opened as a result of the mother’s application in a case, each parent relied on further affidavits.
Issues
In a case like this where there is such a small difference between the proposals advanced by the parties, the focus turns to just a few considerations that ultimately inform the decision. For example, having regard to the competing proposals there is no issue about meaningful relationship (section 60CC(2)(a)). During the substantive hearing, there was no issue about protecting the child from harm (section 60CC(2)(b)) but this now arises as a result of the alleged incident on 3 January 2013. Having regard to the age of the child, there is no issue about her views (section 60CC(3)(a)). In any event, to the extent that the child has expressed views, as dutifully reported by each parent in their evidence, no weight should be placed on these purported expressions of views because of the context of intense conflict between the parents of which the child was clearly aware. There is no issue about the nature of the child’s relationships (section 60CC(3)(b)) as no proposal would affect these relationships in any significant way. Even in the father’s case, it was not seriously contended on any objective basis that his relationship with [X] would change if his proposal were accepted as opposed to that of the mother or Independent Children’s Lawyer, or vice versa.
The likely effect of change on the child is a relatively minor consideration given that even the mother conceded (until the January incident) that [X] should spend more time with her father (section 60CC(3)(d)). There are no issues of practical difficulty and expense that arise on the facts (section 60CC(3)(e)). As will be seen, (but for the January incident) even the family violence in this case (section 60CC(3)(j) and (k)) is not determinative because of its nature, i.e., it was of low potency, did not follow a pattern, and in any event was perpetrated by both parents.
The real focus, therefore, is on the parents. Past events, and the evidence given by the parents, need to be critically examined to see what can be discerned about matters such as willingness and ability to encourage relationships (section 60CC(3)(c)), capacity to provide for the children’s needs (section 60CC(3)(f)), maturity, lifestyle, and background (section 60CC(3)(g)), and parental attitudes (section 60CC(3)(h)). Moreover, and depending on the order made about parental responsibility, section 65DAA has a particular significance as one way of understanding the differences in the proposals is to consider the appropriateness of equal time, or substantial and significant time. A particular issue in this regard is the concept of reasonable practicality in section 65DAA(5).
The Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII (as it was in place at the time these proceedings commenced) are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC (as it was when the proceedings were commenced) which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(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;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Evidence of Dr M
Dr M is a child, family, and adult psychiatrist who prepared a chapter 15 court expert’s report dated 29 October 2012. Dr M had the benefit of interviews with both parents and [X], as well as access to the documents that had been filed in the proceedings as at the time of the interviews. He was not aware, however, of the January incident. When he interviewed the mother, he noted at paragraph 18:
“Her manner was generally subdued. Her affect (emotional responsiveness) was flat and restricted. She, however, became angry and raised her voice at the conclusion of the assessment when seen together with the father. Her manner was lighter when interacting with her daughter, consistently responding to her needs. She acknowledged anxious mood in the context of the current proceedings and assessment. She denied any current symptoms of depression. Her thoughts were well organised in form and content.”
In relation to the father, at paragraph 36 he recorded that:
“The father described himself as an emotionally stable, optimistic and happy person. He acknowledged that at times he could be impatient and somewhat narcissistic. At times, he would procrastinate and go slow. Generally, he was easygoing. He specifically rejected any assertion that he had an anger management problem or that he had any problems with speeding as a driver.”
In relation to [X], Dr M found her, at paragraph 41 of his report, to be:
“Highly engaging in her manner. She presented in a bright and confident fashion, leading the mother to take her to the toilet and then to my office. In contrast, her mother was subdued and hesitant.”
At paragraph 42, he recorded [X]’s description of her father in the following terms:
“My daddy is grumpy, because he’s big. And my mum is a scared face…”
She went on to describe herself as happy, indeed:
“The happiest in the family.”
At paragraph 45, Dr M notes:
“She identified an angry face. Her dad was the angriest in the family: ‘He just bees angry with my mum. He wants to stay with me forever and ever.’”
At paragraph 48, Dr M records:
“She identified herself and [Ms Faber] as feeling worried and nervous: ‘Because my dad tries to get things that we’re trying to get. What happens is [Mr Masters] bees mean to [Ms Faber] and is fighting because he wants me forever.’”
The observations between [X] and her father were described by Dr M to be delightful and playful.
In describing the father’s approach to the report interviews, at paragraph 65, Dr M observes that the father referred to his notes as his “submissions”. At paragraph 69, the father acknowledged to Dr M a longstanding conflictual marital relationship, but denied that there had been significant ongoing problems in their interactions. The father referred, at paragraph 73, to the mother’s “insane behaviour” and to her “persistent embellishment and lies” which contrasted with his consistent honesty.
Dr M saw the parents together, and his observations in this regard are set out at paragraphs 83-86 inclusive, which are reproduced below:-
83. The change in [X]’s day care arrangements was explored. The mother acknowledged having relocated [X] following the separation due to fear that the father would snatch her. There were no Orders in place and the father was acting in a threatening manner at the time.
84. With regard to school readiness, [X] was being prepared for school the following year. She engaged in appropriate activities and was toilet trained. In the mother’s view, [X] had stress related regression subsequent to the parental separation. She had previously been fully dry at night; this was no longer the case. The father did not accept this.
85. The mother was supportive of [X] commencing school next year. A discussion was held with regard to the choice of school. Although she had previously proposed [A], this was no longer an option due to lack of available places. [B] was discussed as an alternative. Both parents were in agreement that this would be a suitable placement. The father understood that she had a close friend at the school. He had explored the academic structure. This involved a single stream, with 30 kids in each class and two roving teachers. He then proposed [S] primary school as providing [X] with the best opportunities. The mother became acutely distressed in response. She highlighted that [X] had no friends at this school or in the area. She then exclaimed: “I am not talking to you anymore. I just want her to be happy. I am not going to talk about it anymore.” This was in response to the father’s discussion of the school placement in a thoughtful and reasoned manner.
86. The mother stated that [S] was too far from where they lived. She wanted [X] to go to a Catholic school. That was where her friends were going. She was unwilling to discuss any other school. She screamed at the father: “Can we finish this off!”
This event is significant because the father submitted that their ability to reach agreement about a school for [X] was an example of the parents’ ability to cooperate and communicate. Of course, this ignores the context of an important discussion that was, for all practical purposes, facilitated by Dr M in a forensic setting and which ultimately resulted in the mother screaming at the father. The father’s submission about this issue actually provides some insight into his selective interpretation of events, and minimalisation of the parental conflict.
At paragraph 99, Dr M records the following observation:
“At the conclusion of the assessment, [X] became tearful and clingy. She refused to let go of her father when it was time to say goodbye. She had a great deal of difficulty in separating from him. She exhibited regressed behaviour as previously described by the mother and pre-school. She spoke in an immature, “baby voice”: “[X] wants to stay and play. [X] wants Daddy.” The mother commented in response: “He has told her that he wants her to live with him on his own.” When the mother went to take [X] from the father, she exclaimed: “But [X] wants Daddy.”
Dr M’s opinion commences from paragraph 108. He noted how [X] had received excellent support and care from both her parents and members of the extended family network. [X] clearly identified her love and positive connection with each of her parents. However, at the conclusion of the assessment, she became regressed and resorted to baby talk, consistent with the mother’s assertions, and as reported to Dr M by [X]’s preschool director. At paragraph 110, Dr M categorically states:
“There was no doubt that she had been affected by the longstanding and unresolvable parental conflict.”
Based on all the evidence before the court, this is an inescapable conclusion. Only the parents seem oblivious to this. He goes on to describe [X]’s regression at the conclusion of the assessment as consistent with separation anxiety. Dr M says:
“This highlighted her vulnerability in the context of the parental separation and persistent parental conflict.”
At paragraph 12, he records that [X] would continue to benefit from significant and substantive contact with each parent, and that both parents had adequate capacity to attend to the child’s emotional and intellectual needs, even though they approach these tasks in a different manner. The mother had a longstanding vulnerability to anxiety and depression which, when added with her alleged experience of the father, amplified her concerns for [X]’s safety. Dr M asserted, however, that some of the mother’s concerns about [X] were “likely to have been exaggerated by her own emotional vulnerability” (paragraph 113).
At paragraph 114, Dr M emphasises the link between the mother’s anxiety, and [X]’s emotional distress:
“[X]’s emotional distress on separation from her mother at pre-school would have been reinforced by the mother’s anxiety and reassurance, as she was unable to follow the staff’s instruction to vacate the premises promptly to enable [X] to settle. The mother’s anxiety would also impact upon her ability to effectively manage [X]’s regression following the parental separation. Separation Anxiety was evident, as exhibited in [X]’s difficulty in separating at night and at pre-school, her use of baby talk and exacerbation of bedwetting.”
In relation to the father, Dr M states at paragraph 115:
“In contrast, the father was seen to be more controlled and narcissistic in his approach. He did not respect the mother’s views. His lack of respect for her extended family and Lebanese heritage was problematic. This is likely to impede his ability to encourage [X]’s respect and identification with her heritage, despite his assertion that [X] had not been exposed to his views. This impacted upon his consideration of her school placement. This highlighted the effect of such views. Further, the father’s narcissistic approach impeded his ability to respect the views and experience of the mother and other parties, such as her treating psychologist and psychiatrist.”
In relation to the father, the court had, of course, the opportunity to see and hear the father during the court proceeding. It is possible that Dr M has not fully appreciated the extent of the father’s narcissism. Indeed, based on all the evidence before the court, if there were 50 shades of narcissism, the father’s would be very dark indeed.
At paragraphs 116-119, Dr M expresses the opinion that:
116. Despite these concerning family dynamics, I did not form the view that the child was at risk of physical or psychological harm in either household.
117. Both parents expressed an appropriate attitude to the child and to the responsibilities of parenthood. Although as stated this was impacted upon by the parents’ critical appraisal of each other, which had extended to a general lack of trust and goodwill.
118. Although the exact nature of the family violence was disputed, it was my conclusion that [X] had been exposed to longstanding parental conflict. This would have promoted her insecurity, as observed at home with the mother, at pre-school and during the assessment.
119. Both parties had repeatedly contacted the police due to the parental conflict. Although each alleged to be the victims of domestic violence, I shared the view of the police and Mr G that this was motivated by positioning leading up to their separation and subsequent Family Court proceedings. I did not form the view that either party truly regarded themselves as at risk, despite the mother’s dramatic assertions at the conclusion of the assessment.
Based on all the evidence, the court accepts paragraph 116. The court does not accept paragraph 117 and, as will be seen, is quite critical of each parent’s attitude to [X] and to the responsibilities of parenthood, but particularly the father in this regard. As it turns out, the court agrees with Dr M’s assessment about family violence at paragraphs 118 and 119. The court finds, based on all the evidence, that the violence was of low intensity, did not follow a pattern, and was perpetrated as much by the mother, as the father. Both parents were prepared to use the police, and both parents exaggerate the risk issues.
At paragraph 122, Dr M concludes:
“I formed the opinion that [X] would benefit from ongoing significant and substantive contact with both parents. It would be inappropriate for [X] to have her contact with her father to be reduced from the present amount. Similarly, it would be inappropriate for [X] to be removed from her mother’s care and placed with her father, as proposed by him. A rapid transition to a week about shared care arrangement would also be problematic, given [X]’s regression due to the stress of the current family circumstances. If this was to occur this would need to be implemented in a gradual fashion.”
He then goes on to deal with the issue of the mother’s anxiety, and at paragraphs 123 and 124 states:
123. It was acknowledged that the mother continues to experience substantive Anxiety. It was pleasing that she has the support of Mr G. The mother identified that she continued to benefit from attendance. Should she continue to have significant Anxiety symptoms which remain unabated despite psychological support, I would recommend that a trial of Selective Serotonin Reuptake Inhibitor, such as sertraline (Zoloft), should be considered; however, respected the mother’s view that she did not wish to pursue this at this stage. I did not identify sufficient symptoms to indicate that such treatment was required, but viewed it as potentially beneficial.
124. The father acknowledged that Mr G had previously been of assistance to the couple. It was agreed that if the parents required ongoing psychological support and counselling he would be an appropriate choice of therapist. It was the recommendation of the assessor that such an intervention is likely to continue to be of assistance in leading up to the establishment of stable residential arrangements.
Dr M was cross-examined by counsel for the Independent Children’s Lawyer, and counsel for the father. He described the parental conflict as not just longstanding, but ongoing. He suggested that the indicia for an ongoing volatile relationship was plainly there, but might be mitigated by avoiding contact between the parents, particularly at changeover, as well as the resolution of these proceedings. He was very careful to say that there were many indicators in this case that optimism was not warranted. As will be seen below, the January incident certainly confirmed this. Dr M, in cross-examination, was able to articulate a deeper concern about the mother’s anxiety, particularly arising out of the descriptions of [X]’s behaviour contained in the mother’s last affidavit. The affidavit in question described regressive behaviours in [X]. Dr M attributed this to an escalation in the mother’s anxiety, at least in part attributable to the proceedings before the court. He explained that [X] responds to her mother’s changed mental state. He did not rule out, however, the possibility that [X]’s regression was linked to experiencing longer periods of separation from her mother.
Dr M clearly favoured a parenting arrangement that involved less changeovers between the parents, or at least changeovers that did not involve the parents coming into contact with each other. Whilst an increase in [X]’s time with her father was indicated, he acknowledged that it was difficult to predict its impact on [X] because there were so many variables, perhaps the most significant of which was the mother’s ability to cope due to her longstanding and reactive vulnerability, her depression and anxious mood, and her personality. He described the mother’s chronic depressed mood as characterological in nature, rather than reactive. Despite this, Dr M did not consider [X] to be at risk in her mother’s care, though acknowledged that she had a greater vulnerability which might manifest itself in more regressed behaviour. It was essential, from Dr M’s perspective, that the mother have ongoing treatment and support. An order is needed in this regard. The court is not satisfied that the mother accepts Dr M’s views on this issue.
Counsel for the Independent Children’s Lawyer specifically asked
Dr M about the possibility of shared care in the future. Dr M expressed himself in guarded terms. He hoped it would be possible. He acknowledged that [X] would benefit from it. However, the key variables included stabilisation of her developmental experience, an improvement in the mother’s mental health, a regulation of the parental conflict, and a minimisation of changeovers involving the parents. If all of these variables could be dealt with satisfactorily, then shared care may be possible, though he thought the parents had “a long way to go”.
When Dr M was cross-examined by Mr Blackah, counsel for the father, Dr M had another opportunity to express his concerns about the mother’s mental health because of the evidence the mother gave about [X]’s regression in the months leading up to the hearing. As previously indicated, he clearly linked [X]’s regression to the mother’s anxiety. He repeated that [X]’s experience of a stressful home environment with her mother made her more vulnerable emotionally, but again, would not acknowledge that she was at risk. Dr M acknowledged that the mother probably was depressed, and was wrong in denying it. This is another reason for ordering the mother to seek treatment.
Dr M would not accept the proposition that the mother was wanting to have an exclusive relationship with [X]. Indeed, the court agrees. It is a proposition that is fundamentally inconsistent with the mother’s own proposal to the court. However, Dr M frankly acknowledged that the mother has difficulty in supporting [X]’s relationship with her father. When challenged about why he recommended that [X] live primarily with the mother, Dr M expressed that he found the mother to be [X]’s primary attachment figure, ie. [X]’s primary carer over the years, though it was important to recognise that this did not exclude the father’s role. Indeed, whilst the mother may have had a primary care role historically, he acknowledged that this may no longer be the case.
At numerous times in cross-examination it was put to Dr M, and he firmly rejected, the proposal that in order for the father’s relationship to [X] to prosper, there would need to be equal time. Dr M repeatedly said that equal time was not necessary in order to establish a significant relationship. Indeed, he did not see the need to increase the father’s time from five nights out of 14 in order to achieve this significant relationship. He thought that before equal time could be considered, there would need to be minimal conflict between the parents, an ability to cooperate, an ability to absorb and deal with each other’s different perspectives, and an ability to communicate. He said that in this relationship, these attributes were limited and problematic. He thus had concerns about equal time and the potential impact on the mother of even increasing time.
The court accepts Dr M’s evidence almost in its entirety. Having regard to all the evidence before the court, it is likely that Dr M has not fully appreciated the nature and extent of the father’s narcissism and the way that this permeates his attitude towards the mother and [X]. Indeed,
Dr M may have been generally more optimistic about the prospects for the parent than the court is.
The January 2013 incident
On 21 January 2013 after the hearing had concluded, but before reasons were published, the mother, representing herself, filed an Application in a Case seeking orders for supervised time at a contact centre between [X] and the father. This was supported by her affidavit sworn 11 January 2013 in which she deposed to the Police taking out an ADVO on her behalf on 3 January 2013 as a result of comments the Police allege the father made to them. The mother deposed to being concerned for the safety of [X] and herself. The father, representing himself, filed a Response seeking dismissal of the mother’s application, the immediate reinstatement of the existing contact orders, and that [X] live with him for two (2) weeks, presumably as make-up contact. His Response was supported by his affidavit sworn 5 February 2013. He disputed the Police record of the event, denied making a threat to the mother or child, emphasised his offence at the allegation and asserted it was all a huge misunderstanding. He pointed out that the ADVO was dismissed at [omitted] Local Court on 21 January 2013.
When the matter came before me on 7 February 2013 the mother applied for and was granted an adjournment as she was pursuing a review of the decision made to decline her legal aid. The father wanted instant dismissal of the mother’s application. Both the Independent Children’s Lawyer and the Court emphasised to the parents that the existing orders continued to operate until varied.
The matter came before me on 4 April 2013 to determine the issue. By then the mother had amended her Application but was still proposing supervised time. It seems as if contact was reinstated after 7 February 2013. By then [X] had started school, and the mother started part-time work. The Independent Children’s Lawyer and the father’s proposals had not materially changed from the December hearing, though both were emphasising the need to frame orders that keep the parents apart at changeovers. The mother pressed her claim for sole parental responsibility.
A characteristic of the affidavits filed by both parents in relation to the January 2013 incident is that the mother’s contained a litany of complaints about the father, mainly over relatively minor things, and a rehash of events preceding the hearing, and the father either denied the same or reciprocated.
But for the seriousness of the Police allegation, this incident would be considered nothing but “par for the course” for the parents. The COPS entry in the documents provided by the NSW Police states as follows:
In frustration, the P/N has rung [omitted] Police Station and spoke with Station Staff and has stated “If I do something bad, or I shoot her, or take matters into my own hands, you guys will be responsible.” As a result, an urgent CAD message was put on with Police attending shortly afterwards. Police spoke with the P/N and he emphatically denied that he had made the statement.
The interesting feature about this incident is that the Police allege that the father made the threats about the mother to them, rather than to the mother directly. In his affidavit and in court, the father emphatically denied he said the words attributed to him, even though the record was prepared by a disinterested but professional person who, in the course of his daily business, routinely makes records such as the COPS entry.
In court on 7 February 2013 the father told me that he rang the Police and said: “Look, I am sorry, I know this sounds like a petty complaint but I work with a firearm. I haven’t got the luxury of contacting the police about trivial matters”. The father agreed that he was very frustrated at the time, and that this arose because the mother did not wait for him when he was running late for changeover that day. In her affidavits a regular complaint she expresses about the father is that he is late at changeovers.
It is not possible to make findings of fact about the disputed allegations. What is objectively clear is that the ADVO was dismissed because the mother did not attend the hearing on 21 January 2013. She says that she was not told by the Police to attend on that day. The statements made by the Police are not in evidence. There was no cross-examination of any relevant person about the issue. In reality there was no evidence of the mother that could relevantly assist in deciding whether or not the father made the threat recorded in the COPS entry. The father strenuously, and consistently, denied it. The COPS entry confirms that, when interviewed, the father immediately and emphatically denied that he made the threat.
The Independent Children’s Lawyer submitted that whatever the father actually said that caused the Police to act as they did it was (a) probably said in the heat of the moment and (b) was probably inappropriate. The father concedes that he was “quite frustrated” at the time he made the call but nonetheless insists that he neither made the comments alleged, nor that there was anything inappropriate about what he actually said.
The incident on 3 January 2013 can be taken no further. There is no evidence to establish that the father made the threat recorded in the COPS entry, other than the entry itself, which in the circumstances is not probative. The Independent Children’s Lawyer was correct in submitting that what this incident really does is to confirm a number of already known facts about the parents eg. that the mother has subjective concerns abut the father; that she is emotionally vulnerable and her fears and anxieties are easily triggered; that changeovers are a flashpoint for these parents; that the parental acrimony remains unresolved; that the father demonstratably lacks insight as is manifested in ringing the Police over the incident in the first place; that this is a good example of both parties’ positioning via AVOs; and that this sort of parental behaviour is consistent with Dr M’s assessment of both parents. The court agrees with this. There is no issue about the need to protect [X] from harm.
The Father’s Evidence
The father relied on three affidavits sworn 18 January 2012, 10 February 2012, and 27 November 2012. He was self-represented for most of the case except for the final hearing, where Mr Blackah appeared on his behalf. The verbose nature of his affidavits was reflected in the verbose nature of his oral evidence. For the most part, however, his affidavits were in an appropriate form, thus reflecting the fact of the father’s [omitted] training and experience. The evidence he gives about his involvement in [X]’s life is fulsome, as is his description of the relationship with the mother. The father is undoubtedly critical of the mother in his affidavits, though this criticism is communicated in subtle ways. The father is a skilled wordsmith. He often blurred, however, the distinction between evidence and submission.
The cross-examination of the father demonstrates unequivocally the accuracy of Dr M’s description of the father as narcissistic. To be fair to the father, even he acknowledged this. I found the father to be very forthright and self-confident in his evidence. He had a high opinion of himself as a person, father and husband. He lacked insight, however, into his own inadequacies as a parent and the extent of which his own behaviour contributed to the problems faced by this family, as manifested by these proceedings. His focus on self seemed to sometimes take priority over his focus on [X]. He was plainly absorbed, if not indeed obsessed, with these proceedings. I provide the following examples from the evidence to support these findings.
The father gave evidence that the litigation was the focus of his life (“my life is effectively in limbo”) and that the litigation was an ordeal (“I went into [occupation omitted] so I could… survive these proceedings”). The clear implication is that he chose not to [omitted] but took on work in [omitted], despite telling the court that he could find work as a [omitted], and indeed expected to do so once the case was completed. Indeed, he openly admitted that he hoped for an increase in his income once he returned to work as a [omitted]. This was a reasonable hope in all the circumstances.
An interesting, revealing insight into the father’s character and attitude is found in this extract from his cross-examination:
So what’s your view of the proposal put on behalf of the independent children’s lawyer, - initially it’s a four/one, and then goes to a four/two. Would you still move?‑‑‑Would I still move place?
Yes?‑‑‑Yes, I would have to. I mean, that’s – but I don’t support that proposal. And I accept, you know, that everyone is trying their best here but – and there’s issues about, you know, everyone is trying to be compassionate towards [Ms Faber] and things like that. And I want to be that way as well, but what I am really looking for is an equal time arrangement. And I won’t have peace of mind with anything less than that. It will not – everyone will be gravely mistake if they thought that giving me anything less than equal time would be in [X]’s best interests because it would just unsettle me beyond belief.
HIS HONOUR: I am sorry, it would unsettle who?‑‑‑It would unsettle me and, therefore, [X]. It’s very important that I make this clear. The – I have existed for the best part of 12 months; I haven’t lived. The only thing that has kept me going is, you know, the fact that I finally get my hour in the sun, as it were, in court and I have the opportunity to put my case as to why [X] should be with me – or rather, you know, spend equal time with me. The, - you know, it would just be earth-shattering if I had anything less than that. It would be absolutely earth-shattering.
This passage not only demonstrates his total absorption with these proceedings, and his zealous quest for equal time, but also a sense of entitlement to this, and a preoccupation with his interests and not [X]’s. It is notable that in this short passage, he uses the word “I” or “me” or variations thereof, at least 15 times. His contention that [X] would be unsettled by less than equal time is based on he himself being unsettled by anything less than equal time. It is neither [X]’s nor the mother’s peace of mind that seems to matter – it is only the father’s peace of mind that is central. The litigation was his “hour in the sun”, not [X]’s.
At several points in cross-examination, he was challenged about his contention that he can work cooperatively and collaboratively with the mother, given the clear history of failure in this regard. He repeatedly asserted he could communicate with the mother, provided it was by email. If there were communication problems between them, it was the mother’s problem, not his. Notwithstanding his assertion, he agreed that his comments or actions “are sometimes perceived as inflammatory”.
Another revealing passage of the evidence is found at the transcript page 17, line 17-43:
Dr M gave evidence yesterday that he agreed with the suggestion that you were pushing the mother’s buttons?‑‑‑I heard him say that. I – I – obviously I don’t agree. I think there’s a difference between, you know, some of the things between asserting yourself and with – we were having a discussion about the school and pushing someone’s buttons. I think the phrase “pushing someone’s buttons” is best used to describe a situation where you are, you know, deliberately saying things to antagonise the other person, and I certainly didn’t do that.
What I suggest to you is that there have certainly been occasions post-separation when you have deliberately antagonised the mother?‑‑‑No ‑ ‑ ‑
What do you say to that?‑‑‑I would definitely reject that.
And what I would suggest to you is that there have been – I am sorry, I withdraw that – that there was one occasion on changeover where, after changeover, you walked in front of the car – the mother’s car and made circle motions with your hand at the side of your head as if to indicate that she was crazy. What do you say about that?‑‑‑Yes. That happened. Yes, that’s true.
You accept that?‑‑‑Yes, I do.
Is that the only occasion on which you’ve done such a thing?‑‑‑Yes. I – I believe so, yes.
When was that occasion?‑‑‑[Ms Faber] maybe could tell you. It was maybe one or two months ago, something like that.
That this event occurred in such close proximity to the hearing is one of its most significant features. The internal inconsistencies in the father’s evidence (rejection, later acceptance of what is put to him) also demonstrates how he cannot perceive his own situation clearly. He later admitted his actions were deliberate, but acknowledged that in hindsight he should not have so acted.
Throughout the father’s oral evidence are examples of him shifting blame to the mother, of both overt and subtle criticism of the mother, and lack of insight into his role in the problems with their relationship, as well as a distorted perception of facts. In relation to the last point, he disagreed with the proposition I put to him that Dr M did not think that equal time would work for [X]. I have dealt with Dr M’s evidence in this regard in the preceding section of these reasons.
Another revealing insight into the character and attitude of the father, and indeed also of the mother, relates to the mother’s decision to reduce [X]’s day care from four days to two days per week. The mother’s decision was based on cost. The father declined to pay the $25 gap per day that would have enabled [X] to continue to go. He agreed it would have been in her best interest to go. He agreed that he could have paid. He declined to pay, however, because he “wanted to be recognised as a co-parent on the enrolment”. His concern in this regard was based on not receiving information about events at [X]’s day care. The father, who is clearly an intelligent and articulate man, could see no other way of addressing this issue. The mother is equally insightless. She could have resolved the issue by simply agreeing to put the father on [X]’s enrolment, or instructing the day care centre to provide the further information. This episode reveals deep levels of distrust, lack of insight, lack of child focus and inability to communicate by both parents. It is hard to understand the father’s contention that he can cooperate and communicate with the mother having regard to this evidence. Indeed, the impression formed is that the husband’s contention in this regard is almost delusional.
Another disconcerting event was the father’s proposal to the mother that in return for more child support, she enter into a “binding child support agreement”. The context of this needs to be understood. During this litigation, the father was working in the [omitted] industry on a casual basis instead of working as a [omitted], a conscious choice he made. He hoped, for good reasons, to earn more as a [omitted] than he currently earns in the [omitted] industry. He agreed that he would probably work as a [omitted] once he chose to do so. He agreed that he would be able to contribute more to [X]’s support at that time, than he currently does. He proposed to pay $320 per calendar month to the mother as well as directly paying some other expenses. In January 2012, he was paying no child support. When asked about the significance of his requirement for the agreement, he said, “It gives me certainty… I want finality in these proceedings… I want certainty. I want to rebuild my life…” I asked the father about the appropriateness of fixing child support as he suggested, in a situation where he expected his income to increase. He repeated: “It would give me the certainty that I am looking for.” When I asked him about the potential impact on [X] and [X]’s mother of his requirement for certainty, he gave a thoroughly unconvincing answer that included his proposal to pay [X]’s high school tuition at a private school “in the order of over $20,000 a year”. [X] is five (5) years old. Whatever the father’s proposal was for when she was in year seven ignores the reality of [X]’s needs before she gets to year seven. Clearly, this responsibility did not rate as a significant one from the father’s perspective. Indeed, the impression formed from the father’s evidence is that he was quite offended by the mother’s solicitor’s flat refusal, on behalf of the mother, to even consider a child support agreement in the circumstances. The father clearly struggles to see things from any perspective other than his own. His attitude about child support is plainly irresponsible.
Notwithstanding all of the above, the father assured me that “[X] will never want for anything…financial”. Despite this assurance, the fact is that [X]’s attendance at day care was drastically reduced because, in part, the father would not pay.
In relation to Dr M’s report, a number of other concerns arise about the father. His attitude about the report is summed up in the comment he made – “…here you are about to meet an expert to convince him about the most important thing in your life”. Indeed, Dr M referred to the father’s opening “submissions”. For the father, the report interviews were an exercise in persuasion. He was there not just as [X]’s father, but as an advocate in his own cause which, he was thoroughly convinced, was consistent with [X]’s best interests.
In the report, [X] identified the father as being angry, particularly with the mother. The father refuted this. He insisted that [X] had not seen him angry – indeed “not at all”. He believed that the “honest truth” was that [X] “may have been coached by the mother” in that regard. When cross-examined about the conflict between the parents over many years, he agreed that the arguments included arguments over biscuits, over cleaning the house, over seeing his parents, and about him not doing anything around the house. He agreed that these were the issues that the police became involved in. He agreed that he found it necessary to restrain the mother physically on a number of occasions. He asserts that the mother assaulted him “physically maybe…between 10-15 times” mostly in the presence of [X]. Despite all of this overt conflict in the parental relationship, the father could not understand why [X] would consider him to be angry. It is clear beyond doubt that this was a high conflict relationship and that [X] was often exposed to the parents’ conflict. The court cannot accept the father’s contention that [X] had not seen him angry. It is far more likely than not that [X] has experienced her father to be the angry person that she described to Dr M.
In cross examination, the father agreed that he had done some less than flattering things. He agreed that he had returned [X] in the same clothing in which he had picked her up, and that this was part of a “kind of tit for tat thing going on with clothing”. He agreed that he had sound recorded the mother and [X] “for my own protection”. He denied any responsibility for [X] not attending day care as often as she could have, and insisted that this was the mother’s tactic “because she thought it might aid her family law proceedings”. The father agreed that during the litigation, “There had been indicates, all sorts, this year, that equal time was not going to happen. But I am not going to give up.” This is clearly correct as I had raised with the father on several occasions some of the difficulties he faced in making out a case for equal time. Nonetheless, he persisted in his crusade, ignoring the potential impact on the mother, and therefore [X], let alone the potential impact on public resources of insisting on a position that could not reasonably be sustained by reference to the evidence.
Regrettably the father’s evidence convinced me that he prioritised his own needs above that of [X], that his attitudes towards [X] and the mother are immature and irresponsible, and that he suffers from a significant deficit in insight into [X]’s needs, and the impact of his own actions, inactions, and attitudes about parenting.
The Mother’s Evidence
The mother relied on her affidavits sworn 14 December 2011, 10 January 2012, 8 February 2012, and 15 November 2012. She presented as anxious in the evidence. She has clearly struggled with anxiety and depression at times in her life, including during the relationship with the father. At times she has failed to acknowledge the impact of this on her life. I am not convinced that even now she has a full appreciation, despite her protestations to this effect. Like the father, she was willing at times to say things she wanted the court to hear, rather than things that she actually believed. She was as unresponsive in cross-examination as the father was. Notwithstanding this, and consistent with the father, I have no doubt that she will abide by court orders. This is particularly significant in the context of orders that mandate compliance with any prescribed treatment regime for her anxiety and depression.
I find the mother was an equal and active participant in the conflict with the father. I am satisfied that she sometimes, perhaps even often, initiated the conflict, and was sometimes physically violent towards the father. I accept, however, that she was also the victim of physical violence, at the very least to the extent that she was restrained by the father. The police records suggest that, just like the father, she was prepared to use the police, and apprehended violence orders, as methods to advantage her case, and to put a gloss on the mother’s concerns. I do not accept her evidence that all she ever did was to retaliate. Indeed, in a revealing comment in cross examination, the mother admitted that “when discussions became heated, I retaliated”, the context clearly demonstrating that she was meeting the father’s verbal abuse with physical abuse. She agreed that a person would not scream at someone who they were afraid of, but that she did scream at the father.
In some ways, the mother was as dogmatic and inflexible as the father. She steadfastly refused to accept Dr M’s explanation that at least part of the reason for [X]’s regressive behaviour was the mother’s own anxiety. Indeed, she minimised the significance of her anxiety and distress. She rejected any criticism of her parenting of [X], no matter how reasonable it was. She was as critical of the father as he was of her.
The nadir of the mother’s evidence was how she responded to [X]’s facilitated disclosures of sexual abuse. She grossly overreacted. The mother’s actions were inappropriate and tactical. To the credit of the mother however, she acknowledged that she had acted inappropriately, and seemed to understand how stressful this was for [X], as well as for the father. Indeed, this was a rare example of insight by one of [X]’s parents.
In cross-examination, she demonstrated little understanding of the need, or her responsibility, to share information with the father about [X]. Clearly she regarded the father as manipulative, untrustworthy, and uncooperative. While she conceded that communication by email was possible, and that notwithstanding all the problems she had encountered with the father they sometimes managed to reach agreement, she said it was often problematic and difficult for her.
There is much to be critical about [X]’s mother. Nonetheless, the fact is that [X] has a very good relationship with her father, and the mother needs to receive credit for this. Apart from the sexual abuse allegations which the mother clearly regrets, she has facilitated [X]’s time with her father whilst trenchantly maintaining her objections to increased time. Much to the court’s surprise, her final proposal (before the January incident) involved an increase in time between [X] and her father, albeit staged over a period of time. It is also clear that she has provided very well for [X]’s physical, emotional, and intellectual needs. The court shares Dr M’s view that there are no risks to [X] in the mother’s care, and further reassurance is attained by putting in a framework for the mother to receive assistance with her anxiety and depression.
I acknowledge that my treatment of the mother’s evidence in these reasons has been less fulsome than my treatment of the father’s evidence. That is not to say that I am any less critical of her actions and inactions, her attitudes and insights. However, the pragmatic reality in this case is that she is offering more time, is making a proposal consistent with the expert evidence, and demonstrates a flexibility that is quite absent on the father’s part. Her perception and understanding of the reality of the parental relationship is a much better one than the father’s. There is no need to be as fulsome in my treatment of her evidence as that of the father.
Section 60CC Considerations
Having regard to the evidence of Dr M and the parents, I find that:
a)[X] will have a meaningful relationship with her parents on any of the proposals advanced before the court.
b)There are no issues about protecting [X] from any form of harm. To the extent that the father’s case was predicated on the basis that the mother’s mental health presented a risk to [X], I reject that. Dr M did not regard it as a risk. There is no evidence of any plausible nature that would suggest that [X] is at risk of harm in her mother’s care, a fact reflected in the father’s own proposal. The mother’s case that [X] was at risk of harm in her father’s care is not made out.
c)[X] enjoys a good relationship with both parents, and members of her extended family, and none of the proposals before the court will change this.
d)It is inappropriate to place any weight on any views that [X] may have expressed as regards issues before the court, due to her age and developmental stage.
e)The mother has at times demonstrated a lack of enthusiasm for encouraging [X]’s relationship with her father, the clearest manifestation of which was the allegations of sexual abuse that she made. I accept her evidence that she now believes she acted inappropriately. However, despite this event, and notwithstanding her low level of enthusiasm, the fact is that [X] has had extensive contact with her father, and the mother’s proposal at least countenances the possibility of an increase in time to six days per fortnight, over a period of time.
f)The reality of the proposals advanced by all parties is that [X] will, in time, spend more time with her father. It is a question of degree. The father would like equal time. The mother and Independent Children’s Lawyer both propose, or in the mother’s case concedes, that an increase to 6 out of 14 nights per fortnight is a possible outcome in [X]’s best interests. The difference is marginal, if measured purely in terms of time, but potentially significant if measured in terms of impact on [X], and on her mother. Dr M had concerns of a developmental nature in relation to [X] spending extended periods of time away from her mother. To do so would have an adverse effect on [X]. Moreover, her recent manifestations of regressive behaviour are an example of an adverse effect on her that was linked by Dr M to the mother’s anxiety about the litigation, and its impact on [X]. This too is adverse change for [X]. These considerations point towards a more gradual increase in time rather than the sudden increases proposed by the father. This consideration also contraindicates equal time, a matter that will be discussed in more detail below.
g)There are no issues of practical difficulty and expense.
h)At most levels, both parents have the capacity to provide for [X]’s needs, including her emotional and intellectual needs. At a deeper level, the attitudinal issues that I will discuss below raise concerns about their maturity and insight. Their inability to disengage from the chronic conflict that they are engaged in, likewise raises issues about their capacity.
i)There are no issues about maturity, sex, and lifestyle of the parents or [X]. Both parents gave evidence that suggested that they had narrow and probably preconceived views on certain issues, including certain categories of people. I do not think that there is any risk, however, to [X] exploring and enjoying the rich cultural diversity that her mother and father’s backgrounds will bring. I also acknowledge that the mother has a degree of vulnerability arising from her anxiety and depression, but I do not consider this to be a risk to [X], or a determinative consideration, provided the mother complies with orders that I will make for her to seek and obtain assistance, and act on the advice that she gets, about her anxiety and depression. I have no doubt she will comply with any orders I make in this regard.
j)There are many issues about parental attitudes and responsibilities. The father’s self focus and narcissism meant that he was all too often focusing on his needs in this litigation, and not [X]’s. The rigidity of his thinking about equal time meant that he could not see any of the obvious impediments to its attainment. His idealised views about his relationship with the mother was in stark contrast to the reality. Moreover, neither parent showed any insight into their own contribution to the parental conflict, the lack of trust and cooperation, and inability to communicate and collaborate. The mother behaved irresponsibly in relation to the sex abuse allegations and its fallout. Both parents were irresponsible in relation to the reduction in [X]’s time in day care. The father was irresponsible in his attitudes about child support. As it turns out, these issues are strong contra-indicators of equal time.
k)There was family violence in this case. It was perpetrated by both of them against the other. It often started as verbal abuse and sometimes escalated to physical abuse. It was reciprocal, of low potency, and did not follow a pattern. The family violence was the manifestation and outpouring of intense parental conflict, and not part of any other coercive pattern. Both parents are poor role models for [X] in this regard.
Parental Responsibility: Section 61DA
Whilst the mother initially sought sole parental responsibility, she abandoned this by the time of her counsel’s final submissions and resurrected it after the January 2013 incident. The father and Independent Children’s Lawyer sought equal shared parental responsibility. That is the order I intend to make. It reflects poorly on the mother that she sought sole parental responsibility in circumstances where it should have been apparent that the evidence did not establish that the statutory presumption would be rebutted. In any event, Dr M was concerned that to give the mother sole parental responsibility may not be a wise thing. Indeed, the evidence indicates that it was the mother who made unilateral decisions about [X], and failed to appropriately include the father into, for example, information loops about [X]. In the circumstances, quite frankly, she could not be trusted with sole parental responsibility, even on a modified version. The order for equal shared parental responsibility is appropriate.
Equal Time or Substantial and Significant Time: Section 65DAA
The father wants equal time. The mother and Independent Children’s Lawyer propose substantial and significant time. Section 65DAA becomes a major focal point in this case. As the Full Court said in Klein & Klein [2010] FamCAFC 150 at paragraph 226, in discussing its earlier decision in Collu & Rinaldo [2010] FAMCAFC 53, and the High Court’s decision in MRR v GR (2010) 263 ALR 368, the court must be concerned with the reality of the situation of the parents. This requires a practical assessment of whether equal time is feasible. It is not about the desirability of certain outcomes. The father’s proposal does not survive even a cursory application of any test that involves a realistic practical assessment of the facts. The attitudinal and responsibility issues discussed above are strong contra-indicators to equal time being in [X]’s best interests. Moreover, equal time is not reasonably practicable as defined in section 65DAA(5)(b) and (c). The fact is the parents cannot trust each other, cannot cooperate with each other, cannot communicate with each other in a constructive way. It is no answer, as the father contends, that they can email because the diverse sorts of decisions that will need to be made in relation to [X] will not necessarily lend themselves to this form of communication. It is no answer, as the father contends, that their ability to communicate and cooperate is manifested by their ability to decide [X]’s schooling in 2013. One swallow does not a summer make (Aristotle). A single instance does not establish a trend. Moreover, the highly artificial context of that event during the course of interviews for a forensic report by Dr M goes nowhere near supporting what the father alleges.
So why is substantial and significant time in the best interests of [X], and reasonably practicable, when precisely the same factual considerations apply that contra-indicated equal time? This is one of the difficulties inherent in determining a dispute that is within a relatively narrow framework. Why would, for example, seven out of 14 not be indicated, but six out of 14 possible? It is a fine distinction to make. The mother and Independent Children’s Lawyer advance a proposal for substantial and significant time. This in itself is significant because they obviously believe that it is both in [X]’s best interests and reasonably practicable. The mother’s proposal implies a commitment to make it work. The Full Court and High Court have emphasised the need for a realistic, practical assessment of proposals. Adopting that sort of pragmatic approach means less time with [X] and, depending on how exactly the orders are structured, may mean less stress for [X] and less stress for her mother. There may be fewer opportunities for conflict at changeover. There may be scope for fewer issues about implementing arrangements. There may be less scope for difficulties that require “capacity to communicate… and resolve difficulties”. Thus even though the difference between equal time and substantial and significant time may, in a theoretical way be minimal, in a realistic and practical way, it is in fact significant.
Accordingly, equal time is neither in [X]’s best interest nor reasonably practicable, but substantial and significant time is both.
The Orders To Be Made
The father sought orders for week about shared care on an alternating basis. For all the reasons articulated above, I find that this is not in [X]’s best interests, nor is it reasonably practicable.
After the January incident, the mother’s proposal was for supervised contact. Prior to that however, her proposal was for the existing orders to continue, ie, five nights per fortnight (alternating weekends Friday to Monday; each alternate Thursday overnight Friday; each alternate Wednesday overnight Thursday). It should be noted that this was the mother’s proposal at the time of closing submissions. At the commencement of the case, her proposal was, in effect, for four nights per fortnight and hence a reduction of time. It should be further noted, however, that the mother indicated to the court through her counsel that if the court was going to increase [X]’s time with her father, it should be done in 12 months’ time in order to facilitate a transition for [X] in this regard. A significant concern arising from the current arrangements is the number of transitions for [X], not just in the physical sense of moving from school or house to house, but in the psychological sense of moving between two very different parents and households.
The Independent Children’s Lawyer’s proposal was that [X] live principally with her mother, but also with her father, and that the time progress in two stages. The first stage is from now until the 2013 midyear school holidays. [X] would live with her father from after school Thursday to before school Monday each alternate week, and each alternate Thursday overnight to Friday, i.e., five nights out of 14. Then from term three 2013, it would be Thursday to Monday in week one, and Wednesday to Friday in week two, i.e., 6 out of 14. Notwithstanding this, the Independent Children’s Lawyer indicated she would not oppose the transition to six (6) nights occurring in 12 months’ time.
The court will make orders incorporating the concession made by the Independent Children’s Lawyer above, i.e., move to four (4) plus two (2) in 12 months’ time, or effectively from the beginning of term two 2014. There are several reasons for postponing the final increase in time. The January incident demonstrates the fragility of the parents’ relationship and of their capacity to implement an even longer shared care arrangement. The postponement is consistent with Dr M’s warning about too rapid a progression. It provides a time in [X]’s life when her parents are (hopefully) not engaged in litigation, and are (hopefully) less conflicted. It will provide [X] with time to adjust to reconfigured contact arrangements that exposes her to fewer transitions. It also provides the mother with an opportunity to work on and improve her mental health.
In relation to school holidays, the father proposed half of the school holidays effective immediately. The mother conceded that this could be implemented as from 2014, but even then the summer holidays should be taken as one week blocks. The Independent Children’s Lawyer proposed half of the midyear school holidays, two by one week blocks in the 2012/13 summer holidays, one by two week block in the 2013/14 school holidays, and thereafter half the school holidays. The evidence that Dr M gave was that an arrangement like that proposed by the independent children’s lawyer would work best for [X]. I will make that order.
A number of incidental orders were sought by each party. No submissions were specifically made in relation to these issues, and the evidence given was not directly pertinent to them. The mother wants a watch list order, but there is no evidence to justify the making of the same. The other orders in relation to travel she proposes seem reasonable and appropriate. The father sought an order that each parent be permitted to take the child out of Australia for a holiday not greater than five weeks, each year. There is no basis for this, and it seems an extremely long period for a child [X]’s age to be away from either of her parents.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 19 April 2013
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