MEDILL & GENTZ
[2019] FCCA 2447
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MEDILL & GENTZ | [2019] FCCA 2447 |
| Catchwords: FAMILY LAW – Parenting dispute about 6 year old child – mother retaining concerns about father’s alleged drug use despite numerous clear tests – mother anxious over, and opposing any increases in fathers time with child – family report recommending gradual increases – very poor communication between parents – order for shared parental responsibility wholly impracticable - orders made largely as recommended by family report. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR MEDILL |
| Respondent: | MS GENTZ |
| File Number: | DGC 708 of 2015 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 26 August 2019 |
| Date of Last Submission: | 26 August 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Elleray |
| Solicitors for the Applicant: | Webb Korfiatis Family Law |
| Counsel for the Respondent: | Mr Hoult |
| Solicitors for the Respondent: | Go To Court Lawyers |
ORDERS
The Mother have sole parental responsibility of the child [X] born … 2013 (“[X]”).
The mother keep the father informed of all long-term decisions respecting [X]’s health, education and any other major long-term issue.
That [X] live with the mother
That [X] spend unsupervised time and communicate with her father as follows:
(a)During school terms and school holidays until the of Term 4 2019
(i) Each Sunday from 10:00 am to 6:00 pm for 4 consecutive weekends
(ii) Then from 4:00 pm Saturday to 6:00 pm Sunday on alternate weekends
(iii) From 10:00 am Saturday to 6:00 pm Sunday upon the commencement of counselling
(iv) From Friday afternoon to 6:00 pm Sunday on alternate weekends by 1 December 2019
(b)From Term 1 2020
(i) The child spend time with the father each Wednesday night, in addition to alternate weekends, from the conclusion of school until 6.30 pm
(ii) On alternate weekends form Friday afternoon to the commencement of school on Monday by Term 2 2020
(c)Summer School Holidays
(i) That time occur in 3 and 4 day blocks (3 days in week one and 4 days in week two) over the long summer holidays in 2020
(ii) For one week during each school term holiday period in 2019 and
(iii) On a week about basis (excluding Christmas Day provisions) during the long summer holidays in 2020 and each year thereafter
(d)Special days
(i) That the child spends time with the father from 4:00 pm Christmas Day to 6:00 pm Boxing Day in 2019 and each alternate year thereafter, and
(ii) From 4:00 Christmas Eve to 4:00pm Christmas day in 2020 and each alternate year thereafter
(iii) For half of Easter Public Holidays from 2020
(iv) For Father’s Day each year from 10:00 am to 6:00 pm in 2019 if it fails outside the Father’s weekend
(v) From 6:00 pm Saturday to 6:00 pm Sunday in 2020 if it falls outside the Father’s weekend.
(a)That the parties attend Ms B (Clinical Psychologist) or such other counsellor as agreed between the parties to address the matters outlined in paragraph 86 of the Family Report, and the parties be at liberty to provide Ms B with copies of the two Family Reports prepared by Ms C.
(b)Each parent immediately obtain mental health care plans referrals to Ms B and the parties share the costs of out of pocket expenses for joint sessions but they be responsible for individual sessions with Ms B (if same occur).
That Mr Medill obtains information directly from the professionals involved with [X] regarding her medical and psychological needs, and the mother is to make any necessary authorisations to ensure that this can occur
The father undertake a hair follicle test as soon as practicable.
The parent who has the day-to-day care of the child shall notify the other parent of any serious illness or medical condition suffered by the child as soon as practicable and further provide to the other parent all the relevant particulars of the treatment received by the child together with the name and address of the treatment provider.
The Mother shall provide authorisation to any treating medical practitioner of the child to allow the Father to have direct access to the child’s health and medical records.
The Mother forthwith do all acts and things and sign all documents as may be necessary to instruct the principal of any school that the child may attend, to forward to both parents a copy of all reports, requests for photographs and any notification and other documents relevant to the child’s welfare and education and in that regard, both parents be permitted to attend any function, parent-teacher interview to which parents would normally be invited, subject to any policy of the school.
IT IS NOTED that publication of this judgment under the pseudonym Medill & Gentz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 708 of 2015
| MR MEDILL |
Applicant
And
| MS GENTZ |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a parenting dispute about the best interests of a young child, [X], born on … 2013. The applicant father wishes to move to expand substantially, albeit over time, the amount of time [X] spends with him as recommended by the family report of Ms C. The respondent mother opposes any increase in time and seeks that the father’s application be dismissed.
Although I have no doubt that the mother’s concerns are genuinely held and are readily understandable in view of the history of the matter, the fact is that Ms C’s recommendations are clearly those that are in the best interests of [X] and I will make orders accordingly.
Agreed or Uncontested Relevant Matters
The father was born on … 1987. He presently lives with his parents, although he is in a relationship with Ms D, who has two young children who are [E], aged five, and [F], aged three. He works full time as a tradesman.
The mother was born on … 1988. She was in a relationship with the father from 2012 until separation in 2014, and re-partnered with a Mr G in 2014. They married, according to the mother, in about … 2018 (the lack of a specific date is slightly strange) and she is pregnant with their first child. Mr G, works full time, starting very early in the morning and finishing by about 2 pm.
The parties have, unfortunately, been involved in two tranches of litigation. The first commenced in March 2015 when [X] was about two years old and continued through to final orders in 2017. These orders provided the father to spend six hours supervised by his own father, subsequently changed to a requirement of substantial attendance only. It is those orders that the father seeks to disturb and the mother to retain.
The relatively small amounts of time provided to the father derived from a number of concerns about the father’s psychiatric condition and his capacity to care for [X]. It should be noted that the regime of supervised time that was established flowed from recommendations made in a first family report by Ms C. There were also significant concerns as to the father’s alleged drug use.
There have been ongoing disputes between the parties about the father’s compliance with orders for drug screens, but the father has spent time with [X] in the main pursuant to the orders made in 2017.
The Parties’ Affidavits
I do not propose to traverse the parties’ affidavit material in any detail. The dispute in this matter is, in truth, within a narrow compass and it is inappropriate therefore to do so. I note that in his first affidavit filed 18 April 2019 the father, having set out the history of the matter from his perspective, including an assertion that [X] gets on well with Ms D’s children and his paternal cousins, appended two reports from a Dr H, psychiatrist, and Ms I, psychologist. It is sufficient to note that Dr H saw the father between April and June 2018 and regarded him as stable, and noted that he did not have to see him on an ongoing basis. Ms I had seen the father for six sessions between April and October 2018 and, once again, gave him what in effect was a clean bill of health.
The mother’s first affidavit filed 4 July 2019 likewise sets the history of the matter out from her own perspective. It should be noted that the terms of the affidavit are somewhat carping in their style. Her observation at paragraph 20, which is dismissive of Ms D, seems to me to be unduly critical. I note that there is a major issue between the parties on an ongoing basis about child support.
The mother deposed that she had not undertaken the Parenting Orders Program previously ordered because it interrupted her work routine and would have been financially burdensome as a result. She noted that Dr J had diagnosed [X] in late 2018 as having an overactive bladder and requiring a very strict diet. She complained of the father’s failure to comply with this diet, despite his being notified of it (exhibit WG3). She also annexed WG4, a report from Dr K. I note that any suggestion of autism was comprehensively dismissed. I further note at page 35 of 41 of the affidavit that perhaps, unsurprisingly, the mother’s completed questionnaire gave what might be described as more accentuated assessments as to whether or not [X] suffered from various emotional and behavioural problems. These were contrasted with the somewhat lower assessments of her teacher.
The mother also appended a report from a Ms L, subsequently put on affidavit, although Ms L was not called. Ms L noted that [X] was displaying verbal outbursts at home and that she was focused on supporting [X] with her difficulties. She was also seeking to assist her mother and partner in their responses to [X]’s outbursts.
The father’s trial affidavit filed 5 August 2019 details a dispute between the parents as to whether or not [X] could go and see the recent Lion King film, and I note that on 4 August 2019 the mother stopped the father’s time because he was 23 minutes late. The father’s affidavit seems to me to show an ongoing meanness in relation to his obligations in child support. Despite being assessed to pay $622 a month, he presently pays $25 a week.
The mother’s trial affidavit deposes to her own clinical anxiety. She deposes to [X] spending sleepovers with the maternal grandmother and an aunt. At paragraph 58 she deposed:
I have concerns that while conducting an interview with myself first, and before having spoken with the Father, Ms C was already expressing her opinion to myself, that this matter would return to court, and that the Father would get what he wants, and that she had had lengthy discussions with the Father’s lawyer with respect to ‘What it was they wanted from this report’. As such ,I have concerns that Ms C’s recommendations were not based on an assessment of the facts, and reports, but on a preconceived notion.
The Family Report of Ms C dated 14 June 2019
Ms C set out the current arrangements, she set out the relevant family back ground and history in terms that are, in my view, entirely consistent with the materials filed. She noted at paragraph 13 the reports on the parties by Dr M, including Dr M’s recommendation that the father undertake a psychiatric evaluation, randomised drug testing and monitoring by both a psychiatrist and a psychologist over a period of 18 months to two years (the report being dated 7 November 2016).
Ms C noted the ongoing conflict between the parties about drug tests and the positions of the parties. Ms C noted at paragraph 18:
Ms Gentz wishes to see that any increases of time between Mr Medill and [X] occurs slowly. Whilst his drug use is no longer a problem, she spoke about [X] having issues arising from an overactive bladder, and she also has anxiety issues. She wishes to wait until [X]’s bladder use and anxiety are better managed before overnight time begins.
At paragraph 20 Ms C noted:
Mr Medill has done drug tests over an extended period. There are no current concerns over his drug use, which removes those safety concerns.
At paragraph 21, Ms C noted that both Dr N and Dr H had completed psychiatric evaluations of the father, neither of whom having any concerns. The same could be said of Ms I.
Ms C noted that the father had completed a Parenting Orders Program (paragraph 27), but that the mother was only booked to do the program in August 2019 (paragraph 28).
Ms C recorded her interviews with both the mother and the father, during which unsurprisingly both parents presented their position very much as they have done in their affidavit material. I note that paragraph 48, having interviewed Ms D, the report observed:
She would like to maintain a cordial relationship with Ms Gentz. She sent Ms Gentz a message that she is wishes to meet her but did not receive a response.
Ms C detailed her observations of [X] at paragraphs 55 and following. At paragraph 58, Ms C noted that [X] appears to enjoy her primary school and that “The best thing about school is PMP”.
[X] expressed a view that her parents and her stepfather, Mr G, were loving, kind and happy (paragraph 59).
Paragraph 61, the report noted:
[X] said she likes seeing her Dad and wishes she could see him more and said, “I wish I can have a sleepovers at Dad’s”. She informed the writer that her Dad does not cook and he buys meals for her but her Granddad (paternal grandfather) does the cooking. She described an affectionate relationship with her Granddad and likes his hugs. Oddly, she did not mention her parental grandmother when speaking of her paternal family. However, she described a positive relationship with the father’s partner, Ms D.
I note that the child was well aware that her parents did not get along (paragraph 62.)
Having traversed the report of Dr K, Ms C detailed her observations of [X]’s interactions with her parents. It is entirely apparent that the mother and child have a close and loving relationship. In paragraph 69, Ms C recorded “Ms Gentz impressed as a resourceful and doting mother who attended the appointment with food and drinks, toys, and change of clothes for [X]”.
At paragraph 70, the report noted:
On her way back to the writer’s office, [X] caught sight of her father and Ms D. She ran excitedly towards her father who carried her and hugged her.
In paragraph 73, Ms C noted that Ms D engaged comfortably and easily with [X], who was – obviously familiar with her. Paragraph 74:
When the writer informed [X] it was time to conclude the session and return to her mother, she wished to have more time.
In paragraph 77, having noted the disputes over time, the report observed:
Since that report, Mr Medill has addressed his problems with drug use and maintains that he has been drug free for well over two years. His professional reports from Dr N, Dr H and Ms I are positive and do not raise concern about his mental health, parental risk for the child or ability to parent. In addition, Mr Medill has attended programs for self-improvement and to enhance his parenting.
At paragraphs 80-81, the report noted:
[X] impressed as an articulate 6 year old who appears to be meeting her developmental milestones. She is articulate and capable of expressing her needs. She likes spending time with her father and wishes to have sleepovers with him. [X] related easily and comfortably with her father and his partner during the observation session.
Ms Gentz impressed as a capable and devoted mother. She deserves every credit for how well [X] has turned out. She appeared highly anxious about the prospect of [X]’s time with her father being progressed to include overnight time. She reported that [X] has had meltdowns or extreme reactions following visits with her father, which she believes is caused by high sugar or citrus intake. She worries that [X] may have an exacerbation of problems if her Paternal Grandfather is not in the picture. This level of concern is understandable given the history of this case and Mr Medill has to demonstrate that he can meet [X]’s needs if unsupervised time occurs.
At paragraphs 83-84, Ms C noted:
It is important to note that Ms Gentz reported that [X] had a meltdown after she left the family report appointment, which she explained may have been due to [X] having spent an extended period in an unfamiliar environment with unfamiliar routines. The writer did not witness any anxiety or adverse reactions from [X] throughout the appointment and she wished to stay for longer when the father-child observations were concluded. In addition, she only consumed food and drinks that her mother provided. It is unusual that [X] only has meltdowns is in her mother’s care. Ms Gentz acknowledged that [X] has not had any meltdowns at school or when she is with her father. The writer wonders whether maybe picking up her mother’s anxiety, which triggers a meltdown. This may need to be explored further with [X]’s Psychologist.
The writer is concerned that unless Mr Medill is given the opportunity to gradually become more fully involved with [X]’s care and parenting, it is unlikely that spend time arrangements can progress beyond day visits. [X] currently has a sufficiently close bond with her father which provides the foundation for her to spend more time with him.
Ms C went on to recommend that [X] live with the mother and spend gradually increasing unsupervised time with her father. She further recommended that the parties attend Ms B or some other counsellor to address their communication for the purpose of co-parenting and to discuss [X]’s needs and routines before overnight time commences. Ms C also recommended that they see Ms B to discuss how the mother manages [X]’s meltdowns that are at her own home so that a more consistent management could take place in both houses.
Ms C went on to recommend equal-shared parental responsibility for [X] once counselling is underway, having earlier opined at paragraph 88 that this – might need to be deferred until the parties had engaged in counselling and were able to communicate effectively about parenting issues.
The evidence given and submissions made at Court – the father.
What follows is taken from my notes
Counsel elected not to make an opening and forthwith called his client. The father adopted his trial affidavit as true and correct.
In further evidence-in-chief, he appeared to complain that not all the envisaged phone calls had taken place. He would like a specified time for phone calls.
He was questioned about The Lion King incident. He wanted to take [X] to the film but [X] was crying and saying her mother would not like it. When he spoke to the mother, the mother said it would be too traumatic for the child. The father lives with his parents and Ms D lives five minutes away. She has children, two boys, who got along well, great, with [X]. His own father was a public servant. His sister sees [X] when he himself sees [X]. He confirmed that he sought the orders recommended by Ms C.
Under cross-examination, the father confirmed that this was the second report by Ms C. Her first report recommended assessment of the father’s mental health and drug testing. She also recommended supervised time because of these issues. He had seen Dr H in 2018 but not this year. He saw Dr H for eight sessions over a year. He last saw Ms I last year. He did not know why he had been ordered to see a psychiatrist but would comply with Court orders were he required to do so. He was content to undertake a hair follicle test if the Court ordered it.
The father confirmed that the mother had cancelled his time so that he had not taken [X] to The Lion King because the mother opposed it and said she would not cope. He also confirmed that the mother had cancelled his time when he was 23 minutes late. When it was put to him that the mother says that [X] is anxious and the report of Ms L supports this, the father said [X] was not anxious in his care. He does not know what [X] does at the mother’s house. He was aware that [X] has an overactive bladder and sees a urologist, whom he had met. She has to keep her sugars low and keep off citrus fruits and eat healthy.
When he was taxed with the mother’s assertion that he had provided [X] with inappropriate food at a McDonald’s, the father said that she only had bits and pieces. Small amounts were okay.
Father confirmed that Ms D lives in Suburb O. He prefers to stay at her house. He has known her a couple of years. She is a professional. He thinks they will move in together in the future. He is happy living with his parents at the moment.
The father conceded that he is paying $25 per week in child support. He earns $70,000. The agency was undertaking a report. He had been assessed to pay $680 a month.
In re-examination, the father said that [X] had had a couple of spoons of ice cream and an Easter bunny. She has a different diet in his care and he always watches what she eats. The mother had never invited him to see Ms L. He had tried to see Ms L, but she refused to see him. There will be a review of the child support and he will pay once he is assessed.
The Opening and Evidence of the Mother
Counsel confirmed that his client sought that the present orders remain. She also seeks two more hair follicle tests. One shortly and another in six months' time.
The mother was called and adopted her trial affidavit as true and correct. She is a technician and an instructor. She seeks two hair follicle tests. She thought Ms C was unfair. She said Ms C spent a lot of time putting her opinions to her and not listening to her. There was not a lot of discussion. She felt Ms C had made up her mind. Ms C said the father would get what he wants.
Under cross-examination by counsel for the father, the mother confirmed that she was due to give birth in mid-December. This is her first child with Mr G. She has told [X], who was very excited about it. She told her when she was six weeks pregnant, some 18 weeks previously.
When it was put to her that the father had undertaken seven hair follicle tests, the mother said that in these proceedings he had done four or five. She had thought Ms C fair in 2017. Ms C did not spend much time on [X]'s life day-to-day and what her needs were. She confirmed that she had given Ms C a number of medical reports. The mother said that her way was the best way forward for [X]'s health. She would like [X]'s anxiety to be stable. When it was put to her that she sought that there be no substantial time till [X] is 10 or 11, the mother said there was no particular time.
She was, however, opposed to [X] spending all weekend with her father. [X] has developed her condition over time. She had not suggested that the father come to see the psychologist (Ms L). She was present herself at the beginning and was there for the first five sessions. Her partner was there for one session in June. She sees [X]'s anxiety more than others. When it was put to her that Ms C thought the child might be picking up on her own anxiety, the mother said that she accepted that that was what Ms C said.
There had been 10 sessions so far with Ms L and if she needs more, she will get them. The psychologist has advised that [X] would need more sessions
The mother confirmed that her husband is a subcontractor. She has herself works two jobs eight hours as a technician and two hours as an instructor. She had sat in on each session with [X]. The father rarely comes up in conversations with Ms L. She had told Ms L that [X] was uncomfortable spending time with her father. [X] knows that the mother thinks that she can cope with her father. [X] does not feel 100 per cent safe in her father's care. She had raised [X]'s desire to come home from Ms D's home with Ms L. She had told Ms L that [X] does not want to spend time with Ms D.
From the answers to questions put, it is apparent that the mother does not want to have a warm relationship with Ms D. She struck me as being dismissive of that relationship. The mother said [X] does enjoy some of her time with Ms D.
The mother remembered the order in November 2017 that she enrol in a Parenting Orders Program. She has just completed it and she has learned from it. She had waited before enrolling until she could find a session that did not impact on her work.
The mother said that the father was very important in the child's life. Her husband is not referred to as Dad. [X] calls him [Mr G]. The mother did not seek to improve her relationship with Ms D. She needed a better relationship with the father and better communications. This would need time and practice. [X] cannot cope with change. She had thought that The Lion King was too much. Her sister had seen it. She did not trust the father.
[X] has a watch and is aware of time.
The mother confirmed that her own mother is Ms K Gentz. She lives in Town P and [X] calls her Grandma. The mother did not agree with overnight time at this stage, because she is too anxious. She went on to saying tellingly, in my view, that: “[X] knows when I'm on edge.” She is under continuing care from her GP and psychologist.
On the occasion when the father was late, the mother had told [X] that her father would be late. She was a watch for toilet breaks.
The mother said that [X] has extreme meltdowns in her home, but denied that this was because of her own anxiety. The child is very ill and has anxiety. She had a meltdown after seeing Ms C. She does not cope with change very well, but is not autistic. When it was put to the mother that the January report suggested that [X] wanted more time with her father the mother responded that [X] was good at masking her emotions. When it was put that Ms D has sought to maintain a relationship with her, the mother said that she ignored Ms D, who she had intimidated her by videoing her at her work. She conceded this was not in her affidavit.
She would prefer to build a relationship with the father, rather than his girlfriend, in case that relationship breaks down. [X] has had sleepovers with her aunt and grandmother, but no one else. [X]
The mother conceded that the father knows how to get on [X]'s level and play with her. She has not spoken with the father for a long time. She has never denied that [X] loves the father. [X] wanted to see Ms D. She knows her in short bursts. The mother went on to say that [X] is not comfortable with her father. She said at a subconscious level [X] is not 100 per cent secure.
The Evidence of Ms C
Ms C's evidence was taken by phone.
Counsel for the mother very properly put to Ms C in plain terms the various criticisms that the mother had made of her in her affidavit and oral evidence. Ms C denied expressing a conclusion at the start of the interview and said she would not start an interview that way. She had read the material the mother sent. She had not spoken to the solicitor for the father, although she had on one occasion spoken to Ms Elleray (the explanation was entirely believable and innocent). She did not ask the father's solicitor what he wanted out of the report. Put shortly, Ms C denied all the matters put to her.
Ms C noted the child had not had a meltdown in the father's care and there was nothing in the contact centre report, nor the school, to that effect. The mother says that the child has meltdowns after spending time with the father. Ms C was aware that the child sees Ms L, but she had not spoken to her, although she had read her report. Ms L is assisting the mother and her partner to cope with the child. When taken to paragraph 58 of the mother's trial affidavit (expressing concerns of the mother about Ms C's fairness), Ms C denied saying the matters attributed to her.
She had spoken to the mother about Dr N and the psychologist who had seen the father, all of whom were positive about him. There had been changes since Dr M's report.
Under cross-examination by counsel for the mother, it was put that the mother sitting in on seven of the 10 sessions with Ms L might be unusual for a young child. Ms C responded that the mother is a good mother, but was open about being anxious. She is seeing a counsellor. There may be flow-on effects, but she is not there. When cross-examined about overnight time on the forthcoming Father's Day weekend, Ms C said matters should proceed more cautiously.
Final Submissions of the Mother
Counsel submitted, correctly, in my view, that this was a case within limited compass. There is the anxiety of the child and the mother. The father's psychiatric condition was not an issue in the case. Counsel noted the concession the father would undertake a hair follicle test, if ordered. The child is anxious. The mother concedes that she is anxious and this is a matter to consider. The mother needs time, but Ms C said time can start in a few months. Ms C has undertaken two reports, but could not say what happens in the mother's house.
The father appeared to concede that if the mother was happy, the child would be happy. The mother wants slower progress. The parties do not get on and she opposed shared parental responsibility. Counsel pointed out that they could not even agree about taking the child to The Lion King. The mother sought final orders. The current orders cease on 18 August, but should, nonetheless, continue until judgment. The mother was a good mother who was the primary carer of the child.
Final Submissions of the Father
Counsel submitted that her client was not seeking interim orders for overnight time. He sought time weekly and at Christmas. Because he had not had a Christmas wake-up for years, he wanted the regime in the proposed orders reversed. The father cannot afford further therapy and cannot pay the counsellor. He seeks equal shared parental responsibility and accepts Ms C's report. Ms C said he had improved. The father opposed hair follicle testing. The child wants overnight and more time and has a good relationship with Ms D also.
The father was not seeking excessive time and the mother would always be anxious and this is impacting the child. Family therapy is not necessary. The child has sleepovers with others. She sought the orders recommended by Ms C, but omitting the family therapy.
Some Brief Observations about the Witnesses
The father struck me as being perhaps understandably defensive under cross-examination. He impressed me as honest and reasonably direct in his responses but seemed to me to lack insight into the need to control [X]’s diet appropriately. His answers about the meal at McDonald’s, in my view, minimised what occurred. While a child may well want an Easter bunny, this is a child from whom such treats may need to be wholly restricted.
The mother likewise impressed me as essentially honest and direct in her answers. She downplayed the father’s relationship with Ms D and it is entirely regrettable that she has not reached out to take the proffered hand of friendship from her. The mother’s anxiety about the prospects of the father spending more time with the child were palpable.
Ms C answers to the criticisms put to her by counsel for the mother were wholly believable. She had previously produced a report favourable to the mother, and the serious professional misconduct alleged against her is simply not made out at all.
Statutory pathway/parental responsibility
Having made these findings, I turn to the statutory pathway. The statutory pathway as set out in Goode & Goode [2006] FamCA 1346 (“Goode & Goode”) at [65] is as follows:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(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 and 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.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
As the Full Court of the Family Court made clear in Goode & Goode the court has first to consider the question of parental responsibility. The presumption as to equal shared parental responsibility must be applied unless there is family violence or the court is satisfied that there is evidence that it is not in the child’s best interests. I agree with Ms C, however, that it is premature to contemplate an order for shared parental responsibility at this time. The fact is that the parents’ incapacity to communicate and their mutual demonization (I have passed over the repetitive criticisms each makes of the other in their materials) means that any order for equal shared parental responsibility at the present time is likely to be problematic. It will give rise to further arguments and disputation which are not in [X]’s best interests. I note that the father effectively refuses to engage in the counselling suggested by Ms C, and this is extremely regrettable. His attitude towards the matter struck me as being parsimonious. The mother was not pressed on the question of counselling with Ms B. She opposes the father having any more time anyway, so perhaps it is unsurprising that she was not pressed as to this. She would doubtless oppose also.
These parents need to realise, however, that when they are having arguments about whether the child should go and attend a film which, as I understand it, is designed specifically for children, they are unlikely to be able to agree about anything. It should be noted that I am professing to make any finding as to whether or not The Lion King was or was not an age-appropriate film for this particular child. What is noteworthy is the disputation. The mother has had, in effect, sole parental responsibility for [X] since her birth and in circumstances where the relationship between the parents is so difficult, in my view, this will have to continue. I do not share Ms C’s view that counselling will, in the foreseeable future sufficiently diminish the parties’ problems to a point where shared parental responsibility will be practicable. Nonetheless, the mother must keep the father fully informed of any health issues that the child has and must permit him receive all information from any treating specialist.
The child’s best interests: the primary considerations
Everyone agrees that it is in [X]’s best interests to have a meaningful relationship with each of her parents. Where they differ, of course, is as to how this is to occur. The mother seeks, in effect, that there be no substantial time including overnight time at least for some years to come and, of course, the father seeks it now. There is no meaningful suggestion that there is any risk of violence by the father towards the child. The worst that can be said of him, in my opinion, is that he does perhaps not fully appreciate of the severity of [X]’s diet-related risks, and this is something he must pay much closer attention to in the future if further litigation is to be avoided. What should obviously happen is that the parents should communicate about the nature of [X]’s difficulties in a non-accusatory fashion. Whether they will have the maturity and insight to do this remains, however, regrettably, uncertain.
The additional considerations: section 60CC(3)(a)
The child has expressed clear views. [X] would like to spend more time with her father, including overnight time, which she has already undertaken with her maternal grandmother and aunt without apparently any ill effects. The mother’s assertion that subconsciously [X] is not 100 per cent safe with her father is a reflection solely of the mother’s own anxieties. Her observed reaction to seeing both her father and Ms D in the presence of Ms C speaks volumes. She is, of course, young and her views must be approached with that caution in mind, but in a sense her very youth makes her spontaneous uncontained reaction all the more telling.
Section 60CC(3)(e)
[X] has a fully developed and very secure relationship with her mother who has been her primary carer all her life. As Ms C says, she is a good mum and deserves every credit for it. There is, however, no doubt that [X]’s relationship with her mother is marked by very severe emotional reactions from time to time. No one is in a position to say quite why these occur, but I note that at least the mother is seeking professional treatment through Ms L to address this particular issue.
The child also has a loving and warm relationship with her father and gets on at least sufficiently well with Ms D. She also gets along very well with her stepfather. Her relationships with extended family members seem to be all excellent and unremarkable.
Section 60CC(3)(c)
Obviously the mother has as the primary carer taken every opportunity to participate in making decisions about the child and, indeed, has been the sole decision-maker in this regard. The father has over a protracted period of time sought to play a greater part in his child’s life. He has prosecuted his case to judgment and deserves credit for his endeavours to spend time with the child.
Section 60CC(3)(ca)
Obviously the mother has fulfilled her obligations to maintain the child unexceptionally. There was in the father’s affidavit and in his oral evidence a marked tendency to parsimony in his dealings with his child. While I note that he has complained that he was, in effect, blackmailed into a child support agreement, his complaints about the cost of counselling and the ongoing dispute as to child support all left me with a clear impression that he does not wish to contribute one cent more than he has to towards his child’s benefit. While he is living with his parents as he presently is and presumably paying no rent (as none has been indicated) with a salary of $70,000 per year one would have thought he would have been keen to do more.
Section 60CC(3)(d)
In one sense this is the central nub of the case. What will be the effects on the child if time is expanded. In my view the state of the evidence is clear. The child has voluntarily expressed that she wants overnight time with her father and more time. Indeed she wanted more time during the observation session. The position could scarcely be clearer. It is of course possible that [X] will have a meltdown when she gets back to her mother’s. This of course is extremely regrettable and would undoubtedly distress both her and her mother. It is impossible to avoid sharing Ms C’s surmise that the child is picking up on the mother’s anxiety. There is no clinical evidence to support such surmise, but the fact is that [X] has not had any meltdowns anywhere else, either with her grandmother, aunt, school or father. It is to be hoped that the ongoing counselling with Ms L will enable the mother and her partner to get to grips with whatever it is that may be causing [X] to respond in this way. Clearly any extension of the father’s time will make the mother extremely anxious but it is to be hoped that as things and hopefully calm down that this will reduce.
Section 60CC(3)(e)
There is no practical difficulty or expense of the child spending greater time with the father save of course the possibility of meltdowns on [X]’s part. This however is something that simply has to be managed as otherwise it becomes a self-fulfilling insuperable difficulty.
Section 60CC(3)(f)
The mother is a good mother. She has the support of her partner who is apparently an excellent stepfather. The reservation I would express is the obvious one of the mother’s anxiety. The father is in my view clearly at least sufficiently capable of providing for the child’s needs, although he would do well on reading this judgment to remember that the control of [X]’s diet is a matter that requires perhaps greater attention than he has thus far given it, rather than retreating in a huff in criticisms of the mother’s anxiety about an aspect of [X]’s health it is of the utmost significance. He should seek to engage with those treating [X] to understand more completely than I suspect he does at the moment the nature of this difficulty.
Section 60CC(3)(g)
The father has had some difficulty in his life, including the accident in 2015 which I have not otherwise felt it necessary to repeat. When examined by Dr M, his mental health was by no means satisfactory. Nonetheless he has conquered his troubles and is now in a psychiatrically sound space. His lifestyle and background is otherwise in my view unremarkable. He appears to have a close relationship with his parent and is in a stable relationship with Ms D. This is not a fly by night relationship but has been going on for several years. The mother likewise has an unremarkable lifestyle. She has re-partnered and is no doubt happily expecting the birth of her new child, as indeed is [X]. There is simply nothing to comment on in this regard.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
The mother’s attitude is of course in my opinion overly protective. She is herself given to anxiety, which I would emphasise is a matter for sympathy, not criticism, and I think this makes her overly sensitive in respect of the child’s time with the father. It is understandable given that she has the primary carer throughout that she will perhaps struggle to cope with the father playing a greater role than he has in the past. The father’s attitude towards the child once again has about it a slightly possessory quality. He wants more time at least in part because it will benefit him. Nonetheless it should be emphasised that these are both loving parents, and their two positions reflect an entirely understandable situation given the history of the proceeding and the difficulties that they have had with one another in the past.
Section 60CC(3)(j)
I do not understand either party to make any allegations of family violence that would touch on the disposition of the case.
Section 60CC(3)(k)
There are no Intervention Orders.
Section 60CC(3)(l)
In my view it is entirely desirable to make final orders now. These parties have had the strain and expense of litigation for all too long and it is plainly in [X]’s best interests that these tensions be removed from the persons who are central figures in her life. The recommendations made by Ms C are in my view an appropriate end point and I will be making orders in the terms she suggests.
Section 60CC(3)(m)
There are no other relevant matters.
Conclusion
It will have been apparent to any reader of this judgment that I have formed a clear view that Ms C’s recommendations should be adopted, save the recommendation that the move to overnight time should be held back until after the counselling with Ms B. This bridge has to be crossed and if it is contingent on successful counselling then I think the counselling will become a future battlefield on which the issues I am determining will be recontested. Nonetheless I am going to Order counselling with Ms B. Unless these parents can get to grips with their mutual distrust and lack of cooperation then the future for their interaction, and the resulting difficulties for [X], seem all too obvious. Counsel for the father said he cannot afford further counselling. The fact is that he had instructing solicitor and counsel throughout the entirety of this trial. If he can afford that and he really loves his daughter he will get the money to engage in the counselling process which in my view is plainly entirely in [X]’s best interest.
I do not propose to make the order as to Christmas proposed by the father. There ought be alternate Christmases in any event and while there is force in the submission that he should have a wakeup Christmas after not having had one for some years, the fact is that overnight time will only have commenced relatively recently. A major change for so important a celebration can wait for one year.
Finally, although the evidence convinces me that the father is drug free, I do intent to order one further hair follicle test. This will have the benefit of puffing the mothers concerns to rest and that is entirely in the child’s best interest
I have prepared draft orders to reflect these conclusions but will hear from the parties in case there is anything I have overlooked.
I certify that the preceding ninety one (92) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 20 September 2019
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