MCALLISTER & CAIN
[2016] FCCA 203
•9 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCALLISTER & CAIN | [2016] FCCA 203 |
| Catchwords: HELD – The child is to live with the Wife and spend regular time with the Husband. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 60B, 60CA, 60CC(2), 60CC(3) and 61DA. |
| Applicant: | MR MCALLISTER |
| Respondent: | MS CAIN |
| File Number: | MLC 8837 of 2013 |
| Judgment of: | Judge Bender |
| Hearing date: | 13 July 2015 14 July 2015 |
| Date of Last Submission: | 10 December 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 9 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dixon SC |
| Solicitors for the Applicant: | J.A Middlemis |
| Counsel for the Respondent: | Mr Sweeney |
| Solicitors for the Respondent: | Mills Oakley Lawyers |
ORDERS
All previous parenting orders be discharged.
The Husband and Wife retain equal shared parental responsibility for the long term care, welfare and development of the child, X born (omitted) 2003 (“X”).
X live with the Wife.
X spend time with the Husband as follows:
(a)During the school term:
(i) Each alternate weekend from after school Thursday until the commencement of school Monday or until 5.00pm Monday if Monday is a public holiday or curriculum day;
(ii) In the alternate week, on Thursday from after school until the commencement of school Friday;
(b)For half of each of the term school holidays by agreement and failing agreement, for the first half of the school holiday period, such time to commence at the conclusion of school on the last day of the school term until 5.00pm on the middle day of the school holiday period;
(c)For half of the December/January school holidays as agreed between the parties and failing agreement for the first half in 2016/2017 and each alternate year thereafter with such time to commence at the conclusion of school on the last day of term and conclude at 5.00pm on the middle day of the holidays and for the second half in 2017/2018 and each alternate year thereafter to commence at 5.00pm the middle day of the holidays and conclude at the commencement of school on the first day of the first term;
(d)Such further or other times as agreed between the parties from time to time.
Notwithstanding anything stated elsewhere herein, the Husband and Wife shall each spend time with X on each of the following special days, with any other time otherwise ordered pursuant to these Orders to be suspended:
(a)With the Husband from 10.00am to 5.00pm on the Husband’s birthday or if the Husband’s birthday is on a school day for at least three hours after school at times to be agreed;
(b)With the Wife from 10.00am to 5.00pm on the Wife’s birthday or if the Wife’s birthday is on a school day for at least three hours after school at times to be agreed;
(c)If the Husband would not otherwise spend time with X on Father’s Day, with the Husband from 10.00am to 5.00pm on Father’s Day or otherwise as agreed;
(d)If the Wife would not otherwise spend time with X on Mother’s Day, with the Wife from 10.00am to 5.00pm on Mother’s Day or otherwise as agreed;
(e)For Christmas:
In 2016 and each even year thereafter:
(i)with the Wife from 11.00am Christmas Eve until 11.00am Christmas Day;
(ii)with the Husband from 11.00am Christmas Day until noon on 27 December;
In 2017 and each odd year thereafter:
(i)with the Husband from 11.00am Christmas Eve until 11.00am on Christmas Day;
(ii)with the Wife from 11.00am Christmas Day until noon on 27 December.
Changeover shall occur at X’s school and if changeover should occur on a non-school day, changeover is to occur at the Wife’s home with the Husband not to come into her property.
The parties, their servants and agents be and hereby are restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party or any member of their household in the presence or hearing of X or permitting any other person to do so;
(b)physically disciplining X or threatening to do so;
(c)causing or allowing X to participate in any (hobby omitted) activities (including (hobby omitted)) that involve an opposing (hobby omitted) (and for the avoidance of doubt this restraint does not preclude X from training with a “(hobby omitted)”, (omitted) or similar equipment);
(d)enrolling X in any extra-curricular activity (ies), which is/are scheduled to occur during the other parties time with X without the prior written consent of the other party.
X continue to attend upon Ms G for counselling as required and recommended by Ms G, with either party being at liberty to consult with Ms G in relation to X’s progress and both parties shall do all such acts and things and execute all documents necessary to facilitate X continuing to attend upon Ms G in accordance with this order, the cost of such counselling to be borne by the Wife.
Each party:
(a)keep the other party advised at all times of their current residential address and contact telephone number for X;
(b)advise the other party immediately in the event that X suffers any serious illness or injury together with the name and contact details of the medical practitioner, health professional or hospital attended by X;
(c)authorise any medical practitioner or health professional upon whom X may attend to communicate with the other party in respect of X’s medical condition and/or requirements;
(d)authorise all schools at which X may attend to:
(i)provide the other party at the expense of the other party, copies of all reports, notices and photographs in relation to X;
(ii)communicate with the other party either by telephone, in writing or by personal attendance, in respect to X’s progress;
(iii)subject to any school policy allow the other party to attend all functions to which parents are normally invited.
If either party receives notice of a party or other special event and/or extracurricular activity for X which will take place while X is with the other party, he/she shall forthwith give the other party notice of such event.
IT IS NOTED that publication of this judgment under the pseudonym McAllister & Cain is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8837 of 2013
| MR MCALLISTER |
Applicant
And
| MS CAIN |
Respondent
REASONS FOR JUDGMENT
Introduction
This very unhappy matter relates to the future living arrangements for the parties’ only son X born (omitted) 2013 (“X”).
The parties have a highly conflicted and acrimonious relationship with no trust or respect for each other. X has been caught in the crosshairs of his parent’s dysfunctional relationship with the resultant negative impact on his behaviour and emotional wellbeing.
The Husband is seeking orders that the parties have equal shared parental responsibility for X, that X live with him and spend time with the Wife each alternate weekend from after school Friday to before school Monday, from after school Wednesday to before school Thursday in the alternate week, half school holidays and on special occasions.
The Wife is seeking orders that the parties have equal shared parental responsibility for X, that X live with her and spend time with the Husband each alternate weekend from after school Thursday to before school Monday, from after school Thursday to before school Friday in the alternate week, half school holidays and on special occasions.
Background
The Husband was born on (omitted) 1962 and is aged 53 years. The Husband is the owner and director of his own (business omitted). The Husband has re-partnered with Ms V. Ms V has three children from her previous relationship, A 23 years old, B 13 years old and C 11 years old. B and C live with Ms V nine nights per fortnight. Whilst the Husband and Ms V maintain separate residences, they are with each other five nights per week on average.
The Wife was born on (omitted) 1967 and is aged 48 years. The Wife is employed on a contractual basis as (occupation omitted) at the (employer omitted). The Wife has re-partnered. She and her partner Mr R have been in a relationship for twelve months. They do not live together.
The parties commenced cohabitation in 1998 and married on (omitted) 2002.
The parties separated on 20 October 2012 at which time the Husband vacated the former matrimonial home.
After separation, X remained living with the Wife and spent time with the Husband each alternate weekend from after school Friday to Sunday evening and on an agreed evening during the week. The Husband commenced coaching X’s (hobby omitted) team in (omitted) 2013 which involved training Thursday evening and a game Friday. X then began spending Thursday overnight with the Husband each week.
The parties attended mediation with Mr O in (omitted) in March 2013. The parties were unable to reach agreement.
In March 2013 the Wife arranged for X to start seeing Ms G, child/adolescent psychotherapist, for counselling to assist him in dealing with the parties’ separation.
On 14 October 2013 the Husband filed an Initiating Application seeking orders that X live with him and spend time with the Wife on alternate weekends, overnight each Wednesday and half school holidays.
The Wife filed a Response seeking orders that X live with her and spend time with the Husband each alternate weekend from after school Friday to before school Monday, overnight Thursday in the alternate week and half school holidays. The Wife also sought property orders.
I note that whilst this matter was initially listed for both parenting and financial matters, it only proceeded on the parenting matters. Valuations had not been completed and the property matters could not be heard. The parties advised that once the valuation issues were resolved they would attend private mediation in an effort to settle property matters.
On 11 December 2013 interim consent orders were made which provided for X’s living arrangements over the 2013/2014 long summer vacation and otherwise provided X live with the Wife and spend time with the Husband each alternate weekend from after school Thursday to 5.00pm Sunday, from after school Thursday to before school Friday in the off week, half the school term holidays and special occasions.
The 11 December 2013 interim orders also provided for the parties to attend an agreed family consultant for the preparation of a family report.
The matter was adjourned to 28 January 2014 and detailed orders were made for discovery, for valuations and for the parties to attend a Conciliation Conference.
On 22 January 2014, Mr B released the first of three family reports prepared by him in these proceedings. In this first family report
Mr B recommended X live with the Wife and spend five nights each fortnight with the Husband.
On 28 January 2014, despite the very clear recommendations in
Mr B’s report, the parenting matter was unable to be resolved between the parties. Whilst the Wife was prepared to resolve the matter in accordance with Mr B’s recommendations, the Husband did not accept Mr B’s recommendations. As the parties were unable to agree, X’s living arrangements remained as set out in the interim orders of 11 December 2013. The matter was listed for final hearing in the Bendigo Circuit commencing 7 April 2014 and directions were made for trial preparation.
On 10 April 2014 the matter was unable to proceed as the Husband had not provided discovery and the valuations of real estate and the Husband’s business had not been completed. Orders were therefore made adjourning the matter for final hearing on 8 September 2014 and very detailed orders were made for trial preparation including an order for an updated family report from Mr B.
On 12 August 2014, Mr B released his second report. He once again recommended X live with the Wife and spend five nights each fortnight with the Husband. Mr B did not support a shared care arrangement for X given the parties’ highly conflicted relationship. Again the parenting matter was unable to resolve despite Mr B’s clear recommendations. Whilst the Wife was prepared to resolve the matter in accordance with Mr B’s recommendations, the Husband did not accept Mr B’s proposal.
Prior to the September 2014 hearing date the Chambers of Judge Bender was contacted by the parties’ solicitors who advised the matter would not be able to proceed as discovery and valuations, especially of the Husband’s business, had not been completed.
On 3 September 2014 orders were made in chambers vacating the hearing date on 8 September 2014 and adjourning the matter to
13 July 2015 for hearing. Again, detailed orders were made in an endeavour to ensure the valuation of the Husband’s business would be completed.
The matter came before the Court on 30 October 2014 because of the Husband’s failure to comply with orders for discovery. On that date orders were made that in the event the Husband failed to fully comply with the orders for discovery, the Wife would have liberty to proceed on her property application on an undefended basis. The Husband was ordered to pay the Wife’s costs of that day in the sum of $705.
The parties were also ordered to attend for private mediation after all valuations were completed. Mediation did not occur.
The matter proceeded on 13 and 14 July 2015. At 11.00am on
14 July 2015, the Court was advised by the Wife’s then Counsel that his instructions had been withdrawn. The Wife’s solicitor then sought an adjournment of the matter. That application was granted.
Interim orders were made on 14 July 2015 which adjourned the matter on a part heard basis to 22 October 2015 and provided for the parties to attend on Mr B for a further updated family report.
The interim orders also provided by agreement that the interim orders of 11 December 2014 be varied so that X’s time with the Father each alternate weekend be extended to the commencement of school Monday or 5.00pm Monday if falling on a non-school day.
By late 2013 X’s behaviour both at school and in the parties’ homes began to deteriorate. He became increasingly disruptive and aggressive at school and his academic performance deteriorated. Both parties separately met with X’s teachers in an endeavour to address X’s behaviours and difficulties at school.
X has also refused to attend school on occasions and in an eighteen month period has not attended school or has been late to school on nearly 30 occasions.
X became increasingly angry and aggressive towards the parties and the Wife in particular. In 2014 and the first half of 2015 there were a number of incidents whereby X physically assaulted the Wife when he was unable to contain his anger. X has at times after arguments with the Wife contacted the Husband asking to go to his home or has “run-away” to the Husband’s home.
On separate occasions X has taken money from both the Husband and Wife or used their credit card without their knowledge or consent to buy items that either the Husband or Wife had refused to buy him.
X has continued to attend upon Ms G for ongoing therapeutic counselling for assistance with his ongoing difficulties arising from the breakdown of the parties’ relationship, his anger, aggression and inappropriate behaviour at school and at home.
The Evidence
The Husband
The Husband relies on his affidavits sworn 11 October 2013,
9 December 2013, 2 April 2014 and 29 June 2015.
The Husband also gave viva voce evidence at the final hearing.
The Husband is seeking orders that the parties have equal shared parental responsibility for X, that X live with him and spend time with the Wife each alternate weekend from after school Friday to before school Monday, from after school Wednesday to before school Thursday in the alternate week, for half school holidays and special occasions.
It is the Husband’s evidence that he believes the Wife is unable to properly care for X.
It is the Husband’s evidence that he believes the Wife to have a serious alcohol problem and that she regularly drinks to excess whilst X is in her care.
The Husband gives evidence of specific instances when he says the Wife was so intoxicated that she passed out. He makes particular reference to a school parent’s function in or around April 2009 where he alleges the Wife was so intoxicated that the babysitter had to telephone paramedics when she found the Wife collapsed on the front veranda, an incident in March 2010 where the Husband alleges the Wife attacked him with a knife when she was severely alcohol affected, an incident in September 2010 when the Wife returned home at 2.00am in the morning supported by a staff member and had a cut on her head that she could not explain and an incident at his staff Christmas party where the Wife became so affected by alcohol that she was subsequently so embarrassed that she offered to withdraw her (omitted) services from the business.
The Husband also gives evidence of what he alleges is a very concerning incident that occurred on 23 December 2012 shortly after the parties separated. It is the Husband’s evidence that after the annual street party the Wife became increasingly affected by alcohol. It is his evidence that X fell off his bike and the Wife was so drunk that she could not attend to his injuries.
It is the Husband’s further evidence that around midnight of that evening he missed two telephone calls from X in which X was very distressed asking his Father to call because there was “a man doing things to his mum and it was freaking him out.” It is the Husband’s evidence that X told him that he observed the Wife having sex with an unknown man by the pool at the former matrimonial home and X was so distressed he called the police who attended the home and spoke to the Wife.
The Husband further deposes to an incident when X was in his care in 2013 when they returned to the former matrimonial home to drop off a musical instrument and overnight bag. It is the Husband’s evidence that X was extremely distressed as he found his Mother and an unknown gentleman in bed together.
It is the Husband’s evidence that he does not believe that the Wife is able to manage X’s increasingly inappropriate adolescent behaviour. It is his evidence that in the last eighteen months there have been a number of serious incidents between the Wife and X including X threatening the Wife with a knife, physically hitting her to the head, putting his hands around her throat and punching her.
It is the Husband’s further evidence that there was an occasion where the Wife became so enraged with X that she threw a glass at him which fell to the floor resulting in X cutting his foot. It is the Husband’s evidence that he believes the Wife was drinking or had been drinking when this occurred.
It is the Husband’s further evidence there have been occasions when X has contacted him or turned up on his door step as a result of the arguments that he is having with the Wife.
It is the Husband’s evidence that he believes that he is in a position to offer X a more settled home environment and that he is better able to manage X’s behaviour and ensure that he gets to school. The Husband believes if X is in his care he will be able to ensure that X has an ongoing relationship with the Wife.
It is the Husband’s evidence that because he is self-employed, he has a degree of flexibility around his employment which will enable him to be available to care for X. On those occasions the Husband’s work ties him up, it is the Husband’s evidence his partner Ms V will be able to assist in X’s care.
The Husband concedes that when he first started his relationship with Ms V, there were difficulties in the relationship between Ms V, her children, B and C and X. It is his evidence that X now has a very good relationship with B and C and there has been an improvement in his relationship with Ms V.
Whilst the Husband gave evidence that he thought the Wife to be a good mother, he was otherwise very negative about the Wife. He was adamant that she is an alcoholic, has mental health issues and places her own needs ahead of those of X.
The Husband’s negative view of the Wife was perhaps best shown by his responses in the Court room whilst the Wife was giving her evidence. He sneered, at times guffawed and took no effort to disguise his disdain for the Wife and the evidence that she was giving.
It is the Wife’s evidence that X has reported to her that the Husband and Ms V speak of her in a most disparaging manner in their home and in X’s presence with the Husband calling her a “slut” and a “drunk” and Ms V referring to her as “(omitted).”
The Husband denies that he denigrates the Wife in X’s presence or hearing or that he has heard Ms V do so.
Prior to the parties’ separation, the Wife and Ms V were very close friends. Not surprisingly, this is no longer the case and theirs is now an acrimonious relationship.
On the Mother’s Day weekend in 2015, the Wife was offered last minute tickets to a show in Melbourne on the Saturday before Mother’s Day. She accordingly asked the Husband if he would care for X on the Saturday evening. He readily agreed.
There was then a series of SMS or email exchanges between the parties about what time X would be returned to the Mother on Mother’s Day as X expressed some preference to have lunch with the Husband, Ms V, B and C at their favourite Chinese restaurant. X was not returned to the Wife’s home until 5.00pm on the evening of Mother’s Day. The Wife was most distressed about this late return.
On 20 May 2015 there was an incident between the Wife and Ms V at the (hobby omitted) stadium where X and Ms V’s son, B were playing.
After X’s game, the Wife approached the Husband and Ms V in the bar at the (hobby omitted) stadium. The Wife said to Ms V, “I hope you enjoyed Mother’s Day with my son.” Ms V replied “yes, we had a great time.”
It is the Father’s evidence that after this exchange the Wife abused Ms V. This is denied by the Mother.
Ms V has made application for an Invention Order against the Wife. It is my understanding this application has been listed for a defended hearing.
Given Ms V’s relationship with the Husband and the role that she would play in X’s care in that event that the Husband was successful in his application to assume to the primary care of X, the Court would have been greatly assisted if the Husband had called Ms V in support of his application. He did not do so, explaining that his counsel had advised him that it would not assist his case for Ms V to give evidence in support of his application.
The Wife
The Wife relies on her affidavit sworn 12 November 2013 and her trial affidavit sworn 8 July 2015.
The Wife also gave viva voce at the final hearing.
The Wife also caused a Subpoena to Give Evidence to be issued to X’s counsellor, Ms G. Ms G attended Court in response to the Subpoena and gave viva voce evidence at the final hearing.
The Wife is seeking Orders that the parties have equal shared parental responsibility for X, that X live with her and spend time with the Husband each alternate weekend from after school Thursday to before school Monday, from after school Thursday to before Friday in the alternate week, half school holidays and special occasions.
It is the Wife’s evidence that she has always been X’s primary carer and she believes that it is in his best interest that she continue to fulfil this role.
The Wife denies the Husband’s allegation that she has serious issues with alcohol or that she drinks to excess regularly, particularly when X is in her care.
In relationship to the specific incidents cited by the Husband she is adamant that these incidents did not occur as described by the Husband. It is her evidence she was not drunk to the stage of passing out or that she was drunk at all.
The Wife concedes there was a New Year’s Eve when she and her friends were drunk but on that occasion X was being cared for by others.
In relation to the alleged incident on 23 December 2012, it is the Wife’s evidence that she and someone she met at the party were sitting by the pool after everyone had gone home.
It is her evidence that there were no lights on around the pool and that all she and the man were doing was kissing. She absolutely denies that she was having any kind of sexual intercourse with this gentleman on a chair by the swimming pool or that she was drunk on this occasion.
It is the Wife’s evidence that if anyone drank to excess during the relationship it was the Husband. It is her evidence that he would often have weekends away with “the boys” or nights out with “the boys” and would get home in the early hours of the morning in a very drunken state.
It is the Wife’s evidence that X’s behaviour both at school and at home significantly deteriorated from the beginning of 2014.
The Wife attributes the deterioration in X’s behaviour to him not coping with the breakdown of the parties’ relationship, his continued exposure to the conflict between herself and the Husband, the Husband undermining her relationship with X and X’s approaching adolescence.
It is the Wife’s evidence that she has consulted closely with X’s school and with Ms G, X’s counsellor, to implement strategies to assist X to better manage his anger and aggression and to put in place strategies to defuse situations when X becomes angry and distressed.
These strategies can include removing herself from X’s presence by leaving the room or going to her own room, by suggesting X go outside and “let off steam” by taking a run around the block or kicking a soccer ball and on some occasions contacting the Husband and seeking his assistance in intervening with X and managing his behaviour.
It is the Wife’s evidence that when she has contacted the Husband to seek his cooperation in managing X, the Husband’s response has been to tell her it is her problem and that she needs to manage the problems she has with X rather than being open to taking a joint parenting approach.
By way of an example of the Husband not supporting her in appropriate discipline of X, the Wife gives evidence of an occasion when X took her credit card without her permission and bought a pair of soccer boots online which he arranged to have delivered to the Husband’s home.
It is the Wife’s evidence that she contacted the Husband when she realised what X had done and asked him to return the soccer boots to her when they were delivered to him.
It is the Wife’s evidence that the Husband told her that it was not his responsibility to be running around returning soccer boots to her and that she needed to manage the situation.
When the soccer boots arrived at the Husband’s home, it is the Husband’s evidence that he put them in his bedroom and told X he had behaved inappropriately and was not to touch the boots until they were returned to the Wife. X then snuck into the Husband’s bedroom, took the boots and wore them to soccer practice. The Husband did not punish X for this behaviour.
It is the Wife’s evidence that she has concerns about the Husband’s discipline of X when he misbehaves in the Husband’s care. It is her evidence that X has told her on several occasions that the Husband has hit him, slapped him, thrown items at him and on one occasion hit him with some form of bat.
It is the Wife’s further evidence that the Husband also punishes X for alleged inappropriate behaviour when he is in the Husband’s care by returning him to her care and refusing to have X spend time with him until his behaviour improves. The Wife placed before the Court a copy of a text message that she received from the Husband on 5 January 2015 when X was meant to be spending time with the Husband. That text message received is as follows:
“Given X’s lack of respect, conduct and abhorrent language I do not want him at my place. When he gets some manners and can behave himself he is welcome. His behaviour is disgraceful.”
It is the Wife’s evidence that she believes the Husband and his partner, Ms V denigrate her to X when he is spending time in their home. It is her evidence that X has told her that Ms V refers to her as “(omitted)” and that the Husband has referred to her as a “slut” and a “drunk” as well as being “mental.”
It is the Wife’s evidence that she believes the Husband to be actively undermining her relationship with X by encouraging his bad behaviour in her home, by not supporting her in appropriate discipline or strategies to better manage X when he is behaving inappropriately and by returning X to her care or insisting that X remain with her when he has behaved badly so that X views being with her as a form of punishment.
It is the Wife’s evidence that she believes that if orders were made in the terms proposed by the Husband, there is a real risk that her relationship with X will not be supported by the Husband and there will be a breakdown of her relationship with X.
It is the Wife’s evidence that there have been occasions when she has not been able to get X to school on time or at all, particularly when he is facing sanctions as a result of his inappropriate behaviour at school.
It is the Wife’s evidence however that there have been occasions that X has not attended school because he has been quite sick including a severe case of gastroenteritis as well as bad colds and the flu.
It is the Wife’s evidence that there have been occasions when the Husband has also been unsuccessful in getting X to attend school. It is her evidence that in the week before this matter returned to Court on 10 December 2015, X arrived unannounced at her home on Friday morning, having spent the previous night at his Father’s home. X was refusing to go to school from his Father’s home. It is her evidence that she spoke to X and once he had calmed down she was able to get him to school by 10.00am that morning.
There was an issue between the parties about whether X should continue to attend at (omitted) School (“(omitted) School”). X was expressing a real desire to be allowed to change schools because of his difficulties at (omitted) School at that time. The Husband wished X to remain at (omitted) School whilst the Wife was open to considering alternative schools for him. However, when giving her viva voce evidence the Wife indicated she would not be seeking to change X’s school from (omitted) School.
When X attended upon Mr B for the purposes of the preparation of the third family report, he indicated to Mr B that he wanted to reverse the care arrangements so that he lives primarily with his Father and spends four nights a fortnight with his mother. When speaking to Mr B, X indicated that he realised that his mother would be upset by his decision and would subtly work on him to change that decision.
Mr B recommended in his third report that X’s wishes be accorded significant weight and that X’s living arrangements be adjusted to reflect his wishes.
After being advised by Mr B of X’s wishes for a change of residence and reading Mr B’s recommendation, the Wife confirms that she was very upset.
It is the Wife’s evidence that X subsequently advised her that he had changed his mind about wanting a change of residence and wanted an opportunity to speak to Mr B to tell him of his change of heart.
When X spoke to Mr B for the preparation of the second report, he indicated to Mr B that he would like to live in a shared care arrangement with both his parents. After speaking to Mr B, X told the Wife that he had changed his mind and wished to speak to Mr B again to tell him of this change of heart. On that occasion Mr B spoke to X.
When X told the Wife he had changed his mind after the third report interviews, the Wife again contacted Mr B to indicate X wanted to speak to him as he had changed his mind. Mr B declined to speak to X on this occasion.
It is the Wife’s evidence that after the third report interviews she at no time tried to influence X in any way to change what he told
Mr B. It is her evidence that it was X who approached her to say that he had been thinking about what he had told Mr B and had changed his mind about wanting to live with the Husband.
Ms G
Ms G is a mental health social worker and a child/adolescent psychotherapist who has been counselling X for three years. She has seen him for forty-six sessions to date.
Ms G gave viva voce evidence at the final hearing, having been subpoenaed to do so by the Wife.
Ms G gave evidence that X attended her for a counselling session on 14 October 2015, some weeks after the release of Mr B’s third report.
It is Ms G’s evidence that X told her he had made the decision about a change of his primary carer to please his Father and to give his Father what he wanted at that time. It is Ms G’s evidence that X told her that he felt very disappointed and let down by his Father’s behaviour subsequent to the release of the report. It is Ms G’s evidence that X told her he did not want to live primarily with the Husband.
When Ms G saw X on 14 October 2015, the parties had agreed to attend mediation with Mr T. It is Ms G’s evidence that X was very clear that he wanted to voice his opinions and his feelings at the upcoming mediation. This mediation did not take place.
It is Ms G’s evidence that X expressed his wishes with perfect clarity, exhibiting a strong sense of urgency and when he came to the counselling he went to her whiteboard and wrote intensely and without hesitation. Ms G produced a print out of what X wrote on her whiteboard on 14 October 2015. X wrote the following:
1. “Leave it at 9-5 with mum as my primary carer.
2. Dad’s been mean since I told Mr B what I wanted, but it was actually what my dad wanted, but it was actually what my dad wanted.
3. I final gave my dad what he wanted but he’s still not happy.
4. Mr B swapped it to 11-3 when I wanted 9-5.
5. Dad and Ms V always talk shit about mum, and always say she’s unreasonable, and a psycho.
6. My dad has also turned my Pa against me and my mum, that’s the worst thing about this.
7. and I hate how dad had an affair with Ms V but continues to deny it.
8. He has also turned Uncle D against mum.
9. I thought dad would look after me and take time off work like he said to Mr B, but he hasn’t done any of that, I am still his fifth priority.
10. and he loves and shows more attention and affection to the other kids than me.
Dad’s Priorities:
1.Ms V
2.C
3.B
4.Work
5.Me
When asked whether the matters that were written by X on the whiteboard expressed his views or were a reflection of what his Mother wanted him to say, it is Ms G’s evidence as follows:
“I feel that I have not done my job correctly today if I can’t express to you this is utterly from X. No I can’t stress how important it was X that this be included in the process. It is absolutely from him. Absolutely this is X. He got up. He picked up the whiteboard marker and he wrote it verbatim quickly. He knew exactly what he wanted to say, and I just observed. I was just his witness. I had nothing to do with any of this. It’s absolutely X. I think, if you want to think about what it’s in response to rather than his mother giving him ideas – he says it here. It’s in response to his dad’s behaviour after the report came out. It’s in response to the fact that dad didn’t take time off work to spend with him. It’s in response to the fact that dad still isn’t pleased, even though he gave him what he wanted”.
Ms G was asked whether X had ever raised with her concerns about the Wife’s alcohol consumption. It is Ms G’s evidence that the theme of all the adults drinking has been raised by X. It is Ms G’s evidence that the Husband wrote to her at the beginning of 2013 and indicated that one of his major concerns was the Wife’s drinking. It is her evidence however, that in X’s mind all the parties drink. It is Ms G’s evidence that if anything, X has raised with her the Husband and Ms V drinking all the time rather than it being a problem of the Wife. She summarised that as far as X is concerned there is drinking in both families.
Ms G was also asked whether X had raised with her any issues in relation to Ms V. It is Ms G’s evidence as follows:
“To be honest, it’s a huge theme in what X talks about. He has got a lot to say about Ms V. I think, you know, trying to be neutral and understanding it from an adult perspective, I’m sure there’s a part of X that is just……trying to be neutral and understanding it from an adult perspective… in a very natural way, as children always are, jealous of a step-parent, jealous that X’s dad, of course, values that relationship and is very committed to it. So that’s one part of it, but in X’s language, it’s always about Ms V criticising his mother. There have been many, many examples of X being very distressed and very angry about Ms V or Ms V and his dad criticising his mother. They have a nickname for her – (“omitted”). Ms V calls (“omitted”) and it breaks X’s heart.”
Ms G was asked about the increase in the arguments and aggression show by X towards the Wife in particular. It is Ms G’s evidence that this has been talked about in her sessions with X and X has acknowledged there have been lots of arguments. It is her evidence that X has been very frightened and distressed by his own anger.
Ms G gave evidence about what she views as a crucial theme in all of the discussions that she has had with X about his arguments with the Wife. Her evidence is as follows:
“I think one of the really crucial things in this kind of sad situation where what used to be intact relationships are really struggling is the business of repair. It’s a really critical thing for a child to be able to deal with his remorse, his regret, that he had a huge fight with mum or dad, and have a confident base that he is going to be forgiven and that the relationship is going to be able to repair and be put back together. I think that’s one of the things that has been a very enduring strength in his relationship with his mother…. I’ve got some lovely quotes…where he said things like, “I know I can get angry with mum because I know we’re going to make it up at the end.” And I think that’s a really important part of all of this. It really is indicative of a relationship that has a solid base, in spite of these incredibly stressful triggers that everybody in this unhappy family is going through.”
Ms G was asked how X had changed from the young boy she first started seeing in 2013. Ms G had prepared a summary for the benefit of the Court in anticipation of her giving evidence. She read her summary to the Court. Her evidence is a perfect summary of what is happening to this vulnerable young man as a result of his parent’s acrimonious separation and their inability to shield him from their conflict.
Ms G’s summary is as follows:
“In 2015, there has been significant deterioration of X’s emotional and behaviour functioning, both at home and at school. X presents as a sad, confused and angry 12 year old preadolescent boy. X impresses as a boy burdened by the enduring acrimony and legal processes still not concluded by his parents. This is in contrast to a boy, who in early 2013, impressed as having natural resilience and who was doing well at school. It’s noteworthy that there have been increased difficulties with anger and defiance at school. X describes himself as that kid who one teacher described as the most arrogant and cocky kid in the school. A constant theme in 2015 has been X loathing his school and his wish to change schools. At home, there have been increased angry arguments in both homes. Escalations of anger and yelling comes more quickly now for X and X’s capacity to calm down takes longer than before. X’s difficulties are consistent with a diagnosis of adjustment disorder. X consistently feels that he is in the middle of acrimonious parents and that he continues to be forced to disappoint one or the other. X loves both his parents. X is aware that he is struggling and while his emotional language is good, it’s a daunting task for a child to communicate to his loved parents how painful and exhausting it is for him to wait, watch and wonder when acrimonious, legal processes will end so that his life can become predictable and settled.”
Mr B
Mr B is an experienced family report writer with a Master of Social Work. Mr B prepared three family reports in this matter. The first dated 22 January 2014, the second dated 12 August 2014 and the third dated 11 August 2015.
Mr B also gave viva voce evidence at the final hearing.
The First Report
In his first report under the heading “Evaluation” Mr B states at paragraphs 35 – 41 the following:
35.I do not believe X is being physically assaulted by his father, as Ms Cain believes, but think that Mr McAllister needs to be careful when wrestling X in play and needs to control his temper before lashing out if X is annoying him. Mr McAllister has played a background role in raising X until the separation and I believe he genuinely wants to be more involved with his son. He has taken an active interest in X’s interests and wants to develop a friendship with him as well as being his father.
36. I believe Ms Cain has an overly close relationship with X that has developed over time due to her poor relationship with Mr McAllister. She has been comforted by the intimacy she feels as a mother toward her sons and it has deepened due to them sleeping in the same bed for a number of years because of X’s sleeping problems. Ms Cain takes great pride in X’s maturity for his age and has developed a friendship with him as well as a strong parenting bond.
37. I do not believe that Ms Cain or Mr McAllister have problems with alcohol to the extent that they claim about each other. I am particularly concerned about the way Mr McAllister has constantly used Ms Cain’s drinking as a weapon to denigrate her, particularly in front of X. I believe that they both drink alcohol as part of their lifestyle and that occasionally they drink to excess.
38. Both parents have involved X in their conflict with each other for a long time, partly due to the fact that he is an only child and they each believe he is on their side. Both Mr McAllister and Ms Cain are intelligent and articulate people who feel the need to have to explain their actions to X. However, their perspectives on the ongoing disputes they have with each other does not help X and only distresses him.
39. X made it clear he was tired of listening to them argue and being exposed to their versions of events. It appears he tends to favour his mother’s version due to the closer emotional bond he has with her. X also made it clear he needs the counselling sessions with Ms G in order to cope, with Ms G confirming that he often highly distressed about an incident involving his parents when he attends counselling and needs to debrief. I do not believe X simply absorbs his mother’s views about events and treats them as his own. He is on the very of adolescence and in a couple of year’s time is likely to take a definitive stance on his care arrangements in order to protect himself.
40. Mr McAllister and Ms Cain do not have the capacity to co-parent X due to the high level of animosity they have shown toward each other. Instead of working co-operatively to minimise X’s distress they have included him in their disputes over a long period of time. As a result of their poor communication, X needs to live primarily in one household to minimise the negative effect on him. Ms Cain has always been his primary caregiver, I believe she should retain that role. However I believe that Mr McAllister should increase his alternate Saturday night with X until Morning so he can take him to school.
41. Consequently X should spend five nights a fortnight with his father, from alternate Thursday nights until Monday mornings as well as keeping the alternate Thursday overnights. All changeovers will take place at school to minimise X being exposed to his parents’ arguments. Mr McAllister needs to ensure that X has a substantial amount of clothing and belongings at his house so that X is not transporting his belongings to and from school at the school changeovers.
The Second Report
Under the heading “Evaluation” in the Second Report Mr B at paragraph 33 – 38 states the following:
33. Mr McAllister and Ms Cain are not able to co-parent and their conflict has escalated since the preparation of the last Family Report in January 2014. They each view the other as being the cause of X’s behavioural problems at school and with his mother at home. Mr McAllister believes that X’s behaviour in both places will improve if he has shared care while Ms Cain believes X needs less exposure to his father in order to feel settled.
34. X would like his parents’ conflict to stop but believes it is unlikely they will have insight into their own contributions to be able to do so. In the space of a couple of days he came up with two solutions, which are contradictory and reflect the confusion he is going through. On the first occasion he stated he wanted to trial living with each parent for alternate weeks and having no contact with the other parent that week unless he chooses to do so. He felt that he could focus exclusively on being with that parent for their week and block out the tension between his parents when their lives intersect over him.
35. His second solution, which was similar to what he said for the last Family report, was for him to have security of a home base, which is the current family home with his mother, and to spend a slight increase in time with his father. In cases involving shared care arrangements, the parents need to be working hand in glove with each other in terms of parenting styles and to have open communication with each other and with their child during the ‘off week’. There also needs to be a flexibility with the care arrangement that allows the child to go to the other parents’ house in the ‘off week’ to collect items and to be involved in activities that come up when they are based at the other parents’ house.
36. The success of alternate week arrangements depends on the capacity of the parents to be able to communicate and co-operate with each other as well as to be able to exercise flexibility.
Mr McAllister and Ms Cain are not able to meet these criteria and are moving toward the polar opposite. X thought that he could trial the shared care arrangement to see if he could block out the conflict regarding the other parent. Ideally he could like to see if that arrangement reduced the conflict he is already exposed to. However once Court Orders are made, I do not believe his parents have the capacity to monitor his progress and vary the care arrangements if X is not coping.
37. I do not believe this matter is suitable for shared care on an alternate week basis in the long term. It is likely X would experience increased anxiety living equal time in two households that not only have no positive communication with each other, but instead are openly hostile toward each other and do not accept the responsibility for their contribution.
38. Unfortunately X’s current living situation is also causing him distress, as has been reported by the school and his counsellor, with the only real solution being for him to not be caught in the middle of his parents’ hostility by them realising the long term damage they are creating. The recommendation in the last Family Report of increasing X’s time with his father by one night a fortnight from alternate Sunday nights to Monday mornings is still the recommendation from this report. However the solution to X’s increasing distress is not how many nights a fortnight he spends with each parent but is in them accepting responsibility for the emotional harm they are inflicting on him.
The Third Report
For the preparation of the third report Mr B arranged to interview X alone prior to meeting with either of the parties.
In paragraphs 30 and 31 of the third report Mr B set’s out X’s wishes as follows:
30. X stated clearly that he wanted to reverse the care arrangements so that he lives primarily with his father and spends four nights a fortnight with his mother. He was aware that his mother would be upset by his decision and would subtly work on him to change it. X stressed that he wanted both his parents, particularly his mother, to know of his decision that day. He explained that he has made up his mind over a long period of time and needs to know what it would be like living primarily with his father. He admitted that living primarily with his mother was not working because of their increased arguments and he needed to spend time with his father to see if things would be better.
31.X is aware that his father will have a firm commitment to send him to (omitted) School and that he will not allow him to stay home from school as much as he has done with his mother. Despite anticipating struggles with his father over his schooling, he made it clear he wanted to live with him during most of the school week. X admitted his relationship with Ms V is improving and that he gets on well with B and C.
Under the heading “Evaluation” in his third report Mr B states as follows:
32. X’s decision to live primarily with his father has evolved over the three Family Reports to a position where he is ready to build a substantial relationship with him. During the time of the first report he was tentative about their bond and feeling he had to compete for his father’s attention with Ms V and her two children. At the time of the second Family Report he was prepared to live equal time with each parent, as he did not want to offend either of them by making a clear choice. In addition he thought an equal time arrangement would be fair to both parents. He only changed from that view after he had further discussions with Ms Cain to a new position of ‘slightly more time’ with his father than what he had been having.
33. As there was no increase in time with his father until a Court appearance between the second Family Report and just before the third Family Report, his wishes for ‘equal time’ and a ‘slightly more time’ were not followed. X has made a choice to have substantially more time with his father with the knowledge that his mother will be upset, his counsellor will be surprised and he will have considerable pressure from his father to attend (omitted) School on a regular basis. I believe he has had to make such a bold decision after realising that his current living situation with his mother is becoming increasingly stressful and his requests for more time, including equal time with his father have been ignored.
34. I have stated in previous reports that an equal time care arrangement for X will not work because of the high level of conflict and mistrust between the parents. I thought the parents might have adapted to a nine nights/five nights arrangement in favour of Ms Cain, with both parents having substantial time with X and made that recommendation in the first two Family Reports. However that option was not taken up, with X remaining in a care arrangement where he lives primarily with his mother during the school week.
35. Conflict has increased as a result of his problems at school and lack of regular attendance. Ms Cain has been faced with a situation of trying to encourage X to attend a school she does not believe is the best for him. Mr McAllister pays the entire school fees but does not have the day to day responsibility of ensuring he attends or is responding to his problems with teachers and other students.
36. I believe X’s proposal of spending ten nights a fortnight with his father and four nights a fortnight with his mother should take place, as the current care arrangement is not working for X both at school and at home. X is developing into an outspoken adolescent who needs to spend more time with his father during this stage of his development.
37. Mr McAllister will not have an easy job caring for X ten nights a fortnight, ensuring he attends school regularly and being available for him before school, after school and when there are problems at school while running a business at the same time. However he should be given a chance to provide X with a stable home environment and a rewarding school experience.
Mr B therefore recommended in his third report that X live with his Father ten nights a fortnight and live with his Mother on, alternate weekends from Friday until Monday and an alternate week night from after school until before school. Mr B also recommended a sharing of holidays and special occasions.
Mr B also emphasised the importance of X continuing to attend counselling with Ms G.
Under vigorous cross examination by the Wife’s counsel, Mr B conceded that if the Court were to make a finding that the Husband was undermining and manipulating X and his relationship with the Wife, the Husband returned X to the Wife’s home as a form of punishment for misbehaviours in his home, or that it was not only the Wife but also the Husband that was having difficulties with school refusal, or that the Husband and Ms V were denigrating the Mother to X, or that the Husband did not have the flexibility around his working hours that he had indicated to Mr B, then those would be factors that would cause him to reconsider the recommendation made by him that there be a change of X’s living arrangements so that he lives in the primary care of the Husband.
It is Mr B’s evidence that he formed the view that the wish expressed by X for a change of living arrangements was something that X had considered. Mr B saw this as a natural progression of X’s improving relationship with the Husband and his expectation that as X became older his wishes for his living arrangements would become clearer to him and he would be more definite in expressing what he felt.
It is Mr B’s evidence that the impression that he got from X was that X wanted to “see how it goes” living with the Husband and that if it did not work out then X would go return to living primarily with the Wife.
Best Interests of the Child
Part VII of the Family Law Act1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders):
1. The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine what is in the best interests of the child, the court must consider the matters set out in section 60CC(2) and section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the court, must be considered and assessed in the context of each of the parties’ proposals. The court should then make a decision as to which of the parties’ proposals, or such other arrangement as the court determines given the court is not bound by the parties’ proposals, is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the court must consider when determining what is in the best interests. They are as follows:
Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents
X loves his parents and wants to spend time with both of them. It is clearly in his best interests that he should be able to do this.
In paragraph 38 of his third report, Mr B raises the concern that X might reach a stage where he cannot cope with the competing claims on him from each of his parents and he could therefore close himself off from one parent in the future in order to stabilise his life with the other.
It will therefore be vitally important that whatever the decision of this Court as to which of the parties is to be X’s primary carer, the other party accepts the Court’s decision and enables X to have some certainty and stability about his living arrangements.
If there is a failure by either party to accept the Court’s decision and give X some stability in his living arrangements, there is a real risk that X will choose to align himself with one of the parties in order to remove himself from the unremitting stress placed on him by both parents to choose them. This would deprive him of the meaningful relationship he currently has with both parties which is clearly in his best interests.
Section 60CC(2)(b) The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
It is the Husband’s evidence that the Wife’s care of X is compromised as a result of her excessive alcohol consumption, her mental instability and her inability to parent the emerging adolescent that is X and the resultant defiant behaviours he is currently exhibiting.
It is the Wife’s evidence that the Husband at times inappropriately physically disciplines X and subjects him to emotional abuse by withdrawing his affection and approval if the Husband forms the view that X has behaved inappropriately in his household.
It is apparent from the evidence that the issue of alcohol consumption by both parties is a long standing sore point and was a major cause of discord during the parties’ relationship.
In paragraphs 30 and 31 of his first report Mr B sets out the following:
“30. X stated that his father often says things about his mother that are really things about him, such as her drinking too much. He explained that since the separation they have fought at each other’s houses and through text messages, with both trying to tell him their side of the story. X stated ‘I’ve witnessed it all – basically Dad starts the fights when accuses Mum of being drunk, which she isn’t.”
“31. X stated ‘it’s normal for people to have too much to drink’ and is concerned that they blame each other all the time. He stated ‘when Dad is mad at me he will attack Mum – he knows how to make me feel sad.’ X stated they both used to accuse each other of being drunk when they were together and the accusations have become worse since they separated…”
In Ms G’s evidence she reports X raises concerns with her during their counselling sessions about the level of alcohol consumed by the Father and his partner Ms V, rather than that of the Mother.
What is of concern is the statement by X to Mr B in January 2014 that “it’s normal for people to have too much to drink.” This would indicate that X’s experience of both his parents and their friends is that it was not uncommon for them to be drunk and that he views this behaviour as perfectly normal.
X is an emerging adolescent who is already exhibiting inappropriate behaviours and difficulties in managing his anger and aggression, primarily as a result of his extended exposure to the parties’ highly dysfunctional and conflicted relationship.
The example that his parents are setting him is that it is totally acceptable to regularly partake of alcohol as a lifestyle choice, as well as a way to deal with stress and conflict.
The Court must in these circumstances have concerns that if the parties do not address their current parenting of X and in particular X’s exposure to their highly conflicted relationship, then X will be at real risk of considering alcohol as a solution to his ongoing difficulties and problems.
I am therefore of the view that both parties must seriously curtail their alcohol consumption when X is in their care so that they can show him that it is not “normal for people to have too much to drink.”
The major psychological harm for X is his exposure to the parties’ unremitting acrimony as well as the long running legal processes that he has had to endure since his parents’ separation. As Ms G so eloquently put it when giving her evidence, there has been a significant deterioration of X’s emotional and behavioural functioning, both at home and at school, and this is as a direct result of being in the middle of his acrimonious parents who are constantly forcing him to feel he is disappointing one or the other. The extent of X’s difficulties is viewed by Ms G as being consistent with a diagnosis of adjustment disorder.
The long term implications for X if the parties don’t immediately recognise that they are both equally responsible for the damage they are doing to their son and accept responsibility to do something to change their behaviours are frightening. There is real potential for X to suffer long-term and lasting psychological damage.
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations the Court must consider when determining what is in the child’s best interests.
Each of the matters set out under that section will be considered in turn where applicable in this matter.
Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
When X spoke to Mr B for the purposes of the preparation of his third report, he expressed a very clear wish that he wanted to reverse his existing care arrangements so that he lives primarily with his father and spends four nights a fortnight with his mother.
X told Mr B he understood that his mother would be disappointed in his decision and that she might work on him to change it.
X told Mr B of this wish in the full knowledge that his father would insist on him continuing to attend at (omitted) School, a school he did not wish to attend and that it would involve him living not only with the Husband but also with the Husband’s partner Ms V, with whom he has something of a difficult relationship.
Some two months after speaking to Mr B, X attended upon his counsellor Ms G on 14 October 2015. On that occasion he was very clear that he wanted his living arrangements to remain as they have been since July 2015, that is to live in his mother’s care and spend five nights a fortnight with his father.
When speaking with Ms G, X indicated that he had told Mr B that he wanted to live with his father because he knew that was what his father wanted and he was trying to please him.
X also told Ms G that the reason he had changed his views about where he wanted to live was his disappointment in how his father had behaved in the period since he had seen Mr B.
Ms G was very clear in her evidence that she believes that what X told her and wrote on the whiteboard in her office on 14 October was purely X’s own feelings and views. Ms G indicated she did not believe that X’s views as expressed to her reflected any pressure put on him by the Wife to change his mind as to who he primarily wanted to live with.
Whilst Mr B was not specifically asked whether he thought X’s change of mind about his living arrangements after the interviews for the third report was as a result of the Wife subtly or otherwise influencing X to change his position, it is Mr B’s clear evidence that he considers that the wishes X expressed during the preparation of the third report were a more genuine reflection of what X wants than those given to Ms G in October 2015.
I don’t accept Mr B’s evidence in this regard.
Ms G has been assisting X for three years and she and X have a close and trusting relationship. Whilst the Husband harbours concerns that Ms G has been influenced by the Wife as it is she who brings X to counselling and pays her fees, I formed the view that Ms G’s sole allegiance is to X and that her evidence reflects her knowledge and understanding of X that has developed over the last three years.
In these circumstances I am persuaded that the views expressed by X to Ms G in October 2015 more accurately reflect his view as to which parent he wishes to be his primary carer.
X is now a thirteen year old teenager. He is nearly six feet tall. Both parties concede X is displaying all the challenging behaviours of an adolescent boy. This behaviour is further exacerbated by the emotional toll that his exposure to his parents’ conflict causes.
X is already moving between his parents’ homes depending upon which parent he is arguing with or which parent is imposing boundaries around his behaviours that he is finding unacceptable.
In this circumstance, it is probable that his views as to which of his parents he should live with have and will continue to vacillate.
Accordingly, it will be very important that both parents agree and commit to abiding by the decision of this Court as to where X is to live so that X no longer feels he is caught between the parties. It will also prevent X from being able to exploit the parties’ conflict to avoid the repercussions for ongoing poor behaviour.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child).
As has been clearly set out in this judgment, X loves both of the parties. He wants to have a relationship with both of them.
X has had something of a difficult relationship with the Husband’s partner, Ms V, although it appears from all the parties’ evidence that this relationship is improving. It would also appear that X enjoys a very good relationship with Ms V’s children B and C.
However, it is interesting that as recently as October 2015 when X was speaking to Ms G, he continues to express a real need for the Husband to commit to regular one-on-one time with him and continues to be distressed by his belief that his father prioritises his relationship with Ms V and her children over the relationship with him.
The Mother has formed a new relationship with Mr R. It would appear from the Wife’s evidence that she has been careful to introduce Mr R into X’s life gradually and sensibly. She reports that X and Mr R have a good relationship.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child;
(iii) to communicate with the child.
Since separation X has lived in the Wife’s care and has spent consistent and regular time with the Husband.
The parties have a highly conflicted and acrimonious relationship and their communication is very poor.
Each of the parties seem to have individually dealt with X’s school in the context of his behavioural difficulties, though it would appear that they recently attended jointly to discuss X’s issues with some degree of success and agreement.
As has been set out in this judgment in some detail, unless there is a genuine improvement in the parties’ communication, interaction and a reduction in their obvious dislike of each other, X is at serious risk of permanent psychological damage.
Section 60CC (3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
I am satisfied that both parties fulfil their obligation to maintain X.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
It is the Wife’s evidence that she has a genuine fear that if orders are made in the terms sought by the Husband, the Husband will undermine her relationship with X to the extent that X will be completely estranged from her.
The Husband does little to shield X from his negative views of the Wife. It is apparent from X’s comments to Mr B and particularly to Ms G that the Husband and Ms V denigrate the Wife to X when he is in their care and that X finds this very distressing.
The Husband would appear to accept as true all the complaints made by X about the Wife and her behaviour when X is in the Wife’s care and there have been occasions when he has over held X in breach of the Court orders because of the allegations made by X about the Wife and her care of him.
X has made quite serious allegations to the Wife about the Husband’s care of him which the Husband adamantly denies.
The Husband seems to fail to grasp that it is possible, and in fact probable, that X is exaggerating or misreporting what is going on in the household of the other parent. This is in part because X knows that is what each parent wants to hear and in part to engender the sympathy and support of the parent whose care he is in at the time.
In these circumstances, the Court must harbour some concerns about the Husband’s capacity to support X’s relationship with the Wife if he were to live in the Husband’s primary care.
As has been previously set out in this judgment, the real risk of X being able to continue to have a meaningful relationship with both of his parents lies in the possibility that X might reach a stage where he cannot cope with their competing claims on him and he closes himself off from one of the parties to protect himself from his exposure to their ongoing conflict.
Section 60CC (3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
The parents live in close proximity to one another. There are no practical difficulties in X being able to spend time with each of the parties.
Section 60CC (3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
I am satisfied that both parents have the capacity to meet X’s emotional and intellectual needs.
However, the parties are so embroiled in their dysfunctional and noxious relationship, their dislike and disdain for each other and their need to have X choose to live with them rather than the other party, that X’s emotional needs in particular are not being met by either of them.
X’s exposure to the parties’ conflict is also impacting on X’s intellectual needs as his deteriorating behaviour is not only occurring at home but also at school. There has been a measurable deterioration in his academic performance.
It cannot be emphasised enough how important it is for X that the parents start putting X first and consider his wellbeing as more important than their ongoing conflict.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
I have no doubt that both parties love X and that they genuinely want what is best for him. However, as has been comprehensively detailed in this judgment, their conflicted relationship is preventing them from being the responsible parents that they should be.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family.
It is Wife’s evidence that X tells her the Husband has inappropriately disciplined him. The Husband denies these allegations. It is the Husband’s evidence that X tells him the mother has been abusive of him, especially when she is drunk. The Wife denies these allegations.
In his first report Mr B opines that he does not believe X is being physically assaulted by the Husband. Mr B also opines that he does not believe the parties have problems with alcohol to the extent each claim against the other. I agree with Mr B.
What is of concern is the violence that is being perpetuated by X against the Wife and it would also appear at times against his peers at school. Ms G reports with concern the difficulties X is having managing his anger and aggression.
Mr B emphasised the importance for X to continue to receive assistance from both Ms G and his school in managing his behaviours.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
There is currently a defended intervention order application by
Ms V against the Wife arising from the incident at the (hobby omitted) stadium in June 2015.
The Wife concedes that she should not have approached Ms V and the Husband at the stadium, but is adamant that she was not abusive to Ms V on this occasion.
This matter will no doubt play out in the state jurisdiction.
Section 60CC (3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In the majority of parenting cases it is the ambition of the Court that it make orders that will finalise the litigation between the parties.
In this matter, X desperately needs the parties’ litigation to be finalised. These proceedings are now well over two years old and could and should have either been resolved or heard much earlier. The litigation has been delayed because the parties were unable to prepare the financial aspect of their matter and in so doing lost sight of the negative impact the ongoing litigation was having on X.
The importance to X of the parties accepting this decision and committing to complying with its terms going forward cannot be overstated.
Section 60CC (3)(m) any other fact or circumstance that the Court thinks is relevant.
The necessity for X continuing to attend upon Ms G has been emphasised by Mr B and confirmed by Ms G.
Whilst the Husband initially spoke with Ms G when X commenced his counselling some three years ago, he has at times been sceptical of the benefit to X of that counselling. It would appear that this scepticism is primarily caused by his belief that Ms G is biased against him and is supporting the Wife.
It is Ms G’s evidence that she extended an invitation to the Husband to attend upon her, perhaps every six months, so that she can update him on what is happening for X. It is Ms G’s evidence that the Husband has not taken advantage of that invitation.
Whilst the Husband’s evidence is that he will support X continuing to attend upon Ms G, he expresses no willingness to receive feedback from her about the issues that are troubling X and any suggestions she might have to better manage X’s behaviour going forward because of what he believes is her bias against him.
I found Ms G to be a compelling witness. I did not perceive any bias from her in favour of either of the parties. I found her to be totally focussed on X and how she could best assist him as he traverses his parents’ conflicted relationship, the difficulties of adolescence and the problems he is currently experiencing at school.
In these circumstances, the Husband is encouraged to take advantage of Ms G’s offer of regular feedback and to accept that in so doing he can only better assist X going forward.
Presumption of Equal Shared Parental Responsibility
Section 61DA of the Act provides that 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.
This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for that child.
In this matter both parties are seeking orders they have equal shared parental responsibility for X.
Whilst the parties’ have a highly conflicted and toxic relationship, they have in recent times been able to jointly speak to X’s school to receive feedback on how to assist X in addressing the behavioural difficulties he is currently experiencing.
Further, they are now in agreement that X is to continue his counselling with Ms G and that he continues at (omitted) School.
X is the parties’ only child. He needs both his parents to be making the decisions for him going forward, particularly if his current unacceptable behaviour and difficulties are to be successfully addressed.
In all the circumstances I am satisfied that it is in X’s best interests that orders be made for equal shared parental responsibility and that the presumption has not been rebutted in this matter.
Consideration of Equal Time or Substantial and Significant Time
Where parties have equal shared parental responsibility for a child, section 60DAA of the Act requires the Court to consider the child spending equal time or substantial and significant time with each parent.
In this matter, neither party is proposing an equal time arrangement.
It is the evidence of Mr B that an equal time care arrangement for X will not work because of the high level of conflict and mistrust between the parents. I am in complete agreement with Mr B’s evidence on this issue.
The parties’ competing proposals provide for X to spend significant and substantial time with the other parent.
Conclusion
This matter relates to the future living arrangements for the parties’ thirteen year old son, X.
X has lived in the primary care of the Wife since the parties separated in October 2012.
The Husband is seeking orders that X now live primarily in his care and spend four nights each fortnight in the Wife’s care.
It is the Husband’s evidence that he believes he is better placed to provide X with a stable and structured home. It is his evidence that he believes the Wife’s parenting is compromised by her excessive alcohol consumption, her inability to properly manage X’s increasingly aggressive behaviour as he moves into adolescence and her inability to place X’s needs ahead of her own.
The Wife is seeking that X’s current living arrangements continue whereby he lives with her and spends five nights a fortnight with the Husband.
It is the Wife’s evidence that she has always been X’s primary carer and that it is in his best interests that he continue to have the stability and security of his known home base.
The Wife adamantly denies the Husband’s allegations that she drinks to excess or that alcohol in any way impacts upon her parenting capacity.
The Wife concedes that X’s behaviour, particularly in the last eighteen months, has deteriorated and that he has been unable to contain his anger and aggression at times which has resulted in instances where he has been violent towards her.
The Wife also agrees that X’s behaviour at school has deteriorated in the last eighteen months and that his school has expressed concerns about his bullying as well as the decline in his school attendance and academic performance.
It is the Wife’s evidence that she believes that X’s behaviour has improved in the last six months although she acknowledges that it is still far from ideal.
It is the Wife’s evidence that she believes X’s inappropriate behaviour is caused by his exposure to the parties’ highly conflicted relationship, his approaching adolescence and by the Husband’s undermining of X’s relationship with her and his emotional manipulation of X.
Mr B has prepared three family reports in this matter.
In the first report X expressed the wish to continue to live primarily in the Wife’s care. At the time X saw Mr B he was living with the Wife and spending time with the Husband each alternate weekend from Friday to Monday and overnight Thursday in the alternate week. Mr B recommended that X should continue to live with the Wife and that his time with the Husband be extended by an additional night whereby X spend time with the Father from after school Thursday to before school Monday each alternate weekend as well as overnight Thursday in the alternate week.
Neither party accepted Mr B’s recommendations, albeit the Wife was willing to resolve the matter on a final basis in the terms recommended by Mr B. The Husband was not.
In the second report prepared by Mr B, X initially indicated that he wished to try a week-about arrangement with each of his parents. Within 48 hours of speaking to Mr B, X changed his mind and spoke to Mr B over the telephone indicating that he wished to continue to live primarily in the Wife’s care.
In his second report Mr B clearly sets out that given the parents’ highly conflicted relationship a shared care arrangement was not appropriate and he again recommended a nine-five living arrangement for X.
Again the parties did not accept Mr B’s recommendations, albeit the Wife was again prepared to finalise matters on the basis of Mr B’s recommendations. The Husband was not.
In July 2015 the matter came on before the Court for final hearing. The matter had to be adjourned on a part-heard basis. At the conclusion of the second day of evidence interim orders were made which finally put into place the recommendations of Mr B for the nine-five arrangement.
When X attended upon Mr B for the preparation of the third report, he expressed a wish for a change of residence such that he lived with the Husband and spent four nights per fortnight with the Wife.
Mr B considered X had made a reasoned decision and he recommended that orders be made that reflected the wishes of X for a change of residence.
X has been attending upon Ms G, a child/adolescent psychotherapist, for ongoing therapeutic counselling for a period of three years. In October 2015 X attended upon Ms G for a counselling session. At that session X told Ms G that he had changed his mind about wanting a change of residence and indicated to her in very clear terms that he wanted a continuation of the nine-five arrangement. He was also very clear to Ms G that his change of mind about his living arrangements from when he had seen Mr B in August was a reflection of his experience of his father’s behaviour since his meeting with Mr B and not because his mother had persuaded him to change his views.
It is clear from the evidence before the Court that both parties enjoy drinking alcohol and that there have been occasions where they have both drunk to excess.
When X was speaking to Mr B for the purposes of the first report, he observed that his father often accused his mother of being drunk when she wasn’t. X then made the concerning observation to Mr B that “it’s normal for people to have too much to drink”.
Ms G reports that the question of alcohol consumption by the parties has been raised by X with her. X has expressed concerns about the Husband and the Husband’s partner Ms V drinking excessive amounts of alcohol rather than the Wife.
Where an eleven year old boy has formed the view that it is normal for people to drink too much, it is a poor reflection on both his parents. It raises a real concern that the parties are setting a very poor example for X, particularly as he moves into adolescence.
It is therefore incumbent on both parties to seriously consider just how much they are drinking, particularly in front of X and to reduce their alcohol consumption when X is in their care.
It is apparent from the evidence and in particular the consistent comments made by X to Ms G that the Husband and Ms V denigrate the Wife in the presence and hearing of X whilst he is in their care. The Wife is referred to as “(omitted)” by Ms V and both make allegations in front of X that the Wife is a drunk and mental. These comments considerably distress X.
There have also been occasions when the Husband has either returned X to the Wife’s care when he has behaved inappropriately in the Husband’s home or has refused to have X return to his care until such time as X’s behaviour improves. This sends a message to X that in the Husband’s eyes, returning to or living with the Wife is a form of punishment.
It is the clear evidence of Mr B and of Ms G that there has been a significant deterioration of X’s emotional and behavioural functioning. This is a direct result of his exposure to the enduring acrimony between the parties as well as the extended and unresolved litigation about his further living arrangements.
It is Ms G’s evidence that X consistently feels he is in the middle of his parents and that he is continually forced to disappoint one or the other. She notes that it is a daunting task for X to try to communicate to his loved parents how painful and exhausting for him it is to have to wait, watch and wonder when the acrimonious legal processes will end so that his life finally becomes predictable and settled.
Whilst X expressed a preference to Mr B at the time of the preparation of the third report that he live primarily in the Husband’s care, I am satisfied that this reflected in part a wish by him to make his father happy and also a wish to actually try living with the Husband.
Some two months after X saw Mr B he told Ms G during a counselling session that he had changed his mind about wanting to live primarily with the Husband.
Whilst the Wife was distressed and upset when told of X’s wish to live with the Husband, I am satisfied that X’s change of mind about which parent he wanted to live with was not because the Wife influenced him to change his mind but is a reflection of X’s experiences of his father in the period after the preparation of the report. I am satisfied that the wishes expressed by him to Ms G are a genuine reflection of X’s wishes going forward.
The Husband’s disdain for the Wife is apparent in the allegations that he makes against her, the evidence that he gave to the Court and his demeanour throughout the hearing of this matter. The Husband has not shielded X in any way from his negative views of the Wife. Given the Husband’s attitude to the Wife, the Court must have concerns about the impact this would have on X’s relationship with the Wife if he were to move to live primarily in the Husband’s care.
Since the beginning of 2014, X’s behaviour has deteriorated considerably and he has become more aggressive and, at times, incapable of managing his anger. The Wife in particular has been subjected to X’s anger.
It is the evidence of Ms G that X is distressed and frightened by his anger and his inability to manage it.
It is Ms G’s evidence however that one of the really crucial issues in this matter is X’s confidence that his mother will forgive him his bad behaviour towards her and that their relationship is able to be repaired. She reports X telling her that he knows he can get angry with his mother because they will make it up and she will forgive him.
In all the circumstances of this case and considering all the matters outlined above, I have formed the view that it will be in X’s best interests that orders be made that the parties have equal shared parental responsibility for X, that he live with the Wife and that he spend time with the Husband each alternate weekend from after school Thursday to before school Monday or to 5.00pm Monday if a non-school day, from after school Thursday to before school Friday in the alternate week, for half of the school holidays and on special occasions.
There is no doubt that the Husband will be unhappy with this decision. It will be vitally important however that the Husband accepts the decision so that X can finally have a sense of permanency about his living arrangements and can be relieved of the belief that he is responsible to somehow make both his parents happy with the decisions he makes about where he lives.
It will be of even greater importance for X that the parties accept responsibility to examine their own behaviours so that they can reduce the overt animosity and acrimony that currently exists between them. The parties must genuinely find a way to better communicate and work together or the current unacceptable behaviours that X is exhibiting will become the norm and X’s emotional, psychological and behavioural problems will become entrenched and will worsen.
I certify that the preceding two hundred and forty-six (246) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 9 February 2016
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Remedies
-
Procedural Fairness
0
0
2