McKellar and Roper
[2018] FCCA 2019
•27 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCKELLAR & ROPER | [2018] FCCA 2019 |
| Catchwords: FAMILY LAW – Parenting – whether a four-year-old child should live in a week about arrangement with each parent or with the mother and spend substantial and significant time with the father – whether the child’s age and stage of development make a week about arrangement inappropriate for him - whether the parties’ parental communication is sufficient for a week about arrangement to work. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(2)(a), 64B, 65DA, 65DAA(2), 65DAC, 65DAE |
| Cases cited: Mazorski & Albright [2007] FamCA 520 Tait & Densmore [2007] FamCA 1383 |
| Applicant: | MR MCKELLAR |
| Respondent: | MS ROPER |
| File Number: | DGC 2668 of 2016 |
| Judgment of: | Judge Small |
| Hearing date: | 1 February 2018 |
| Date of Last Submission: | 1 February 2018 |
| Delivered at: | Dandenong |
| Delivered on: | 27 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Self represented |
| Solicitors for the Applicant: | Self represented |
| Counsel for the Respondent: | Ms Stead |
| Solicitors for the Respondent: | Calley Rajah Family Lawyers |
ORDERS
All previous parenting orders in relation to the child [X] born 2013 (“the child”) are hereby discharged.
The parties shall have equal shared parental responsibility for making major long term decisions about the child’s care, welfare and development.
The child shall live with the mother.
The child shall spend time and communicate with the father as follows:
(a)During school terms:
(i)Until the end of the child’s first year at Primary School on each alternate weekend from the conclusion of school/daycare/kindergarten on Friday to the commencement of school/daycare/kindergarten on Monday commencing (the first Friday after date of orders);
(ii)Commencing in the first week of the child’s second year at Primary School on each alternate weekend from the conclusion of school on Thursday to the commencement of school on Monday;
(iii)Until the end of the child’s first year at Primary School on each Thursday from the conclusion of school/daycare/kindergarten to 7:00 p.m.;
(iv)Commencing in the second week of the child’s second year at Primary School on each alternate Thursday from the conclusion of school until the commencement of school on Friday;
(b)For half of each of the school term holidays each year by agreement between the parties and failing agreement from the conclusion of school/daycare/kindergarten on the last day of term until 6:00 p.m. on the second Saturday in even-numbered years and from 6:00 p.m. on the second Saturday to the commencement of school on the first day of the next school term in odd-numbered years;
(c)For one period of two weeks and one period of one week in the 2018-2019 long summer holidays by agreement and failing agreement from the conclusion of kindergarten on the last day of the 2018 school year to 6:00 p.m. one week later and for the two weeks concluding at 6:00 p.m. on the last Thursday prior to the commencement of the 2019 school year;
(d)Thereafter for half of the long summer holidays each year by agreement and failing agreement the second half in 2019-2020 and each alternate year thereafter and the first half in 2020-2021 and each alternate year thereafter;
(e)Regardless of any other provision in these Orders:
(i)from 6:00 p.m. on Christmas Eve to 11:00 a.m. on Christmas Day in 2018 and in each alternate year thereafter and from 11:00 a.m. on Christmas Day to 6:00 p.m. on Boxing Day in 2019 and in each alternate year thereafter;
(ii)From after school on the Thursday before Good Friday to 6:00 p.m. on Easter Saturday in 2019 and in each alternate year thereafter and from 6:00 p.m. on Easter Saturday to 6:00 p.m. on Easter Monday in 2020 and in each alternate year thereafter;
(f)For the child’s birthday:
(i)If the birthday falls on a school day from the conclusion of school until 7:00 p.m. on the birthday in odd-numbered years and from the conclusion of school until 7:00 p.m. on the day before the birthday in even-numbered years;
(ii)If the birthday does not fall on a school day then for four hours by agreement and failing agreement from 10:00 a.m. to 2:00 p.m. in odd-numbered years and from 2:00 p.m. to 6:00 p.m. in even-numbered years;
(g)From the conclusion of school until 7:00 p.m. on the father’s birthday each year if it falls on a school day and if it does not fall on a school day then for four hours by agreement and failing agreement from 2:00 p.m. until 6:00 p.m.;
(h)At other times by agreement between the parties in writing from time to time.
When time is to commence or conclude at the conclusion or commencement of school/daycare/kindergarten, changeover shall take place at the child’s school/daycare/kindergarten, and at all other times, changeover shall occur at a venue as agreed by the parties in writing, and failing agreement at the McDonalds restaurant closest to the mother’s home at the commencement of time and at the McDonalds restaurant closest to the father’s home at the conclusion of time.
The mother shall ensure that the child’s school makes available to the father, at his cost if any, all school reports, information about parent-teacher interviews, sporting or cultural events, and information about all prizes or awards won by the child, and the father shall be at liberty to attend parent teacher interviews and all sporting or cultural events usually attended by parents.
The parties shall each inform the other of any serious illness or injury suffered by the child which requires hospitalisation or treatment by a medical or allied practitioner while he is in their respective care, and they shall authorise any treating medical or allied practitioners who are caring for the child to speak to the other about the child’s treatment.
The parties and their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s household to or in the presence or hearing of the child and from permitting any other person to do so;
(b)discussing these proceedings with or in the presence or hearing of the child (save to explain any changes in his living circumstances to him) and from permitting any other person to do so;
(c)allowing the child to read, or have read to him, any portion of the Court’s Reasons for Judgment in this matter.
IT IS NOTED that publication of this judgment under the pseudonym McKellar & Roper is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2668 of 2016
| MR MCKELLAR |
Applicant
And
| MS ROPER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter between Mr McKellar (“Mr McKellar” or “the father”) and Ms Roper (“Ms Roper” or “the mother”).
There is one child of the relationship, namely [X] born 2013 (“[X]” or “the child”).
[X] currently lives with his mother and has done so for the majority of the time since separation when he was just under two years old.
The mother seeks orders for [X] to live with her and spend substantial and significant time with his father.
The father seeks orders that the child spend equal time with each parent.
The issues to be decided in this case are therefore:
A.With whom the child should live; and
B.How much time the child should spend with each parent.
Background
Mr McKellar was born on 1991 and is therefore 26 years old. He works full time as a (occupation omitted). He is in good health. Mr McKellar has repartnered with Ms J (“Ms J”) and lives at his parents’ home with her and her son [A], who is slightly younger than [X].
He and Ms J have bought a block of land in Town B and expect to move there in 2019 after building a house on the property.
Ms Roper was born on 1990 and is therefore 28 years old. She works as a (occupation omitted). She has repartnered with Mr K (“Mr K”). Mr K has a four-year old daughter but there is no further information about him before the Court.
At the time of trial Ms Roper was living in rented accommodation with her niece and Mr K in Suburb A, and was intending to move to Town C, which is closer to where the father will be living from about the middle of 2019.
The parties were involved in a relationship for approximately 5 years and lived together for a period of approximately 2 years from mid-2013. [X] is the only child of the relationship.
The parties separated in mid-2015, after which [X], then not quite two years old, lived with each parent on a week-about basis.
That arrangement continued until January 2016, when the mother unilaterally decided that the week-about arrangement was no longer working for [X], and [X] began to live with his mother full-time.
Between January and August 2016 [X]’s time with his father was inconsistent and relatively infrequent, with the father saying that the mother prevented him from seeing [X], and the mother saying that she offered the father time with [X] which he did not accept.
What is not in dispute is that on 27 August 2016, the father collected [X] from his mother for what had been agreed would be a period of seven hours, from 10:00 a.m. to 5:00 p.m.
At about 4:00 p.m. on that day, the father advised the mother by text message that he would not be returning [X] to her, and that he would be making an application to the Court for parenting orders, which he did two days later.
[X] did not spend any time with his mother from 27 August 2016 until 8 September 2016, when interim orders were made by consent for him to return to live with his mother and spend alternate weekends and one night per week with his father.
[X] has lived with his mother since 8 September 2016 and has spent regular time with his father pursuant to court orders since that time.
Procedural History
The matter commenced with Mr McKellar filing an Initiating Application, Affidavit in Support and Notice of Risk on 29 August 2016.
Ms Roper filed a Response, Affidavit in Support and a Notice of Risk, an Application in a Case and Affidavit in Support on 31 August 2016.
On 6 September 2016, Ms Roper filed two additional Affidavits sworn by herself and her sister, Ms G.
The matter first came before Judge Phipps on 8 September 2016. On that day, orders were made by consent for the father to return the child to the care of the mother, and that the mother have liberty to have the matter urgently listed for a recovery order if the father failed to comply with that order.
The matter was then adjourned to the Duty List on 3 November 2016 when I ordered that the parties and the child attend upon a Family Consultant for the purposes of the preparation of a Family Report to be released by 31 October 2017. I otherwise adjourned the matter for Final Hearing on 31 January 2018 for two days.
The father filed two Affidavits sworn by himself and his partner, Ms J, on 15 January 2018.
The mother filed an Amended Response and Affidavit in Support on 17 January 2018.
Outline of Case documents were filed by the father on 25 January 2018 and by the mother on 30 January 2018.
Final Hearing commenced on 31 January 2018 and the matter ran for two days. The father appeared in person. The mother was represented by Ms Stead of counsel.
There were four witnesses at trial, namely the father, Ms J, the mother, and the Family Report Writer, Ms M (“Ms M”).
Following the conclusion of evidence and submissions on 1 February 2018, I reserved my decision. On this day, orders were made by consent for interim parenting arrangements.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes and the transcript of the trial, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
Issue A. Where the child should live
The father wishes to return to the situation where [X] lived with each of his parents on a week about basis.
The mother seeks orders for [X] to live primarily with her and spend specified time with his father.
The father’s evidence
In his Trial Affidavit sworn and filed 15 January 2018, the father sets out the history of the relationship and the proceedings, including seven occasions on which the mother had allowed him to have additional time with [X] between 30 December 2016 and 5 January 2018.
In relation to the parties’ history, Mr McKellar confirms that upon separation, [X] lived with his parents on a week-about basis by agreement between them. He says that this continued “until March 2017, when the mother unilaterally decided that [X] would live with her and spend occasional time with me, including no overnight time.”[1]
[1] The Affidavit of Mr McKellar sworn and filed 15 January 2018 paragraph 4.
He describes the events which led to these proceedings thus:
5. On 27 August 2016, the Mother allowed me to have [X] from 10am until 5pm. As it was my birthday on (date omitted), I did not return [X] to the Mother and on 29 August 2016 I filed an Initiating Application for parenting orders. I am seeking orders for [X] to spend equal time with each parent.
He then describes his plans for building a house on his block of land at Town B and states that he expects that he, Ms J, Ms J’s son [A] and [X] will move in to that house in about 2019.
Until then, he says he, Ms J, [A] and [X] (when he spends time with his father) are living with the paternal grandparents who are able to assist with [X]’s care when necessary.
Mr McKellar then discusses the concerns he has for [X] when he is in his mother’s care.
He says that he is concerned that the mother “is not providing [X] with a consistent and stable home environment” as since separation, [X] and the mother have lived at three different addresses and with two of the mother’s boyfriends.
He also describes several concerning incidents of [X]’s health and hygiene not being attended to in an appropriate manner.
The first concerns an incident where [X]’s toenails were allowed to grow irregularly to such an extent that he needed a podiatrist’s intervention. Mr McKellar says that the podiatrist’s advice was that [X]’s shoes had been too tight, and he deposes that he (the father) has been buying [X] shoes “as required”.
The second incident relates to what sounds like an infection [X] had on the head of his penis. Mr McKellar says that he took [X] to the doctor after discovering that “the head of his penis was white and green and there were white lumps under the skin”. Photographs annexed to the Affidavit confirm that description. The father says [X] was suffering some pain from this condition and that the doctor told him that it was due to poor hygiene. He says that despite him carefully cleaning [X]’s penis when he was in his care, the problem recurred over several months and he does not believe that the mother addresses [X]’s hygiene appropriately.
A third incident occurred when [X]’s day care centre contacted him to report that [X] was complaining of a toothache. On a dentist’s advice, he took [X] to a doctor for antibiotics and then to the dentist to have his tooth filled. Mr McKellar’s evidence is that the dentist told him that “the hole was caused by lack of teeth cleaning and too much sugar in [X]’s diet”.
Mr McKellar then refers to the family report prepared by Ms M and to the mother’s three affidavits filed earlier in the proceedings.
It is his evidence that the mother asked to meet with him one week prior to the family report interviews. At that meeting, the father says, she told him that she wanted to cancel the family report interviews “as she did not want to put [X] through it”. He says that the mother told him that if he agreed to cancel the family report, and she was able to obtain work in Town C, she would agree to [X] spending equal time with each parent.
Mr McKellar says he declined that offer.
It is the father’s evidence that the mother was quite happy for the week-about regime to continue until he commenced his relationship with Ms J in early 2016. It is his belief that [X] had been coping very well with that regime and that “the mother was prepared to deny [X] a relationship with me in order to prevent him establishing a relationship with Ms J”[2]. He believes that it is the mother’s dislike of Ms J that is at the basis of the dispute between him and Ms Roper.
[2] Ibid paragraph 29
He denies that he was violent, abusive and controlling towards the mother during the relationship, saying that the relationship ended because the mother had had an affair.
Mr McKellar’s evidence is that after the mother decided to discontinue the week-about regime for [X], she made it “extremely difficult” for him to spend time with [X] at all. Indeed, he says that Ms Roper allowed him to spend time with [X] on only four occasions between 15 March and 27 August 2016.
In relation to him keeping [X] in his care beyond the time agreed on 27 August 2016, Mr McKellar merely says that he had informed the mother by text message “on numerous occasions that [X] had settled in well at my home and he was safe”[3]. He says further that he invited the mother to visit [X] at his home but that she had declined. It is his evidence that [X] was happy in his care, that he had not asked for his mother, and that he had suffered no ill effects from being away from her for almost 2 weeks. He says that as the mother had been traumatised by these events, [X] may have picked up her distress such that he behaved in the ways described by the mother when he was returned to her on 8 September 2016.
[3] Ibid paragraph 52
In relation to the mother’s allegation about child support changes, Mr McKellar says that the mother had informed the Department of Human Services (Child Support) (“the Child Support Agency”) in March 2016 that [X] was in her full-time care, and that when he was in his care in August 2016 he had informed the Child Support Agency of that fact and the fact that he had made an application to this Court for parenting orders. It is his evidence that he told the Child Support Agency that if the orders he sought were made, [X] would be spending equal time with each parent.
Mr McKellar denies being verbally abusive to the mother either in person or through their communications book. He further denies that he was rude to the day care centre staff in relation to the accident [X] suffered on 3 October 2016, and is critical of the mother for not informing him about that accident personally.
The father then states the following in conclusion in his trial Affidavit:
69. I ask that final orders be made as set out in my Initiating Application. I believe it is in [X]’s best interests to spend equal time with each of his parents.
70. I am the parent who is best able to provide [X] with the secure, stable and loving home life he needs. I set appropriate boundaries for [X] and I meet all his physical, intellectual and emotional needs. I provide him with opportunities and encourage him to learn and grow. I also monitor [X]’s health issues and ensure his cleanliness.
71. [X] copes extremely well with seven, or more, consecutive days with me. He is well settled in his routine in my home. He has excellent relationships with me, Ms J and [A] and he loves being part of our family. Ms J and I are in a committed relationship and we have made significant plans for our future together.
72. I believe [X] also needs an ongoing and meaningful relationship with his Mother and I will encourage him in this regard.
At trial, in relation to the circumstances that pertained during the relationship between the parties, Mr McKellar denied that he had mistreated Ms Roper emotionally, and denied that certain conversations about requests Ms Roper had made of him, and the manner in which he had spoken to her, had ever taken place.
It was Mr McKellar’s evidence under cross-examination that he had no issue with the manner in which Ms J had spoken to Ms Roper on 13 March 2017, and was adamant in answer to multiple questions that he had genuinely believed Ms Roper when she had said “Yes Ms J, I’m homeless”. I find that evidence difficult to believe, especially as Mr McKellar conceded that he had not asked Ms Roper where she and [X] would be sleeping that night.
He stated that he did not believe that a Facebook message posted by Ms J after the release of the family report was “an attack in any way or shape or form”. He said it was evidence of “Ms J needing some sort of help and advice herself with her current situation and where she needed to go and what she should do”. He said further that he had “no worries” about the message Ms J sent to Ms Roper on 14 March 2017 about sending a food truck to her home.
However, when pressed on that subject further, Mr McKellar conceded that his partner’s behaviour had been inappropriate, referring to that text as “a burst out of line”.
Mr McKellar presented in a defensive manner under cross-examination, using every chance to justify his actions, particularly in relation to overholding [X] in late August-early September 2016, when the following exchange took place:
Counsel for the mother: These proceedings were started by you, weren’t they?
Mr McKellar: Yes
Counsel: Yes. Two days after you decided that you would not return [X] to the primary care of his mother?
Mr McKellar: Yes.
Counsel: That’s correct, isn’t it?
Mr McKellar: Yes.
Counsel: Now, there was no incident where [X] was harmed or was at risk. You made that decision because you wanted that change, didn’t you? You wanted [X]?
Mr McKellar: Yes.
Counsel: Yes. You put your desire first, didn’t you?
Mr McKellar: Yes.
In response to questions about Ms M’s view about the impact that [X]’s withholding from his mother would have had on him, Mr McKellar was again adamant that he did not believe that [X] had suffered any detriment from that withholding.
He said:
No, I don’t – I don’t think he has been traumatised or adversely affected due to that period.
He was aware that his Initiating Application had been listed for a date in November 2016, and that if Ms Roper had not issued proceedings for a Recovery Order, it would likely have been about two-and-a-half months before [X] saw his mother.
When asked about what Ms M had told him about the likely effect on [X] of that period of being withheld from his mother, Mr McKellar said:
I put to Ms M that I couldn’t understand, given the fact that he had been separated from myself for such a lengthy period, that obviously he – he would have suffered traumatic experiences from being taken away from myself as well.
Mr McKellar conceded that shortly after the court hearing which led to [X] being returned to his mother, he had asked Ms Roper to allow [X] to go on holiday to Queensland with him, Ms J and [A]. He had not booked the airfares until after that hearing on 8 September 2016, and did not see anything inappropriate in that request.
Mr McKellar’s evidence about the events of late August/early September 2016 evidence shows an appalling lack of understanding of his son’s emotional needs, and a rather self-centred focus on his own needs and what he perceives as his rights as a father.
Under further cross-examination, Mr McKellar conceded that he had not intervened to prevent Ms J from speaking harshly to Ms Roper at changeover.
When asked about his telling Ms Roper “Don’t you speak to my partner like that” when she had said “What the hell Ms J, really?” in response to Ms J’s comments about her being homeless, Mr McKellar denied that he was “telling her off”, saying it had been “just a way to get the conversation stopped. That was protecting my family”. He conceded that both [X] and [A] had been present at changeover when voices had been raised, although it was his evidence that they would not have been able to hear what was said.
When asked why Ms J attended at changeover at all, Mr McKellar referred to her presence as “a safety net”, although he does not seem to have elaborated on what he meant by that phrase. He conceded that Ms J had continued to attend changeover after Ms Roper’s solicitor had sent him a letter asking that she not attend because of the distress her presence was causing to [X]’s mother. When counsel asked: “You don’t accept that bringing in a third party at that point in time it might have been undesirable?”, Mr McKellar simply said: “No, I didn’t”.
When asked whether Ms Roper might have experienced the way Ms J spoke to her as emotionally abusive, the father replied as follows:
Ms Roper has in the past said that pretty much everything has been emotionally abusive, whether that be talking about causes of concern for [X] and that being an attack at her parenting (sic) but really I’m just trying to bring up the fact that his toenails are growing the wrong way and we need to work together to fix that.
In relation to the communication book the parties were ordered to use, Mr McKellar admitted that many of his entries were dictated to Ms J who wrote them in the book. The following exchange then took place:
Counsel for the mother: So did you dictate this to Ms J to write in the communication book?
Mr McKellar: Yes, I told her to write it.
Counsel: Right. So you carried on with belittling my client and trying to upset her, again with the comments about being homeless and poor, even after the text message exchange where she is confirmed that she was not?
Mr McKellar: Yes.
Counsel: Now do you accept that in continuing that conduct you were bullying and belittling my client?
Mr McKellar: At the time, no, I didn’t think about it like that. It was – I struggled with the communication book, I think we all have, and that was probably myself venting some frustration, which I know was not the right way to go, but that is what happened.
Her Honour: So at the time you didn’t see it that way, but now, on reflection, you can see that it might be interpreted that way?
Mr McKellar: Yes.
Later, Mr McKellar agreed that when he had taken [X] to a podiatrist about his ingrown toenails during the time that he withheld him in August/September 2016, he had not informed Ms Roper about the podiatrist’s identity and had not invited her to attend [X]’s appointment.
Mr McKellar made several references to his clearly-held belief that it was his mother’s lack of care that had led to [X]’s ingrown toenails and penis infection.
He expanded on [X]’s condition to say that the parties had been aware that [X]’s penis had been inverted for some time and that special care needed to be taken to keep it clean. He conceded that the parties had been to the doctor about this condition several times and that the incident of infection referred to in his affidavit was the only one of which he had any direct experience. Nevertheless, he continued to blame Ms Roper for that infection.
Despite all of that evidence, Mr McKellar stated that the communication between him and Ms Roper had improved considerably in the four months leading up to trial.
He denied under cross-examination by the mother’s counsel that “it has gotten a hell of a lot better in the last few months because you want the orders you want and you’re trying to put forward a different face to get them”. He said that “four months is a very good start”, while acknowledging that it would be a long time before real trust between him and Ms Roper could be restored given the history of the parties’ relationship post-separation.
He agreed that he had not been willing to speak to Ms Roper directly up to 18 October 2017, which was the date of the family report interviews. However, the following exchange then took place:
Counsel for the mother: My client says that it was your partner who was engaged in direct conversation with her at that time.
Mr McKellar: No, we definitely spoke. There were instances where I would speak and Ms J would suggest things in the conversation, yes.
Counsel: Okay. You’ve told the court, and you told Ms M, that, you know, the communication was by text message, didn’t you, predominantly with my client?
Mr McKellar: Yes.
Counsel: Yes. And are you telling Her Honour that the 18 October – your conversations or your relationship communicating with my client has improved since then, or are you saying that that is part of the improvement?
Mr McKellar: No, I believe our communications started to improve when we got home from holidays. So that would have been the start of October, it started to improve, because that was when we first sat down and had a proper conversation about [X]’s future.
Counsel: So where my client told Ms M that you declined to speak to her by phone, indicating you’re unable to record the conversation between them, “therefore it’s better we communicate only by text message,” you say that that is what you tell the court is your improved communication with my client?
Mr McKellar: This was a face-to-face conversation where Ms Roper had asked about trust and I had said that I’ve struggled with trust because of the prior intervention order, that’s why Ms J comes to swap overs with me; that’s why we write things down in books, so that we can remember what has happened. This was a 20 minute discussion that was held that day. It was a proper discussion. There was no – no – what’s the word – there was no derogatory comments. There was no accusations on either party. It was adults discussing their child’s future and what potential way we could go about it as Ms Roper didn’t want to go through with the report writing. So we were discussing our options on all of that.
Counsel: So you say there is one instance where you can tell the court that you had what you would call a positive communication with my client?
Mr McKellar: Yes.
Counsel: But it didn’t result in any agreement did it?
Mr McKellar: No, it didn’t.
Counsel: No, because you want what you want, being 50-50 shared care?
Mr McKellar: I put a proposal forward, yes.
Counsel: Yes. And you're not willing to budge from that, even in the face of the advice of an independent professional about what is in your son’s best interests at his age and stage of development, are you?
Mr McKellar: No.
Given the rigidity of that view, I find it difficult to believe that Mr McKellar’s version of “communication” is little other than a statement of what he wants.
Overall, I found Mr McKellar to be a genuinely loving father who wants to spend more time with his son and he genuinely believes that it would be in [X]’s best interests to live half time with him.
Nevertheless, I was not convinced by his evidence about communication having suddenly improved in the lead-up to the family report interviews and again in the lead-up to trial. I find that too coincidental to be satisfied that the communication between the parties is likely to be civil and without conflict in the future.
Mr McKellar gave his evidence in a rather defensive and somewhat self-serving manner, and it was difficult for him to even consider that any outcome other than the one he sought might be in his son’s best interests. He impressed as a rather rigid man who has tunnel vision when it comes to what he sees as his “rights”, and he is scathing of any other view.
Ms J’s evidence
Ms J swore and filed an affidavit on 15 January 2018 in support of Mr McKellar Application for [X] to spend equal time with each of his parents.
She sets out the history of her relationship with Mr McKellar and says that [X] and her son [A] were both happy when [X] lived half-time with her and Mr McKellar between January and March 2016.
Ms J says that she tried to develop a “cordial relationship” with Ms Roper but that Ms Roper was “not friendly”[4] towards her.
[4] Affidavit of Ms J sworn and filed 15 January 2018 paragraph 7
It is her evidence that after Ms Roper ceased the equal time arrangement for [X] in March 2016, [X] was not permitted to come to her and Mr McKellar’s home in Suburb D, and that “(s)he would not allow Mr McKellar to see [X] if I was present. She would only allow Mr McKellar to have [X] at Mr McKellar’s parents’ home”.[5]
[5] Ibid paragraph 9
Ms J then sets out the history of two intervention Order Applications made by Ms Roper against her in 2016.
In relation to the first, she denies allegations that she was aggressive towards Ms Roper and that she had pushed her up against a wall in April 2016. It is her evidence that she had decided to contest that Application with Mr McKellar and his father as supporting witnesses, but that Ms Roper had not appeared at the Suburb F Magistrates Court on 3 June 2016 and the Application was struck out.
Ms J describes the circumstances of the second Application as follows:
14.Ms Roper made a second attempt to obtain an intervention order against me after Mr McKellar took [X] to the doctor and the doctor diagnosed that [X] had two school sores on his leg. Ms Roper refused to believe that [X] had school sores and she took [X] to another doctor. Ms Roper said the doctor told her the lesions were either school sores, or possibly burns. Ms Roper immediately made a report to the police alleging I had inflicted burns on [X] and the police applied for an intervention order against me. The allegations were false. The court granted the police an interim intervention order against me. The police eventually withdrew the application, as there was no evidence that the school sores were burns.
Ms J claims that while the second Interim Intervention Order was in force, Ms Roper reported to the police that Ms J had breached it by going to her home and harassing her. Ms J says that she had been at home with Mr McKellar’s mother at the time of the alleged breach, and that when the police had spoken to her and Mr McKellar’s mother, they took no further action on the complaint.
It is Ms J’s evidence that she has “made every effort to improve communications between Ms Roper and me”[6] and that as a result, the relationship between the two women has improved greatly – even to the point where Ms J had bought some clothes for [X] and Ms Roper had thanked her for her generosity.
[6] Ibid paragraph 16
Ms J says that she and Mr McKellar are committed to building a life together and that she is willing to support him in any way possible in relation to [X]’s care, including conducting changeovers. She says she is also willing to assist Ms Roper “should she need my help at any time”[7].
[7] Ibid paragraph 27
At trial, Ms J gave some evidence in chief before being cross-examined by counsel for the mother.
It was her evidence, upon being questioned by Mr McKellar, that in the close aftermath of [X] being returned to his mother’s care on 8 September 2016, she, Mr McKellar, and Mr McKellar’s father had gone to Ms Roper’s home to collect a fridge and that there had been a conversation between Ms J and Ms G, the maternal aunt.
Ms J said that although the mother was present, she believed that what Ms J said had “pretty much (gone) in and out the same ear”. She said they, by which I assume her to have meant the mother and aunt, had called the police and she had gone to her car to write down what had happened. The conversation had apparently been about where [X] would be for the few days at the end of her holiday with Mr McKellar at a time when [X] was supposed to be in his father’s care pursuant to court orders. This was the incident which led to Ms Roper applying for the first Intervention Order against Ms J, that application having been dismissed when Ms Roper did not attend court.
She then gave evidence about Ms Roper’s second application for an intervention order which, she said, “was also thrown in the bin – or struck out”.
She was then taken to the events at changeover on 13 March 2016.
Ms J said that because [X] had been wearing clothes and shoes that did not fit him properly, she had asked Ms Roper if she would like some help. It is her evidence that Ms Roper had replied that it was “kind of hard because she was homeless”. Ms J says she then offered her assistance again in relation to clothing but that Ms Roper had not responded. She says that she had messaged Ms Roper the next day to ask if she needed “food and whatnot” because “I didn’t know her situation”.
She denied Ms Roper’s evidence that she, Ms Roper, had told her and Mr McKellar that she was not homeless, and that there was nothing wrong with the size of [X]’s clothing.
She said she sent the text message about the food truck to Ms Roper the following day “to follow up and make sure that if Ms Roper needed help or if [X] needed food or whatnot – I was in a position where I could send it to him via a food truck”. She said that she worked at an (employer omitted) and “I was trying to put out there to help”.
In relation to the Facebook post she had posted between the release of the family report and trial, Ms J said that she had simply been seeking advice from other mothers about her situation as a step-mother. It was her evidence that she was not aware that Ms Roper was also a member of that Facebook group.
She said that the relationship between her and Ms Roper was now “extremely civil” and that she and [X]’s mother could now communicate “without any of the drama, pretty much”. She said that on the weekend before the hearing she and Mr McKellar had taken [X] camping and that she had sent photos of him to Ms Roper to let her know how [X] was going. In Ms J’s view, the contact between her and Ms Roper as “definitely more consensual”, and she described a time when she had delivered [X] to his mother at her home by agreement and without incident.
Under cross-examination, Ms J gave evidence about the events surrounding Ms Roper’s applications for intervention orders.
She conceded that the second application had been made by the police, and that there was no mention in that application about Ms J having caused the injury to [X]’s leg by burning him. That is in direct contradiction to Ms J’s affidavit evidence where she had deposed that Ms Roper had told the police that Ms J had burned [X]’s leg.
She was then taken to her Facebook posts and text messages to Ms Roper, and was forced to concede, rather reluctantly, that her communication with Ms Roper had “on many occasions, been anything but cordial”.
In relation to the events leading to the court hearing on 8 September 2016, Ms J denied that she had known that Mr McKellar was going to keep [X] in his care until he did not return him on 27 August 2016. However, later she said that she had been “part of the decision” to withhold [X] because she was living with Mr McKellar.
When she was asked how Ms Roper might have felt when [X] was not returned to her, Ms J answered “probably a bit lost”.
It was her evidence that she had not explained to [X] why he was not going back to his mother as “it wasn’t my duty to explain anything”. When asked if she had answered any of the “panicked SMS messages or unreturned phone calls” that Ms Roper was making to try to discover where her son was, Ms J simply said: “I didn’t have any, so, no”. She did say that she knew about the multiple calls and messages Ms Roper made to Mr McKellar in the immediate aftermath of [X] failing to come home because “that would be the first thing to do”.
Ms J’s attitude to her lack of action in keeping the mother informed between 27 August and 8 September 2016 is exemplified in the following exchange:
Counsel for the mother: And you knew that the father didn’t answer the calls. You knew that he didn’t return the SMSes (sic in transcript) and provide my client with even a modicum of comfort by answering. You knew that, didn’t you?
Ms J: I believe there was a text that asked for her to come over for dinner.
Counsel: It wasn’t that night, was it?
Ms J: I have no idea what night it was.
Counsel: It wasn’t the next night?
Ms J: I just know there was a text.
In fact, later evidence show that the invitation to dinner had been offered on 5 September 2016, after Ms Roper had filed and served her Response seeking an urgent Recovery Order, and some nine days after [X] had been kept in his father’s care.
Ms J said that it was she who had “told Mr McKellar to send her a message and ask her for dinner, which he did, and that was it”.
She stated further that she had agreed with Mr McKellar’s decision to overhold [X] on 27 August 2016.
She did, however, acknowledge that keeping [X] in their care constituted a breach of trust between her and Mr McKellar and Ms Roper.
Ms J was forced to concede that the evidence given in her Affidavit contradicted that of Mr McKellar in that she had said that [X] had spent no time with Mr McKellar between March and August 2016 when he had spent some, albeit limited time with him each month or so.
She also conceded that the argument which led to the police making an Application for an Intervention Order against her for Ms Roper’s protection was about where [X] would stay for the two days that overlapped the end of Mr McKellar’s time with [X] and the beginning of a holiday that she and he were taking.
Further, it was her evidence that that had not been the first time that she and Mr McKellar had planned to go away on holiday at times when [X] was supposed to be in his father’s care. Another time had been when [X] was due to have his first surgery, and Ms Roper had asked that he be returned to her care from hospital at a time when he would normally have been in his father’s care. Ms J stated that in fact, she and Mr McKellar were to be away on the day that [X] was to be discharged from hospital and for the few days thereafter, but that she and Mr McKellar had not agreed that [X] should go to his mother, arranging rather for him to be discharged to his paternal grandparents’ care. It was only because Ms Roper insisted that [X] be discharged into her care that [X] did not spend those days with his grandparents.
In relation to the communication between her and Mr McKellar and the mother, Ms J was again forced to concede that it was Mr McKellar who continually blamed Ms Roper for any health issues [X] might have suffered, and that Ms Roper had provided information about doctor’s appointments and treatment in a civil and informative tone and in a timely manner.
Ms J said that she had attended changeover between the parties many times since March 2016 “for support” and that she had recorded those changeovers “for any discrepancies”. When asked what she meant by that, Ms J said that she had made the recordings so that if Ms Roper deposed to anything that contradicted the recording, Mr McKellar would be able to use that “discrepancy” in evidence against Ms Roper.
However, she then conceded that the recordings have never been used to contradict any of Ms Roper’s evidence, and that Mr McKellar had not produced any recordings to show Ms Roper behaving abusively or aggressively at changeover.
In relation to the incidents of 13 and 14 March 2017, Ms J directly contradicted not only Ms Roper’s evidence but that of Mr McKellar about what she had said on 13 March 2017 about Ms Roper being homeless, and she acknowledged that she has never produced the recording of that or any other changeover.
Ms J gave her evidence, which was inconsistent and contradictory in many aspects, in a confident, and even cocky manner. She was dismissive of the mother’s concerns about Ms J’s place in [X]’s life on several occasions, and found it very difficult to say anything positive about the mother’s parenting. She took no responsibility whatsoever for her own behaviour and she impressed as somewhat self-righteous and, at times, quite petulant.
When I asked her how she would feel if [A]’s father overheld him in the way that Mr McKellar had overheld [X], she said she thought it would be “hard” before stating that that would never happen because [A]’s father “hardly sees him”. She showed little capacity for either empathy or compassion where Ms Roper is concerned, and where her evidence conflicts with that of Ms Roper, I prefer the evidence of Ms Roper.
The mother’s evidence
It is the mother’s evidence that her relationship with the father was “tumultuous”[8]. She deposes that she “found him to be controlling to a point of paranoia” in that he “would vet my friends by looking them up on Facebook and undertake internet searches prior to allowing me to spend any time with them”.
[8] Affidavit of Ms Roper sworn 16 and filed 17 January 2018 paragraph 6.
She deposes that he was rude to her friends or refused to speak to them and she stopped inviting them to her home. He ridiculed and humiliated her in front of his family to the extent that they intervened and asked him to stop.
She says that the father controlled the parties’ finances by insisting that Ms Roper pay for household expenses while he paid for the rent, and by never letting her know how much he earned or how he spent his money.
Ms Roper deposes that Mr McKellar regularly abused her, “calling her fat, stupid or ugly”, and telling her that if she gained weight, he would “trade (her) in” or “sell (her) on eBay”[9].
[9] Ibid paragraph 11
She describes his behaviour on one occasion when her family visited for dinner thus:
The Applicant was furious as he did not want them to be there and during the course of the evening he constantly denigrated me putting down my cooking, my efforts to set the table nicely and my efforts in presenting the home in a clean state. I was embarrassed by his repeated comments and tried to ignore him. He then started pinching me on my arm and my side repeatedly after I told him to stop. I was trying to hide my tears, hoping that no one had seen or noticed. My sister and brother-in-law told him to stop which he then did, leaving the room in a huff and ignoring everybody for the rest of the night.[10]
[10] Ibid paragraph 12
The mother says that she was forced to return to work earlier than she wanted to because her maternity leave pay ran out and the father refused to support her. It is her evidence that the father expected her to contribute financially to the household as well as looking after the newborn [X].
She says that the father was “reluctant to assist me with the care responsibilities for our son, expecting me as the child’s mother to attend to these tasks. He would quite often complain that he had worked long hours, belittle my then employment and criticise me for living off him.”[11]
[11] Ibid paragraph 17
After separation, when the parties began week-about care arrangements for [X], Ms Roper deposes that Mr McKellar refused to provide her with information about [X]’s welfare, development or progress while [X] was living with him, and was uninterested in any events that happened while [X] was living with her.
She says that “the Applicant was not interested when I raised with him my concerns with [X]’s suspected hearing issues which impacted on his speech development. The applicant did not undertake his hearing exercises, toilet training routines and [X] would often come home disorientated.[12]” In addition, she says, on returning to her care [X] would not go to sleep until late and was distressed at bedtime. She says that “on many occasions” she was forced to sleep on the floor beside [X]’s bed before he would settle enough to go to sleep.
[12] Ibid paragraph 21
By late 2015, Ms Roper says she realised that the week-about arrangement was not working for [X] and she therefore sought the assistance of a Family Relationships Centre in an attempt to improve the parties’ communication about [X]’s care. It is her evidence that Mr McKellar told her he would not attend mediation, and that she then “ceased the Applicant’s spend time arrangements as a result of his increasing threats and his unwillingness to discuss issues concerning the care and welfare of our son”.
It is the mother’s evidence that when the father re-partnered with Ms J in January 2016, he told her that Ms J would be the person who negotiated [X]’s care arrangements with her, and that there would be no more direct contact between the father and her.
Ms Roper deposes further to feeling intimidated and threatened by the behaviour of the father and Ms J, and that she therefore sought and obtained an intervention order against Mr McKellar, a final order being made on 17 August 2016 on a “without admissions” basis.
Ms Roper then deposes that she had agreed to [X] spending time with his father for Mr McKellar’s birthday, and that the arrangement had been that Mr McKellar would pick [X] up at 10 a.m. on 2016 and return him at 5 p.m.
It is her evidence that Mr McKellar sent her a text message at 3:59 p.m. on that day saying that he would be keeping [X] in his care and that he did not return [X] at 5:00 p.m. as previously arranged.
She says that all efforts to contact him after that time were ignored by the father, and that on Monday, 29 August 2016 she sought legal advice which led her to prepare to issue proceedings in this court for [X] to be returned to her care. However, upon attending at the court she was informed that the father had already issued proceedings to obtain parenting orders in relation to [X].
It was not until more than a week later, on 6 September 2016 that she was able to file an Application in a Case seeking a Recovery Order for [X].
That Application was abridged, and [X] was returned to her care on 8 September 2016 pursuant to orders made on that day. [X], then not quite three years old, had not communicated nor spent time with his mother since 27 August 2016, some 13 days.
While Ms Roper describes [X] as “overjoyed to see me” on 8 September 2016, she says that he was traumatised by being separated from her for so long. She deposes as follows at paragraph 43 – 45 of her Trial Affidavit:
43. […] He was extremely clingy however and for a period of up to three weeks displayed highly anxious and unsettled behaviour.
44. If I left the room [X] would panic and call out my name loudly then follow me. It did not matter where we were or who else we were with at the time, he did not want to leave my side. […].
45.Bedtime was particularly difficult for [X] as he would not sleep in the room unless I sat beside his bed. He would hold tightly onto my hand and stare at me until he could not keep his eyes open and I would wait for a short period and then slowly try to pull my hand away. On a number of occasions he would jolt awake and cry for me. It took approximately one week of me sleeping on the floor next to his bed then another sitting by his bedside and holding his hand until he fell asleep. By the third week I was slowly able to establish a bedtime routine for him.
Ms Roper deposes that she informed the father of her concerns about [X]’s distress, but that he had simply replied that [X] had not been showing any such signs of distress at his home.
On 13 September 2016, only five days after the making of the orders, Ms Roper says that Mr McKellar sent her a text message “demanding that [X] spend time with him from 21 October 2016 to 1 November 2016 as he had booked and paid for airfares for [X] to accompany him on a family holiday”. The mother says that the father had not previously notified her of his holiday plans and he did not mention them at Court on 8 September 2016.
Understandably, Ms Roper did not consent to Mr McKellar taking [X] away on holiday and notified him of that fact through her solicitor.
On 10 October 2016, there was a misunderstanding between the parties as to the changeover venue, with Ms Roper believing that it was to be at [X]’s kindergarten and Mr McKellar believing it was to be at the alternative venue specified in orders. Ms Roper says that Mr McKellar verbally abused her when she called him and asked him where he was. She says that as [X] had not been at his kindergarten that day, and she believed the kindergarten to be the changeover venue, she thought Mr McKellar had again overheld [X], which, she deposes, caused her enormous stress and anxiety.
Furthermore, the mother deposes that on 27 October 2016 she was contacted by Centrelink[13] who informed her that her child support payments would be ceasing because Mr McKellar had told them that [X] was in his care for 100% of the time. She was understandably “shocked” to receive that information.
[13] This may be an error as it is the Department of Human Services (Child Support) (DHS) who administer the child support system, but it is possible that Centrelink contacted Ms Roper to inform her about changes to her Family Tax Benefit payments because of Mr McKellar’s notification to DHS that he was caring for [X] full time.
Ms Roper then provides some seven pages of examples of the parties being unable to communicate well in [X]’s best interests, including the following:
· on 3 October 2016, [X] fell over at his day care centre and sustained a large scratch to the left side of his face near his eye. Ms Roper took him to the doctor where [X] was treated, and assumed that the day care centre had told Mr McKellar of the incident. When she raised his ongoing care of the wound with Mr McKellar he responded rudely with sarcastic comments and demanded copies of the doctor’s reports which he could have obtained himself from the medical clinic under the orders of 8 September 2016.
· on 6 October 2016, Mr McKellar refused to consent to [X] remaining in his mother’s care after tonsillectomy surgery, despite the fact that he and Ms J were going on holiday at the time and [X] would have been staying with his paternal grandmother. Ms Roper insisted on [X] leaving hospital into her care and remaining with her until he had recovered.
· On 13 March 2017 there was an incident at changeover, described as follows in the mother’s Trial Affidavit:
77. Upon arrival I noticed Ms J and the Applicant had arrived in separate vehicles. After I entered the playground and greeted [X], I picked up his bag and turned to thank the Applicant and Ms J whilst I waited for [X] to come down from the play equipment. Ms J indicated in a derogatory tone “can you not afford clothes for [X]? Are you homeless?[14]
78. I was taken aback by her comment and asked her what she meant. She answered loudly “well it has taken us all morning (sic) to get that shirt over his head that you sent him in, all clothes you send him in are too small”.
79. I was embarrassed by the loud and untrue comments made by Ms J and sarcastically replied “yes Ms J I'm homeless”. I felt highly anxious by the situation (sic) and took a step back and drew in a deep breath. I uttered words to the effect “I am not homeless, [X] is 3 years old and wears size 3 clothing. There is nothing wrong with the way he is dressed”.
80. Ms J approached me pointing her finger and uttering words to the effect “as his mother are you happy with the state you keep him in?”.
81. I did not want to cause a confrontation and asked her to stop interrogating me. I answered her question “yes” and she provocatively indicated “we have plenty of money if you can’t afford to clothe him, you need to let us know so we can”.
[14] All direct quotes in this section of the mother’s Trial Affidavit are written in bold type in the original.
82. The applicant sat beside her at that point saying nothing and smirked at me.
· On 14 March 2017 the mother says she received the following text message from Ms J:
Morning Ms Roper. May I ask where you are at least staying until you find a home or some form of house, so I can send a food truck from work within the next few days and get some food across to you to help with [X].
Ms Roper deposes that she replied to Ms J telling her that she was not homeless and did not need food, and that Ms J well knew her home address. She also asked Ms J to refrain from speaking to her “the way you do” at changeover.
Ms Roper’s evidence is that she then received the following text from Ms J:
“So you lied to both myself and Mr McKellar last night? Why would you do that? You also lied about having a job aswell? (sic) Will we ever have an honest conversation from you? Playing with [X]’s well-being and lying about things causing stress for us is not acceptable behaviour from someone who is supposed to be one of [X]’s role models. Ms Roper you alleged you were homeless I have it all recorded as I do for every swap to eliminate any misunderstanding within the 2018 court hearing. So you just lied again. This is beyond a joke. I do have concerns about the breaches you have made recently, and his behaviour, his well-being, his speech, his horrible joke of a day care and how behind he is. You do not even speak to Mr McKellar, you harass him like you did at the specialist in front of [X]. I will address it to the court, seems as someone needs to fight for [X]’s future stability. If you refrained yourself (sic) from the constant lies we might not be where we are today, and [X] could have two civil families like he deserves. Have a great day”.
· On 2 May 2017, after receiving notification from the Children’s Hospital, the mother instructed her solicitors to write to the father informing him that the Hospital had informed her that [X] had been booked in for surgery to treat an undescended testicle on 2017. Again she asked Mr McKellar to consent to [X] being discharged from hospital into her care after his operation on a weekend that he would have spent with his father pursuant to the orders of 8 September 2016. She deposes that she offered make-up time to Mr McKellar for the weekend of 12 May 2017.
However, Mr McKellar refused that request and threatened contravention proceedings if [X] were not provided for his time with his father on the weekend of 5 May 2017. Ms Roper, not wishing to inflame the matter further, organised with the Hospital for [X] to have his surgery in a week leading to a weekend when he would be in her care.
It is the mother’s evidence that conflictual incidents such as those described above were typical of the relationship between her and the father and his partner until mid to late 2017, when, she says, “our communication improved” for a few months and the parties were able to negotiate some variations to the orders of 8 September 2016 for [X]’s benefit.
She says that she and the father were able to meet and discuss [X]’s future care arrangements civilly, but that after she rejected his proposals for final resolution of the dispute, which included proposals that [X] return to the equal shared care regime and that they enter into a private child support agreement, and after the release of the family report of Ms M on 9 November 2017, “his demeanour totally changed”. She deposes that Ms J “posted a rant” about her on a public Facebook page, and the relationship between the father and her again deteriorated into conflict.
At trial, Ms Roper confirmed that her Affidavit material filed in the proceedings was true and correct and was then asked some further questions by her counsel about evidence given by Mr McKellar and Ms J.
Ms Roper confirmed that her relationship with Mr McKellar and Ms J had improved, but was not prepared to say that the improvement was “significant”. It was her evidence that the improvement had come only in the two months prior to trial. She was clear that the improvement in relations between her and Mr McKellar and Ms J had not been over the past six or even four months.
After some clarification about who might have been able to access the Facebook message posted by Ms J, Ms Roper stated that anyone who was a member of the site could have seen that message. On the evidence of both Ms J and Ms Roper, the site has up to 11,000 members.
She then underwent cross-examination by Mr McKellar.
It was her evidence that she had attempted to speak to Mr McKellar about her concerns about [X] not coping with the week-about regime that had pertained between the date of separation and March 2017, and that she had only ceased that arrangement “after I felt threatened”. She said that after the week-about arrangement was terminated she had asked Mr McKellar “a lot of times” if he would like to see [X], but that “unless it was in your circumstances, the way you wanted it, you declined”. She said that Mr McKellar had “accepted to see him” four times in the five month period leading up to [X] being overheld on 27 August 2016.
Ms Roper was unwilling to accept that [X] might have suffered any trauma from being suddenly cut off from spending half his time with his father, saying that the lack of significant time spent between [X] and his father from March to August 2016 was the choice of Mr McKellar.
It was her evidence that she had not seen any evidence of the absence of his father being “damaging” to [X] during that period, despite conceding that Ms M’s report stated that an absence of two weeks from her would certainly have been traumatic for him.
In relation to the events of 12-14 March 2017, Ms Roper stated that she believed that both Mr McKellar and Ms J had heard her say, after she had said “Yes Ms J, I’m homeless” in a facetious fashion, that she was not in fact homeless and that there was “nothing wrong” with the way [X] was dressed.
Ms Roper conceded that it had been she who had initiated a meeting between the parties prior to the family report interviews and that the parties had discussed her wish to avoid the family report, saying:
It was about avoiding the family report writer, as I wasn’t sure what to expect, and I was – I didn’t want [X] to be confused any more than he already had (sic). So I was trying to avoid that, and maybe come to an agreement between Mr McKellar and myself, without having to see the family report writer. But that didn’t happen.
She conceded that she had said during that conversation that she would be moving in March 2018, that she intended to move to Town C, and that in those circumstances it might be possible for [X] to spend more time with his father, but she was adamant that she had not told Mr McKellar that she would revert to their previous equal time arrangement at that time.
When pressed, Ms Roper said at first that she would not be “comfortable” with [X] spending more than a week with his father, but was forced to concede that she had allowed [X] to stay with Mr McKellar and Ms J for nine consecutive days over the recent summer holidays. She stated that it had been a little difficult to get [X] resettled after that period, but that “it was just expected”. It was clear from that evidence that Ms Roper was not averse to [X] spending extended time with his father, but that she did not believe that a week-about regime would work for him at his current age.
Under re-examination by her counsel, Ms Roper stated that while she worked casual hours, she was forced to place [X] in child care, where he was in the four-year-old kindergarten program, for five days a week in order to secure his place on the days that it was needed. For instance, it was her evidence that Mr McKellar had [X] in his care on each alternate Monday but that she had nevertheless had to pay for him to be in child care on that day in order to secure his place on other days.
She stated that she would be moving because her lease was expiring, and that Mr McKellar’s plans to live on his property in Town C had had “a lot” of influence on her consideration to move to that area. She said that she was considering that move so that [X]’s transfer between her and Mr McKellar would be smooth, “especially for the Wednesday night”.
Under questions from the bench, Ms Roper confirmed that her relationship with Mr McKellar and Ms J had improved slightly in the lead-up to the family report interviews, that it had deteriorated again in the immediate aftermath of the report’s release, and that it had again improved again in the lead-up to the trial.
She said that she would like to have “just an amicable relationship” with [X]’s father and his partner, but that “I just believe it hasn’t really been shown so far. Bits and pieces, yes. But as soon as something goes not in their favour, it goes sour again”.
Ms Roper said it was the way Mr McKellar and Ms J spoke to her as much as what they said that was difficult, and that when they said things like “Can you not buy clothes for [X], because they’re too small?”, she saw that as an attack on her parenting.
She acknowledged that she had moved fairly frequently since the time of separation, saying that it was usually due to leases expiring, but she also attributed that situation to the trauma she felt she had suffered as a result of the breakdown in her relationship with Mr McKellar and of [X] being overheld. It was her evidence that “it took me a while to move past that”. She said that now that she is studying and working in a stable job, it is her expectation that she would have [X] enrolled in school in 2019 and that she would not be moving away from that school’s area.
The mother impressed as a woman who loves her son dearly and who wants only what is best for him. She feels oppressed by what she sees as the alliance of Mr McKellar and Ms J against her.
Nevertheless, her own behaviour has not been perfect at times, in that she has moved a significant number of times, her care in relation to [X]’s hygiene may have been less than adequate, and she did little to ensure that [X] spent time with his father in the period between March and August 2016. She also lacked some insight into the effect of that separation on [X].
Overall, I found her to be an honest and credible witness who was able to make statements against her interest when that was necessary.
The expert evidence
Ms M’s family report, dated 9 November 2017 (“the family report”), was released to the parties on 10 November 2017.
Ms M describes the father thus:
11. Mr McKellar presented as a parent keen to be involved in his child’s upbringing. He impressed as a resolute and headstrong person who at times followed his own rules, even others considered it unconventional or unacceptable (sic). It was clear that he was disappointed with the outcome of the previous hearing, which made him return [X] to the mother. He considered that the legal system favoured women and gave more rights to mothers. What seemed clear to Mr McKellar was that he loved [X] and [X] enjoyed being in his company and that is what motivated him to make certain decisions in relation to parenting aspects relating to [X].
She reports the father as saying that he had decided to withhold [X] in his care in the weeks before this matter first came to court because “he had missed his son greatly”[15]. When Ms M asked him whether he considered whether that decision was of benefit to [X], Mr McKellar told her that he had not seen evidence of any trauma to [X] either during or after those 13 days that [X] spent in his care.
[15] The family report paragraph 17
Ms M then reports the father as saying “that he would not hesitate to make the same decision in the future if he considered that such action was necessary”[16]. I note that the father’s evidence is that he had said that he would not hesitate to repeat his behaviour only if he thought it necessary to protect his son’s welfare.
[16] Ibid
Mr McKellar is reported as having “had difficulty understanding why the mother was given more rights than the father in relation to spending time with their son”[17], saying that he wanted a meaningful relationship with [X] and that the most beneficial regime for [X] would be an equal shared care regime.
[17] Ibid paragraph 18
He denied to Ms M that “he was in any way abusive to the mother during the relationship”[18].
[18] Ibid
Later, under the heading “Evaluation and Recommendations”, Ms M states the following in relation to the father:
43. The mother describes her relationship with Mr McKellar was intimidating and coercive. The father denies any physical violence during the relationship. That may be true, but the writer observes that the father’s personality is quite intense and wilful. It appears that Mr McKellar is slow to learn from his past experiences and fails to thinks broadly about the impact/consequences of his actions on the people around him.
Ms M says that Mr McKellar keeping [X] in his care without him seeing his mother “is sure to have emotionally rattled the child and the mother. Mr McKellar refuses to believe that his actions have proven emotionally damaging to his son or that [X] has suffered negative consequences as described by the mother”[19].
[19] The family report paragraph 44
She then goes on to say:
45.More concerning matter (sic) is that Mr McKellar indicates that he would not hesitate to do the same again if he believes it is necessary. He argues that it is wrong to say that a father abducts his own child. He needs to realise that even if there are concerns about mother’s care (sic) of the child in the future, there are better options ensure child’s safety (sic) than withholding the child.
46. The research in the field indicates that withholding a child by a parent can cause the child to experience hypervigilance, nightmares, bedwetting and toileting issues, fear of authority and strangers, anger at the withholding parent and left-behind parent, depression, anxiety, school and peer problems. Even if the child does not exhibit problematic behaviour overtly, the child’s internal world may become chaotic and unbalanced. Aside from being suddenly uprooted from his familiar routine, the child may also come to believe that the other parent has abandoned him and not able to understand (sic) why the other parent has failed to find him
Ms M does not make observations about the mother’s personality or character in the same way as she does about the father.
She reports Ms Roper as describing Mr McKellar as “an extremely possessive and coercive partner who wanted to control every aspect of her life. During the relationship she found him to be forceful and intimidating. He apparently wanted her to follow the directions given by him where and how she lived, whom she moved with and how the money she earned was used during the relationship. She remarked that her relationship with Mr McKellar was tumultuous due to her partner’s erratic behaviour and swift mood swings. She alleged that the father used verbal abuse to put her down, making derogatory remarks such as she was ‘fat, ugly and stupid’ and hit doors and objects around the house to intimidate her”[20].
[20] The family report paragraph 21
Ms Roper is described as being “tearful” when she told Ms M that the father had put “immense pressure” on her to agree to the week-about arrangement for [X] at the time of separation “making her scared and confused”. Ms Roper is reported to have said that Mr McKellar had told her that if she did not agree then he would “make sure to damage [X]’s relationship with her at every opportunity”[21].
[21] The family report paragraph 23
Ms Roper told Ms M that even then, she had only ever agreed to the week-about regime as a trial period for some months and that her agreement was conditional on Mr McKellar living with his mother.
She further “cried a lot” when recalling the father’s withholding [X] from her in August-September 2016. She told Ms M that she had lost her job as a result of having to attend to the court matters and that the father’s overholding was “the most traumatic experience of her life”. She also reported that after his return to her care on 8 September 2016, [X] “had become a highly anxious child, clinging to her and refusing to be separated from her for several days. His toilet training behaviour had regressed, and his sleep routine totally disrupted. She shared that when she shared her concerns with the father she was either ridiculed, totally ignored or treated with condescending remarks by the father”[22].
[22] The family report paragraph 30
Ms Roper told Ms M that she had lost trust in the father’s ability to prioritise [X]’s needs over his own.
She specifically denied to Ms M that she had told Mr McKellar that she would agree to an equal shared care arrangement if she moved to Town C.
Having observed [X] with each of his mother and father[23], Ms M describes his relationship with his parents thus:
37. [X] seemed to have a positive relationship with both parents. His interactions with his father were based mostly on loving but verbal exchanges. [X] seemed to enjoy playing with his father and was happy to follow the directions given by his father. [X] demonstrated a physically affectionate relationship with his mother. During the conversation between the mother and son, [X] referred to his mother’s home as ‘our home’ and his comfort seeking behaviour in his mother’s presence indicated that [X] perceives his mother as his primary caregiver.
[23] I note that Ms J did not attend for the family report interviews as she was required to be at work
Ms M was quite critical of the “reported aggression and high handedness by the father’s partner”[24], although she noted that not having spoken to Ms J she was unable to comment further on that issue other than to say that if Ms Roper’s description of Ms J’s behaviour were correct, Ms Roper’s decision to bring the equal shared care regime to an end was “reasonable”.
[24] The family report paragraph 41
In relation to Mr McKellar’s application to reinstate the week about regime, Ms M states:
49. The writer believes that mutual trust and respect and an ability to follow the rules set in relation to the child rearing aspects are essential for a smooth working of a week about care. That is lacking in this case. Moreover, the child is very young and needs consistent of care (sic) and constancy of carer. [X] is primarily attached to his mother and is settled well in the current regime. Based on all the information available, the writer is of the view that a week about regime is unlikely to work well for the child in this case.
It was her recommendation that the parties retain equal shared parental responsibility for [X], that he continue to live with his mother, and that he spend alternate weekends Friday evening to Monday evening, and Wednesday overnight in the off week with his father. Special occasions such as birthdays, Christmas and Easter should be shared between the parents.
Ms M also makes recommendations in relation to school holiday periods and how the parties should communicate, and she posits that the mother should have the final say in relation to where [X] attends day care/kindergarten/school in the event the parents cannot agree on that issue.
At trial, Ms M affirmed her report and underwent cross-examination by the father and counsel for the mother.
Under questioning by the father, Ms M agreed that [X]’s trauma at being withheld from his mother in August-September 2016 would also have been his response to seeing his father only four times in five months before that time, as “any change in ongoing routine for a young child is disruptive”.
Ms M said she had not considered a four night/three night arrangement for [X] because neither party was proposing such a regime, there was uncertainty about the mother’s living arrangements, and she considered that the father had “a lack of understanding about the impact of such drastic change on a young child”.
She said that she had expected Ms J to attend the family report interview because of the allegations against her in relation to the incident leading to the second Intervention Order application, and her “vital part” in the relationship between the parties as [X]’s parents.
Ms M said she had not contacted Ms J to specifically invite her to the interviews because “I considered that it was her responsibility” to enquire whether Ms M would like to see her. If she had done so, Ms M said she would have made an appointment with Ms J.
Under cross-examination by counsel for the mother, Ms M set out the miscommunication between the parties when they met to discuss their dispute in the lead-up to the family report interviews.
In a rather insightful analysis, she said that the father says that he was trying to communicate with the mother but that Ms Roper was not willing to communicate with him, while the mother experienced the conversation as Mr McKellar putting pressure on her to agree to equal shared care. Mr McKellar (perhaps optimistically) heard Ms Roper say that she was moving to Town B and that the previous shared care arrangement could be reinstated, whereas Ms Roper had not said that at all. She had merely said that she was considering moving to Town C and that if she did so, it would be practicable for [X] to spend more time with his father.
Ms M confirmed her recommendation that equal shared care would not be suitable for [X] because of his age and stage of development, because of the acrimony between his parents, and particularly because of Mr McKellar’s inability to see any point of view that did not agree with his.
She said that Mr McKellar was fixated on [X] living with each of his parents equally because that had been the previous arrangement, and because that would be fair to him (Mr McKellar). It was Ms M’s opinion that Mr McKellar lacked insight into the effects of his behaviour and its impact on [X] and that he was “arrogant” in his views, describing him as “quite a rigid personality, and he sees life very – in a – not in a broad way”. She said that she had spoken to him about child development and [X]’s needs for about ten minutes but that she did not think he had heard “anything I was saying”, and so she “gave up talking about it”.
Ms M said that she thought the father’s evidence about [X] not having displayed any symptoms of trauma or disturbance while he was with him “indicates to me that the parent is not really – really aware of subtle changes in the child, or – because given his personality trait that once he believes something is there, that’s the way it is, so he may not have noticed any of that”.
She said it was not unusual for children to behave in different ways with each parent, or for them to regress when returned to their primary carer because they might feel “I’m home now, I can relax and be myself”. Ms M said she had no doubt that the mother had been telling the truth about [X]’s behaviour when he was returned to her care on 8 September 2016.
In relation to the relationship between the parents in this case, Ms M responded to a question about her view that the father had a “critical attitude towards the mother” by saying: “More than critical. I think dominating. He is quite dominating, and “I say and you do”.” She gave the example of the father seeking to take [X] away on holiday only days after the hearing of this matter on 8 September 2016 when [X] had been returned to his mother’s care, saying “That’s dominating in my view”.
It was her opinion that the dynamics created by that “dominating” behaviour, which would result in Ms Roper feeling anxious and vulnerable, would certainly have an impact on [X].
When asked about Mr McKellar’s view that Ms Roper was hindering his relationship with [X], Ms M stated that in her opinion, Mr McKellar saw any behaviour on Ms Roper’s part that was not directed at restoring the previous shared care arrangement was “hindering his relationship with the child. It is as simple as that”.
She agreed with counsel that Mr McKellar “doesn’t seem to be able to see the impact of his behaviour on my client, nor any potential impact or actual impact it is having on [X]”, saying: “Yes. On anyone. Like, I’m speaking – I’m doing assessment, and he is saying these things and I’m coming with certain opposing views, but he doesn’t recognise that. He just goes on saying what is on his mind”. Ms M said she thought that that behaviour was inherent in Mr McKellar’s personality and not simply part of the dynamic in his relationship with Ms Roper. She saw him as “not able to move from there”.
Ms M agreed with counsel that there was very little if any trust between the mother and Mr McKellar and Ms J, and that “it’s essential, is it not, for a successful week-about regime that parents can trust each other?”
She said that Mr McKellar was genuine in his belief that his behaviour (and that of Ms J) in relation to Ms Roper was acceptable, and that that was another factor that would make an equal shared care arrangement “very disturbing to this child”.
Nevertheless, she confirmed her view that the relationship between [X] and his father was close, appropriate and loving, and that [X] should spend substantial and significant time with Mr McKellar.
The Law
An order about where and with whom a child should live is a parenting order as defined in s64B of the Family Law Act 1975 (Cth) (“the Act”)
The law in relation to parenting orders is found in Part VII of the Act.
The objects and principles underlying Part VII are set out in Section 60B and I set those objects and principles out here for the benefit of the parties:
(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 and 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 makes clear that when a court is making a parenting order, its “paramount consideration” must be the child’s best interests and I will turn to that very important issue shortly.
The parties in this matter have agreed that they will continue to have equal shared parental responsibility for [X].
S.65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility as follows:
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
65DAE No need to consult on issues that are not major long‑term issues
(1) If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a) has parental responsibility for the child; or
(b) shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major‑long term issues.
Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long‑term issues.
The parties’ agreement that they should equally share parental responsibility for [X] has the consequence, under s.65DA of the Act, that the Court must consider whether it is in [X]’s best interest for him to spend equal time with each parent. S.65DA of the Act reads:
(1) Subject to subsection (6), 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.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
I note that the legislative requirement is to consider whether it is in the child’s best interests to consider making an order for equal time, and not to make an order for equal time.
S60CC of the Act sets out the issues the court must consider when deciding what orders to make in a child’s best interests and I will consider the evidence in relation to each of those issues in turn.
s.60CC 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.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The meaning of the word “meaningful” in s.60CC(2)(a) has been discussed in several cases in this Court and in the Family Court of Australia[25].
[25] See, for instance, Brown J’s remarks in Mazorski & Albright [2007] FamCA 520 or Cronin J’s remarks in Tait & Densmore [2007] FamCA 1383
As one would expect, “meaningful” is said to mean “important”, “advantageous”, “significant”, “valuable”, “healthy”, and “worthwhile” to the child. It is said to involve the parent providing a positive role model to the child so that the child learns what it is to be a productive member of the community, and indeed what it is to be a parent.
In Mazorski & Albright,[26] Brown J made the point that the word is a qualitative adjective rather than a quantitative one. That is, the meaningfulness of the relationship between a child and his/her parents depends not on the amount of time spent with them, but on the quality of that time.
[26] Mazorski & Albright [2007] FamCA 520
In this case, it is clear from the evidence before the Court that [X] has a “meaningful” relationship with both parents. He loves and is comfortable with both, although Ms M is clear that his primary attachment is to his mother.
However, the Court does have some concerns about the role model shown to a child when his parents are in clear conflict about his care arrangements, and more particularly when one of the parents is unable to compromise or see the world from any point of view but his own.
In this case, it is possible that [X] will learn that being a parent means being in conflict, that parents do not agree about their children’s care, and he may even come to believe that the is the cause of that conflict.
If he is to continue to have a “meaningful” relationship with both parents the conflict between them must simply end.
The need to protect [X] from harm extends to his emotional welfare, and that means I must craft orders that protect him as much as possible from the conflict between his parents.
Additional considerations
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;
[X] is three years old. Even if we knew what his views were about his parenting arrangements, he is too young for those views to be given any weight in circumstances where he is said to have a positive and loving relationship with both parents.
(b) the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
There is no evidence to show that [X]’s relationships with each of his parents is other than loving, affectionate and appropriate.
(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; and
(ii)to communicate with the child;
Both parents have taken the opportunity to participate in making decisions about [X]’s care, although they are unable to agree on the detail about how that care should proceed.
They have both sought to spend time and communicate with [X] as much as possible.
(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;
The question of child support was not raised at trial, apart from the issue of Mr McKellar having told the Child Support Agency that he had full care of [X] in late August 2016, and there is no reason to believe that Mr McKellar is not currently paying child support for [X] as assessed.
(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;
[X]’s parenting circumstances have been stable for almost the past two years, in that he has lived with his mother and spent substantial and significant time with his father pursuant to court orders since 8 September 2016.
The father wishes to change [X]’s circumstances so that he lives in a week-about regime with each parent. He says that the current regime separates [X] from him and from his partner, Ms J and from her son [A].
The mother wishes to continue the current regime, which she says has been working well.
Apart from some changeover issues, and the clear animus between the parties, there is no evidence that there has been any negative effect on [X] from the current regime.
However, Ms M’s evidence is clear that she believes that a return to an equal shared care arrangement would be detrimental to [X] because of the conflict and absence of trust between his parents, and because of the father’s inability to compromise.
(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;
If the father moves to Town B in about 2019 as planned, and the mother moves to Town C, as she says is her intention, there will be little or no practical difficulty or expense associated with [X] living either in an equal shared care regime or with one parent and spending time with the other.
While Mr McKellar’s move is more likely because he has bought the block of land on which he plans to build a house for him, Ms J and their respective sons, the whereabouts of Ms Roper’s future accommodation is less certain.
If she moves further away from the father, there may well be practical issues involved with [X] spending time with him, perhaps to [X]’s detriment.
(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;
There is little doubt that both parties are able to attend to and provide for [X]’s material needs – he is well housed, clothed and fed, although the Court does have some concerns about Ms Roper’s attention to his personal hygiene as evidenced by the photographs of his toenails and the infection in his penis. Those concerns are minor in the scheme of things and do not, on their own, warrant removing [X] from her care.
It is in the realm of [X]’s emotional needs that the Court has some significant concerns.
The mother not ensuring that [X]’s relationship with his father continued in a stable and consistent manner after the equal shared care regime ended in March 2016 shows some lack of understanding of [X]’s emotional needs, although the behaviour of Mr McKellar in overholding [X] on 2016 when he had asked to spend time with [X] for his birthday is much more concerning.
It is even more concerning that Mr McKellar still sees nothing untoward about his behaviour at that time, and his explanations for keeping [X] from his mother at that time displayed a “tit for tat” attitude that does not portray him in a positive light.
It must be said that Ms Roper, too, was unable to see that [X] having a much reduced relationship with his father in the period between March and August 2016 might be a problem for [X].
Mr McKellar will need to learn to recognise [X]’s needs, and to put them before his own if he is to be the good parent that he thinks he is and wants to be.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The overall impression I had of all three lay witnesses in this matter is one of considerable immaturity, but more especially on the part of Mr McKellar and Ms J, whose evidence was inconsistent and self-serving and whose manner was defensive and at times surly during the trial. They were unable to reflect on their past behaviour in any mature fashion, and appeared to approach the proceedings as a battle between them and Ms Roper, with [X] as the prize.
Ms Roper, while not impressing as overly mature, was at least able to reflect on the consequences of her behaviour and to put [X]’s interests before her own. She understands that [X] has a good relationship with his father and that he needs to continue that relationship if he is to grow up in an emotionally healthy way.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant factor in the current proceedings.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The attitude of the father to [X], and to his parental responsibilities to and for him, is one that is based on his rights as a father, rather than on his responsibilities for [X].
I have no doubt at all that Mr McKellar loves his son dearly and that [X] loves him and the time he spends with him, but while that love is a solid foundation for a positive and healthy interpersonal relationship, it is not enough to found an appropriate and mature parental relationship.
Mr McKellar will have to learn about the necessity to see beyond his own needs in relation to [X] and to foster [X]’s needs, even when they clash with his own. Only then will he have a truly meaningful parental relationship with his son.
Ms Roper’s attitude to [X] and to her parental responsibilities shows a broader approach. She sees [X] as a person in his own right and as someone for whom she might need to make compromises or sacrifices from time to time.
It will be important for her to realise that [X] needs to have stability of accommodation over time and to take measures to ensure that she can provide that stability.
(j) any family violence involving the child or a member of the child’s family;
The behaviour of Mr McKellar and Ms J on 13-14 March 2017, where the mother was taunted about her financial and living circumstances and was then subjected to further verbal abuse by text messages over the next couple of days, certainly fits the definition of family violence in the Act.
So does the coercive behaviour of Mr McKellar in overholding [X] from his mother and essentially holding him for ransom until she agreed to return to the previous shared care arrangement. I note that it was only the intervention of the Court that returned [X] to his mother at that time.
Ms M’s view of Mr McKellar was that he was a “dominating” person, and he would do well to reflect on that view if he has any insight at all.
(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;
Ms Roper’s evidence is that she obtained a final Intervention Order against Mr McKellar in August 2016 on a “without admissions” basis. She does not appear to have been asked about that Order at trial.
She has also applied for two family violence orders against Ms J, and I note that while neither application was granted a final order, and one was dismissed because Ms Roper failed to appear at court, the Applicant in the other was a police officer.
(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;
[X] is not yet four years old. It is almost impossible to make orders that will be relevant until he is 18. However, it is possible to make final orders in relation to his present and near future, and it is certainly in his best interests for that to happen.
(m) any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that the Court thinks is relevant in this matter.
Decision: Issue A
When I take all the above evidence into account, and in light of the matters set out in s.60CC of the Act, I find that, on balance, it is in [X]’s best interests to live primarily with his mother.
She has been his primary carer for most of his life, and her evidence and behaviour show a more child-focussed attitude to his parenting, and especially to his other parent, than do those of Mr McKellar.
In addition, I am not satisfied that the relationship between the parents has the required level of trust and communication to successfully support an equal shared care arrangement.
Issue B. How much time the child should spend with their non-resident parent
S.65DAA(2) of the Act sets out the obligation of the Court in circumstances where a child’s parents are to have equal shared parental responsibility for the child, but the Court has decided not to make an order for equal time:
Substantial and significant time
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Decision: Issue B
Based on the evidence set out in paragraphs 30 to 248 above, I find that it is in [X]’s best interests to spend substantial and significant time with his father as defined by the Act, and I will make orders that allow for that time to increase when [X] is a little older and has settled at school.
That time will include week days and weekends and holiday and special day arrangements.
That is because [X] clearly loves his father and enjoys spending time with him and he should be given every opportunity to develop that relationship in a safe and harmonious fashion.
Of course, in order to achieve that relationship with his son, Mr McKellar will need to put [X]’s needs and welfare ahead of his own and Ms J’s needs and desires and it is to be hoped that he is able to do so.
Conclusion
These parties will be [X]’s parents for the rest of their lives. They will need to learn that [X]’s care and love are not prizes to be won in some inevitable battle between separated parents.
Parenting is hard, even harder when the parents are no longer a couple, and it involves self-sacrifice and maturity. If these parents do not understand this, and learn to put their child’s needs, happiness and welfare before their own, then they will not be the parents they wish to be, and the only loser will be [X].
I certify that the preceding two hundred and sixty-five (265) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 27 July 2018
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Procedural Fairness
0
2
2