MESSANA & MESSANA (No.2)
[2019] FCCA 2939
•18 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MESSANA & MESSANA (No.2) | [2019] FCCA 2939 |
| Catchwords: FAMILY LAW – Parenting – intractable parental conflict – the application of s.102NA to a part-heard matter – practical consequences of representation under s.102NA when a part-heard matter is continued – provision of a transcript – limits on cross-examination – further interim orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 102NA |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS MESSANA |
| Respondent: | MR MESSANA |
| File Number: | WOC 152 of 2017 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 1 – 2 November 2018 26 - 27 September 2019 |
| Date of Last Submission: | 27 September 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 18 October 2019 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Wollongong Family Law |
ORDERS
All previous parenting Orders are hereby discharged.
Subject to Orders 3 and 4 below, the Mother has sole parental responsibility for the Child X (born … 2009) (‘X’) in relation to the care, welfare and development of a long-term nature.
The Mother and Father have equal shared parental responsibility for X in relation to any change to the X’s living arrangements that may make it significantly more difficult for X to spend time with the other parent and, for the purpose of this Order, unless as otherwise agreed to in writing between the parents, they will not live in suburbs further than 120kms away from each other.
For the purpose of Order 2 (subject to the renewal of the Child’s passport in accordance with Order 27 below and except otherwise in the event of an emergency) before making any decisions about major long term issues in relation to X, the Mother will consult with the Father as follows:-
(a)Advise the Father in writing not less than forty-two (42) days in advance of any decision on major long term issues in relation to X proposed to be made by the Mother;
(b)Provide the Father with all relevant information relating to the major long term issue which is in the possession of the Mother;
(c)Provide any necessary authorities to enable the Father to obtain any additional information from any relevant health or educational institution;
(d)Consider any response from the Father before making the decision; and
(e)Inform the Father of any major long term decision made as soon as reasonably practicable and no later than seven (7) days after the making of the decision.
The Mother and Father each have sole responsibility for making decisions about the day to day care, welfare and development of X during those periods that X is living with them or spending time with them.
X lives with the Mother.
Subject to Order 8 below, X will spend time with the Father as follows:-
(a)On each alternate weekend from 7pm Friday until 6pm Sunday;
(b)In the event a public holiday falls on the Friday, the time will be extended to commence from 7pm Thursday;
(c)In the event a public holiday falls on a Monday attached to X’s weekend time with the Father, the time will be extended to conclude at 6pm Monday;
(d)It is noted that the arrangements in Order 7(a) above will continue during school holiday periods (subject to Orders 7(e) below);
(e)X’s time with the Father will be suspended:-
(i)in the 2019/20 Christmas school holidays and each alternate year thereafter, from the last day of Term 4 (in 2019 and each alternate year thereafter) until 7pm on the day twenty-eight (28) days later;
(ii)in the 2020/21 Christmas school holidays and each alternate year thereafter, from 14 January until the end of the school holiday period; and
(iii)in the event a 4 night period as set out in Orders 8(a)(i) and 8(a)(ii) below runs into an alternate weekend visit that is due to occur in accordance with Order 7(a) above (so that the combined visit would run for 5 or more nights), the alternate weekend visit is suspended (so that X spends no more than 4 nights with the Father);
(f)At such other times as are agreed to between the parents in writing.
Notwithstanding any other Order, X will spend time with the parents on such special occasions as the parents agree and failing agreement as follows:-
(a)X will spend time with the Father:-
(i)From 7pm on 22 January 2020 until 6pm on 26 January 2020 and each alternate year thereafter;
(ii)From 7pm on 24 December 2020 until 6pm on 28 December 2020 and each alternate year thereafter;
(iii)Commencing in 2020 and continuing thereafter, from after school (or 3pm on a non-school day) on Holy Thursday until 4pm on Easter Saturday in even years;
(iv)Commencing in 2021 and continuing thereafter, from 4pm on Easter Saturday until 4pm on Easter Monday in odd years;
(v)Father’s Day - in the event X is not otherwise spending time with the Father on the weekend that includes Father’s Day, X will spend time with the Father that weekend (in accordance with the times as set out in Order 7(a) above) but, by way of substitution, X will remain with the Mother on the following weekend;
(vi)On X’s birthday as agreed or, failing agreement, the arrangements in Order 7 above will apply (and telephone communication as set out in Order 8(c) below will occur);
(vii)On the Father’s birthday as agreed or, failing agreement, the arrangements in Order 7 above will apply (and telephone communication as set out in Order 8(c) below will occur);
(viii)On the anniversaries of the paternal grandparents as agreed or, failing agreement, the arrangements in Order 7 above will apply (and telephone communication as set out in Order 8(c) below will occur);
(b)X will spend time with his Mother (and the Father’s time with the Child in Order 7 above will be suspended):-
(i)From after school (or 3pm on a non-school day) on Holy Thursday until 4pm on Easter Saturday in odd years;
(ii)From 4pm on Easter Saturday until 4pm on Easter Monday in even years;
(iii)Mother’s Day - in the event X is not otherwise spending time with the Mother on the weekend that includes Mother’s Day, X will remain with the Mother that weekend but, by way of substitution, X will spend time with the Father on the following weekend (in accordance with the times as set out in Order 7(a) above);
(iv)On X’s birthday as agreed or, failing agreement, the arrangements in Order 7 above will apply (and telephone communication as set out in Order 8(c) below will occur);
(v)On the Father’s birthday as agreed or, failing agreement, the arrangements in Order 7 above will apply (and telephone communication as set out in Order 8(c) below will occur);
(vi)On the anniversaries of the maternal grandmother as agreed or, failing agreement, the arrangements in Order 7 above will apply (and telephone communication as set out in Order 8(c) below will occur);
(c)In the event X is unable to spend face-to-face time with both parents on a special occasion, the parent with whom X is living or spending time with on that date will take all reasonable steps to ensure that X contacts the other parent by telephone between 7pm and 7:30pm (and the arrangements for telephone communication as set out Order 10 below will apply).
For the purposes of Orders 7 and 8 above, unless as is otherwise agreed to in writing between the parents, changeover will occur as follows:-
(a)Changeover will occur at the City A Service Station;
(b)For the purpose of all changeovers:-
(i)The Mother will remain in or stand at the driver’s door of her car and watch X walk to or from the Father’s car;
(ii)The Father will remain in or stand at the driver’s door of his car and watch X walk to or from the Mother’s car;
(iii)The Father and the Mother are restrained by injunction from approaching each other during changeover;
(iv)The Father and the Mother will refrain from communicating directly with the other parent, except for exchanging brief greetings and/or farewells;
(v)In the event any other person travels with the Mother or the Father for changeover, the Mother and the Father are to ensure that such person(s) remain in the car and does not actively participate in the changeover;
(vi)Each parent will ensure that changeover is facilitated quickly and takes no longer than 5 minutes;
(vii)In the event either parent is running more than 10 minutes late for changeover due to traffic or other unforeseen difficulties, they are to send a text/SMS message to the other parent advising them that they are running late and indicating an estimated time of arrival.
X will communicate with the parents as follows:-
(a)By telephone on each Wednesday between 7pm and 7:30pm and it is noted that the call will be initiated by no later than 7:15pm;
(b)Each parent will ensure that their mobile telephone is switched on and adequately charged at all reasonable times;
(c)The parent that X is living or spending time with will take all reasonable steps to ensure that X initiates the call to the other parent;
(d)The parents will ensure that X is given privacy during this telephone communication;
(e)The Mother and Father are to refrain from placing the telephone on speaker during this telephone communication;
(f)Each parent will facilitate any other reasonable request made by X to contact the other parent via telephone, video call, email, in writing and any other agreed form of communication.
Each parent will ensure that the other parent is kept informed of:-
(a)any serious medical problems or illnesses suffered by X, with the other parent to be notified as soon as possible;
(b)any medical emergencies involving X, with the other parent to be notified immediately;
(c)any medication that has been prescribed for X including medication that needs to be taken during the time X is with the other parent, with the other parent to be notified as soon as possible and no later than four (4) hours prior to changeover (and with each parent to ensure that the medication travels with X);
(d)any change to the parents’ contact mobile telephone numbers and email addresses, with any such changes to be advised within twenty-four (24) hours;
(e)the suburb that they are living in, with any changes to be advised within twenty-four (24) hours;
(f)any other matter relevant to X’s welfare, with the other parent to be notified as soon as is reasonably practicable.
The Mother will ensure that the Father is kept informed of any specialist appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding X, with the Father to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the Father to be notified immediately).
The Father is restrained by injunction from taking X to any specialist medical doctor (except in the case of an emergency), psychiatrist, psychologist, counsellor or therapist.
Each parent will provide to the other parent full particulars of any medical practitioner, health service provider or institution attended by X; and that this Order operates as the authority of each parent to the medical practitioner, health service provided or institution attended by X to provide to either parent such information as he or she may seek in relation to X.
Each parent is permitted to liaise directly with X’s school(s), sporting bodies and/or extra-curricular organisations to obtain any necessary information about X’s progress; and that this Order operates as the authority of each parent to X’s school(s), sporting bodies and/or extra-curricular organisations to provide to either parent such information as he or she may seek in relation to X.
This Order operates as the authority of each parent to X’s school(s) to ensure that the school forwards to both parents copies of X’s school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.
Subject to Order 20 below, each parent and member of their respective families is entitled to attend all events (including those that involve X) including, but not limited to:-
(a)sporting fixtures;
(b)extracurricular activities that allow for parental attendance or participation;
(c)school functions and events that allow for parental attendance or participation;
(d)religious events; and
(e)community events.
Without admissions, each parent is restrained by injunction from:-
(a)Speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive, threatening or unpleasant fashion in X’s presence or within his hearing;
(b)Discussing the parental relationship or separation in X’s presence or within his hearing;
(c)Questioning X about his time with the other parent (beyond simple pleasantries when X returns to their respective care);
(d)Using physical discipline on X or allowing any other person to do so;
(e)Verbally abusing X; and/or
(f)Using X to pass messages to the other parent;
(g)Audio and/or video recording X for the purposes of communicating a parenting or other issue to the other parent;
(h)Posting photos or videos of X on social media and/or any other online platform without the other parent’s written consent;
(i)Enrolling X into any extra-curricular activity that requires X’s participation during his time with the other parent, without the prior consent of the other parent;
(j)Attending the other parent’s place of work;
(k)Attending the other’s parent’s home unless agreed in advance in writing;
(l)Discussing the issues of X’s surname being changed and/or his parentage; and
(m)undertaking testing to determine X’s parentage.
For the purposes of parental communication, unless as otherwise agreed to between the parents in writing:-
(a)Telephone communication will be used for emergencies only;
(b)For all other parenting issues, the parents will communicate by email or the co-parenting application ‘Divvito’ and the parent who receives an email or message will respond (even if only to confirm receipt) within a reasonable period of time;
(c)That each parent is restrained from using abusive and/or aggressive language in any form of communication between them;
(d)The parents will be courteous and civil towards each other at all times but especially in X’s presence or within his hearing;
(e)The parents will do all things reasonably necessary to ensure that no other person (including but not limited to members of their families) uses abusive and/or aggressive language towards the other parent, especially in X’s presence or within his hearing.
In the event the parents attend the same school, extra-curricular, religious or community event, or in the event that the parents see each other in public, they will each ensure to keep a reasonable physical distance from the other parent and refrain from communicating directly with the other parent, except for exchanging brief greetings and/or farewells.
Each parent will use their best endeavours to facilitate X’s attendance at special events (for example, birthday parties, community and religious events) and to provide as much advance notice to each other of the events.
Each parent will ensure that X has his own bedroom with appropriate bedding in their home.
Unless as otherwise agreed in writing, all items purchased by the Mother that X takes from the Mother’s home to the Father’s home must be returned with X at the conclusion of time; and that all items purchased by the Father that X takes with him from the Father’s home to the Mother’s home must be returned with X on the next occasion he spends time with the Father.
In the event either parent intends to travel with X for a holiday out of the State of New South Wales (but within the Commonwealth of Australia), they are to advise the other parent no later than seven (7) days prior to the intended departure date, with such advice to include departure and return dates, general holiday location information and emergency contact details.
The Mother and Father are permitted to temporarily remove X from the Commonwealth of Australia for a period of travel PROVIDED THAT:
(a)The Mother is permitted to travel with X during the periods set out in Order 7(e)(i);
(b)In the event the Mother and Father agree in writing to X travelling overseas at other times (including in the event of an emergency, serious illness or death in the family):
(i)Such travel will not exceed 30 consecutive days including travel time;
(ii)X cannot miss more than 10 days of school without written consent from the non-travelling parent;
(iii)The non-travelling parent will not unreasonably without their consent in the event of an emergency, serious illness or death in the family;
(iv)If the period of overseas travel takes time with X away from the non-travelling parent, the non-travelling parent will have make-up time with X, with such time to take place in the school holiday period immediately following the period in which X travelled;
(c)Neither parent is permitted to take X to a country where a DFAT travel warning has been issued without the express written consent of the other parent;
(d)The travelling parent provides the other parent with forty-two (42) days' notice of their intention to travel overseas with X;
(e)In the event the non-travelling parent is required to sign a travel document to facilitate X’s overseas travel, they must sign and return the travel document to the travelling parent within seven (7) days of receiving the document;
(f)The travelling parent provides the other parent with a full itinerary of their proposed travel including details of return flights/tickets, transfer, accommodation and contact details for X not less than twenty-one (21) days prior to departure and copies of travel documents where possible;
(g)X will communicate with the non-travelling parent by telephone at least once per week taking into consideration time difference and flights etc.
The Mother will hold X's Australian passport except in accordance with Order 28 below.
The Mother is permitted to apply for a renewal of the Australian passport for the Child X (born … 2009) without the consent of the Father, noting that sole long term parental responsibility has been allocated to the Mother pursuant to Order 2 above.
In the event that the Father intends to travel outside of the Commonwealth of Australia with X pursuant to Order 25 above, the Mother will provide the Father with X’s passport at least fourteen (14) days prior to the departure date (or an earlier date, in the event that the Father requires the passport to finalise travel arrangements) and the Father will return X’s passport to the Mother within seven (7) days of their return.
Within twenty-eight (28) days of the date of these Orders, the Father will contact Relationships Australia Suburb D to make the first available appointment for individual counselling / therapy and for the purposes of this Order:-
(a)Leave is granted to the Father to (and the Father must) provide copies of the following documents to the therapist during the first appointment the Father has with the therapist:-
(i)A copy of these Orders;
(ii)Judge Altobelli’s Interim Judgment dated 2 November 2018 (published as Messana & Messana [2018] FCCA 3284);
(iii)CDC Memorandum dated 27 April 2017;
(iv)Family Report dated 14 August 2018; and
(v)CIC Memorandum dated 17 September 2019;
(b)The purpose of the therapy is to assist the Father to be Child-focussed in order to maintain and further develop his relationship with X;
(c)The Father will attend upon the therapist at a frequency as recommended by the therapist, but for at least eight (8) sessions;
(d)The Father is solely responsible for the costs of such therapy.
By no later than 12 December 2019, the Mother’s legal representatives advise the Independent Children’s Lawyer and the Father’s legal representatives, of which Affidavits the Mother is relying on, and the availability of the Mother’s witnesses to give evidence.
By no later than 19 December 2019, the Father’s legal representatives advise the Mother’s legal representatives, the Independent Children’s Lawyer, and the Court, which of the Mother’s witnesses are required for cross examination, and whether they agree to evidence being given other than in person.
Within 14 days, the Father is to meet with the male Family Support Worker at the Wollongong Registry of the Court to discuss with him the two Judgments that have been published in these proceedings to date.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 7 days’ notice by application to the Court in Chambers in appropriate circumstances.
IT IS NOTED that publication of this judgment under the pseudonym Messana & Messana (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 152 of 2017
| MS MESSANA |
Applicant
And
| MR MESSANA |
Respondent
REASONS FOR JUDGMENT
Introduction
This case continues to be about a Child, X, who is now ten years old. On 2 November 2018 I delivered Reasons for Judgment explaining the interim Orders that I had made following the first two days of evidence in this case, published as Messana & Messana [2018] FCCA 3284. The matter was adjourned part-heard to 26 and 27 September 2019.
By way of preliminary observations, the Court notes that once again this matter has not concluded within the time allowed, and is once again part-heard. Interim orders are being made, and these Reasons explain those interim orders. Regrettably, not much has changed despite the passage of time, and the making of the 2018 interim orders. For example, it is still the case that the greatest risk of harm to X in this case is the continuing, intractable conflict between his parents, and his exposure to it. It continues to be the case that despite the fact that X is very much loved by both his mother and father, they remain totally oblivious to the risk that their conflict presents to him. The self-absorption with the conflict between the parents continues and they struggle to prioritise his needs over their own.
A number of matters did occur, however, that were beyond the control of the parents, or of the Court. For example, Ms B the Family Consultant who prepared the Family Report in this matter was not available to provide an updated Report which, from the Court’s perspective, would have been invaluable. The next best alternative was for a Child Inclusive Conference to take place, even though it meant X engaging with a new expert. The Child Inclusive Conference memorandum came into evidence, and the Family Consultant was cross-examined.
The next significant development was that section 102NA of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”) came into effect. In the Court’s earlier Reasons for Judgment it had made findings about family violence perpetrated by the Father against the Mother. The Court concluded that section 102NA applied to this case even though it was part-heard as at the time the section came into effect.
The Court’s conclusion in this regard was strengthened by comments in the Explanatory Memorandum. This meant that neither the Mother, nor the Father, could cross-examine each other. Their rights under section 102NA were explained to them. The parents were given adequate time to consider their position in this regard. In order to maximise the use of the time that had been allocated, the Independent Children’s Lawyer was permitted to cross examine both parents in relation to both final and interim issues, but with a particular focus on events that had occurred since the last Hearing. In addition, it was anticipated the cross-examination of other witnesses could still occur. After considering their position, the Father seemed ambivalent about his rights under section 102NA, but the Mother advised the Court that she did wish to take advantage of that section. This necessarily involved the matter becoming part-heard, once again. The Court will make a number of observations and directions in its concluding comments about how the rescheduled Hearing should take place.
Another significant development during the intervening period was that the Father had raised the issue of paternity in relation to X. His evidence in this regard will be discussed below. The Father was pressed to decide whether he was seeking an adjournment in order that paternity could be established. He eventually indicated that he would not seek an adjournment but, it should be noted, the Court had already indicated that it was not prepared to adjourn on the basis of alleged paternity concerns in circumstances where the Father indicated to the Court that he held those concerned since the date of separation, had not raised them until after the commencement of this Hearing last year, and in circumstances where the Mother did not doubt paternity.
Applicable Law
The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(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).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(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;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) 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;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
New evidence
Directions had been made that enabled both parents to provide updating Affidavits. The Mother did so, by way of an Affidavit sworn 10 September 2019. The Father did not. The Child Inclusive Conference conducted by Family Consultant Ms C produced a memorandum dated 17 September 2019. That became exhibit ‘ICL 1’.
In the Mother’s evidence she raises issues about the Father constantly questioning X during his time, an incident that occurred at City A Hospital on 13 April 2019, problems with telephone calls, issues a changeover, inability to agree about a passport renewal for X, and a number of other issues that will be discussed in more detail as the evidence of both parents in cross-examination is explored.
The Child Inclusive Conference memorandum warrants separate attention, particularly as Ms C was cross-examined.
The competing proposals
It was apparent to all parties that the existing interim Orders would need to be revisited. The proposal of the Independent Children’s Lawyer was, as it turns out, the Orders that the Court makes. The Mother’s initial proposal was that the Father’s time be limited to special occasions only. That was certainly her proposed final orders. It is less clear to the Court if that was her proposal for further interim orders. The impression the Court formed is that the Mother largely supported the further interim orders proposed by the Independent Children’s Lawyer, but the Court makes it clear that even if that were not the case, the orders proposed by the Independent Children’s Lawyer are in X’s best interests. The Father largely adopted the Independent Children’s Lawyer’s proposal, as a further interim order, with proposed alterations to the changeover arrangements, extra telephone calls, a request in relation to Facebook photos, use of WhatsApp, and a number of other minor changes.
The substantive issue before the Court continued to be the Orders that govern X’s time with his father.
The Child Inclusive Conference memorandum, and evidence of Ms C
The Child Inclusive Conference with Ms C took place on 17 September 2019. Under the heading ‘issues in dispute’ she recorded the following issues. The Father had raised the issue of the paternity of X, and proposed a paternity test. The Father wanted X’s name to be changed from ‘X’ to ‘X’ allegedly following a cultural tradition of the child taking the father’s first name as their surname. The Mother opposed this. There was an issue about renewing X’s passport, even though both parents agreed for this to take place. The Mother now wanted sole parental responsibility, the Father that it continued to be shared. The Mother wanted to limit the Father’s time with X if he could not stop harassing X, but the Father proposed that X spend time with him each weekend, or for two out of three weekends, from Saturday to Sunday. The Mother proposed phone calls once a fortnight, the Father wanted X to have his own phone so that they could communicate freely. There was an emerging issue about where X would attend high school in 2022.
The Court observes that, disconcertingly, rather than the passage of time and the forensic scrutiny of this litigation causing the parents to re-orientate and perhaps narrow the issues in dispute, precisely the opposite has occurred. Indeed, the Father raised two new significant issues, paternity and surname.
There are a number of important observations made by the Family Consultant that need to be recorded in the present Reasons for Judgment. The Mother presented as being upset, but ‘somewhat defensive’ when the Family Consultant provided feedback to her that X appeared to have adopted her narrative of the separation. The Father presented as having high levels of distress, frustration, distrust and blame. The Court observes that it had the benefit of observing both the Mother and Father in further cross-examination and it is apparent to the Court that the Family Consultant’s observations of the parents are palpably consistent with the Court’s observations of the parents in cross-examination.
Moreover, the Family Consultant observed that the Father appeared to find it very difficult to take on board her advice regarding the impact of his behaviour on X;
Mr Messana seemed to be focused on his own feelings of distress associated with his perception that others (the Court and Ms Messana and X) are not allowing him to fulfil his role as father to X.
The Court observes that in its previous Reasons for Judgment it found both parents to be self-focused.
The Family Consultant’s observations about X are important. An edited version of this is reproduced below: –
X (aged 10 years 2 months)
X seemed to be primed to describe the difficulties he is experiencing with his father, commencing discussion in the waiting area. When X was advised that what he says may be shared with his parents and the Judge, he indicated that he is worried about how his father might respond.
X is well aware that his father wants him to change his surname from Mr Messana to Mr Messana; it was the first issue that X raised. He said that “most kids at church” have their father’s first name as their surname. X said that his father talks to him about this issue frequently and has done so since their time together became unsupervised. X perceives that his father wants him to take action in order to change his surname, including telling the ICL and the Family Consultant that he wants to change it. X reported that his father has told him that they will not be able to do fun things together if he (X) does not change his surname, which he perceives as his father “threatening” him. X appears to have felt immense pressure from his father on this issue and he indicated that he tends to agree with his father so as to avoid further pressure and possible anger from his father.
X said he does not know what his mother thinks about his surname, but it seems apparent that he would understand that his mother does not agree with his father.
X does not seem to consider the issue of changing his surname to be important. He seems to be confused as to why it is being raised by his father as an issue, and is reluctant to do something that he does not perceive to be actually about him in any personal way. He seems to want to retain his current surname.
X said that he has been to “all the cool places” such as the zoo and the aquarium with his father. However, he perceives that his father does not like any of his maternal family members, particularly his grandfather and aunt. He said that his father asks him questions about his maternal grandfather, including where his maternal grandfather sleeps (X did not given any indication that he is aware of his father’s allegation regarding the relationship between the mother and maternal grandfather). X seems to perceive that his father is focussed on gathering information about his maternal family to “make them sound bad” and that his father does not want to talk to him or know him and often seems to be angry at him. X indicated wariness about his father attending events such as his Holy Communion, because he worries that his father would cause a scene. X also mentioned that his father feeds him junk food, which caused him to be constipated, and that his father took him sailing when he was sick.
X does not seem to perceive the weekly phone calls with his father to be a positive experience. He said that he told his father, when his father was videoing him, that he wanted to talk to his father every weekday, but he said he did this because, if he did not, his father would become angry. It seems that Mr Messana has made statements to X that indicate Mr Messana is rejecting X in response to his perception that X is rejecting him. This has caused X to feel “sad” and cry.
X seems to have a heightened sense of caution with regard to his father. He seems to worry that his father may try to take him away from his mother. He seems to have a negative view of his father stemming from his parents’ separation, which he appears to believe involved his father having “kicked us out”.
X appears to feel that the increased amount of time that he spends with his father now is not going well. X seems to be aware of the possibility of him living week about between his parents, but he does not want to do that. He seems to be aware that his father has proposed he spend every weekend with him, but he does not want to do that. X said he is unsure what his mother proposes with regard to him spending time with his father. X seems to perceive that his father adds stress to his life and he appears to feel that he could avoid that stress if he were to spend no time and not communicate with his father.
X was informally observed when he greeted his father. Mr Messana was on the phone and X stood awkwardly whilst Mr Messana affectionately ruffled his hair. Mr Messana requested a hug and X gave him a hug, but X seemed stiff and uncomfortable. When X was to leave, Mr Messana tried to call to him to gain his attention to say goodbye, but X did not look up from what he was doing (whilst in the waiting area close to his mother and maternal grandfather).
Equally important is the Family Consultant’s recitation of the issues for X, reproduced below:-
X is currently living/spend time between two parents who have a very poor co-parenting relationship, characterised by allegations of violence and control, allegations of alienation and mutual distrust and constant accusation.
X’s current views are likely to have been influenced by his mother. His narrative of the parents’ separation is that of his mother’s – that his father “kicked us out”. Some of his complaints about his father are driven by his mother, for example the junk food. It is quite apparent that X lives within an atmosphere in his maternal household that involves distrust of his father. This likely makes it very stressful and difficult for him to openly develop a meaningful relationship with his father and have his father involved in his life.
X’s current views are also in response to his experiences with his father. Mr Messana acknowledges talking to X about changing his surname and videoing him saying he wants more phone calls. These particular behaviours have served to upset and intimidate X. Mr Messana having tried to convince X to change his surname is particularly concerning, given that X has no legal capacity to change his surname. The passion with which Mr Messana discusses this issue is also of particular concern. He seems to be having some kind of personal crisis with regards to his parenting role and he does not seem to have the capacity to be focussed on X’s needs at this time. This places X at risk of psychological harm.
Under the heading ‘future directions’ Ms C emphasised that continuing conflict between the parents, to which X continues to be exposed, would have a detrimental impact on his development. Indeed, she expressed the clear concern that if the Father continues to put pressure on X with regard to issues in dispute between the parents, it would likely create greater distance in his relationship with X, and as X grows older he will become more and more disinclined to spend time with his father. If X ceases spending time with his father, he will likely lose that relationship completely, become more influenced by his mother’s negative views of his father, which might result in him having particular psychological difficulties throughout his adolescence and adulthood. The Family Consultant gave the Father advice that it would be in his son’s best interests if he were to call X the following day and reassure him that he loves him and that he is sorry if he has made him feel pressured or uncomfortable. She observed, however, that the Father seemed to be in a distressed state and unable to take on feedback or advice. Nonetheless, she continued to suggest that the Father needed to acknowledge his son’s perceptions, views and feelings and reassure X that he understands how difficult this situation is for him.
Ms C was extensively cross-examined by Ms Temelkovska, the Independent Children’s Lawyers’ advocate. The following points emerged from the cross-examination: –
·She conceded the possibility that her concern about X being primed by his mother might not be as great if, as contended, the Independent Children’s Lawyer had encouraged him to express all of his concerns at the Child Inclusive Conference.
·X clearly feels harassed by his father. Her conclusion was based on what X told her, and the Father’s concessions about what he told X.
·X feels intense pressure from his father about changing his surname. Indeed, X used the word ‘threatened’. He said to the Family Consultant words to the effect that his father told him they would not do fun things unless he changed his surname. Indeed, the Family Consultant read from her notes and quoted: ‘you can’t do fun things, said X’s father’.
·The Father clearly did not understand the impact on X of his own feelings and of the issues he was raising. He was entirely focused on his own beliefs.
·The Father felt that it was a rejection of him as a father, if X did not adopt his name.
·The Family Consultant was showed a video, tendered into evidence, of a video call from X to his mother, made whilst in his father’s care, in which X asks for more telephone contact with his father. By way of background, this has been a consistent request by the Father, but denied by the Mother. The Family Consultant was asked whether it appeared to her that X was reading from something, possibly a script. She explained that it could have been, that it sounded like it, and in any event it did not sound natural, but rehearsed. It was possible that the making of a video was a joint effort. In terms of the impact on X, it would place great pressure on him. It placed him directly between his mother and father’s conflict. Whatever happens, he would displease one of his parents. He should not be the messenger. The incident put X in an ‘impossible situation as he can’t please both of his parents.’
·The Family Consultant thought this demonstrated the very low level of the Father’s understanding of his son’s needs. She suggested that he got caught up in his self-belief again.
·The Family Consultant emphasised that the risk to the relationship between X and his father if his father continue to place pressure on him, was a grave one. The distance in their relationship would increase. There would be a risk of losing it all together. The evidence of the video made it more plausible that the Mother’s concerns about X resisting time with his father was well based. She explained that when X himself used the words: ‘stress in his life’ it was associated with spending time with his father. She stressed that X was at a developmental stage where he will start resisting contact. This might not be such a big problem if the Mother were better able to support X’s relationship with his father. But this would become increasingly difficult for her, not just because of her feelings towards the Father, but because of the increasing pressure in her own relationship with X if he continues to resist.
·She explained that X was plainly aware of the Father’s negative views about the maternal family, saying to her: ‘he doesn’t like anyone in my family.’
·She acknowledged that whilst sleeping arrangements in the Mother’s home was an issue for the Father, it was certainly not for X who seemed oblivious to any of the concerns that the Father was raising about the Mother’s alleged incestuous relationship with the maternal grandfather.
·The incident at the hospital reflected poorly on the parents. This incident will be discussed in more detail below. From the Family Consultant’s perspective this demonstrated the enormous problems evident in the parental relationship. At a time when X was in clear need, his parents were in conflict.
·The Family Consultant believed there was still a sense in which X had accepted his mother’s narrative about his father, ostensibly based on X saying things that could not possibly be based on an independent recollection. Her impression is that he has had stories told to him, presumably by his mother, which he has retained. The Family Consultant explained that she told the Mother that it was not helpful for X to hear bad stories about his father, but her impression was that the Mother did not seem to take this on. Of concern to the Family Consultant was that when she asked X about the enjoyable times with his father, it started out as being all negative, and she really had to press for the positives, and even then this was measured. She described the ‘struggle in his mind’.
·In terms of the changes that the Mother needed to make, she needed to better hide from X her own personal emotions towards the Father, and protect him from those feelings. She had to give X encouragement and acceptance of a relationship with his father. The Family Consultant did not get the impression that the Father was actively denigrated in the Mother’s home, but rather it was the atmosphere and her general narrative, it was the exclusion of the Father from events and the competitiveness evident at, for example, the hospital incident.
·The Family Consultant felt that both parents were compromised in their ability and capacity to meet the emotional needs of X. The Mother was probably more aware, compared to the Father. The Father is blinded in this regard. She would have more confidence in the Father if he had done what she suggested in the Child Inclusive Conference, and that is that he call X as suggested.
·The Family Consultant was quite concerned when it was explained to her that the Father had not, in fact, done as she suggested. She was worried about how X would interpret that. As it turns out, the Father rang X, but did not deliver the apology and statements the Family Consultant suggested. Her concern was that it would not have reassured X who was nervous about his father knowing some of the things that he said. She was worried that the Father could not put X ahead of his own emotional needs.
·In terms of future interim orders, the Family Consultant felt that it should not be more than once a week, from the perspective of X. Block time with his father depends on his father. If there was a risk of the Father expressing anger at X, or rejecting him, then block time was problematic. If the Father could simply acknowledge to X that the Family Consultant had let him know certain things, could apologise, that could make a big difference in reducing the burden on X. If this could be done, then alternate weekend time was feasible. If he can’t do it, however, there was a real risk that his time would fall away.
The Mother cross examined the Family Consultant. She challenged the Family Consultant’s impression that there was an assimilation by X of the Mother’s negative narrative. The Mother suggested that any negative narrative was an independent one, formed by X. The Family Consultant rejected that firmly. The difficulty, she explained, is that X has responded to the Mother’s emotions. She explained that X said to her that ‘Dad kicked us out’ –something of which could not be based on his own experience, and which must be based on the Mother’s experience. The Mother’s cross examination of the Family Consultant merely demonstrated the significance of what the latter said in her memorandum.
The Father cross examined the Family Consultant. He sought to defend himself about not acting in accordance with her recommendations about ringing X. He was clearly emotional as he was raising this with the Family Consultant. She acknowledged that it was better that he rang, rather than not ringing at all, but suggested he had missed an important opportunity. To the extent that the Father’s emotional state was part of the reason why he did not do as was suggested, she suggested that it was important for him to manage his emotions in a way better. She acknowledged that he was concerned about losing the relationship with his son, but emphasised to him that what he was doing was pushing his own son away. She suggested to him that the issues that he raised about the Mother’s allegedly incestuous relationship with her own father was meant to shame her, rather than anything else. She acknowledged that the Father was not a bad parent, but he was getting caught up in emotions and in a belief system which was having the opposite effect to that which he was hoping to achieve: a better relationship with his son. She explained to the Father that X was stressed, and this was coming from the Father, and his behaviour. He does not understand why his Father is acting the way he is. He does not understand why the name change is important.
In assessing the weight to be given to the evidence of Ms C, it is of course important to understand that she conducted a Child Inclusive Conference that presents preliminary expert advice. Nonetheless, she did so in circumstances where there is already an existing Family Report of Ms B, which is in evidence. Ms B had been extensively cross-examined previously. The similarity in terms of the content of the Reports is apparent. Her impressions of the parents are entirely consistent with the evidence before the Court. Accordingly, even though the evidence from Ms C is in the context of preliminary expert advice, in the circumstances of this case the Court gives her evidence substantial weight.
The Mother’s further evidence
The Mother was cross-examined on her further Affidavit. The focus, for present purposes, will be on events since the matter was last before the Court. She explained in cross examination that when X returns from time with his father he complains about his father’s questioning of him about what they do, and who they see. She said, for example, that X is worried that if he tells his father that his grandfather picks him up from school, his father will get angry.
She said that amongst the things that X said his father asks about is ‘where do your Mother and grandfather sleep’, and ‘do they sleep together in the same bed?’ She said that was raised by X between four and six weeks before the date on which she was giving evidence. Pausing here, the Court observes that this is very significant evidence, if true. The Mother’s assertion, however, is inconsistent with the observations of Ms C, and inconsistent with the Father’s evidence. As will become apparent, but perhaps unsurprisingly, the Court regards both parents as unreliable historians of past events, even recent past events. Regrettably, each parent looks at past events through a lens which distorts reality. For example, both of them seem willing to interpret whatever X might have said to them in the worst possible way against the other parent. This is the case even when, on any objective basis, there is a more benign alternative interpretation. The Mother here is inferring in her evidence that the Father has suggested to X that his mother is in an incestuous relationship with his grandfather. As the Family Consultant explained, however, that is quite different from the Mother and grandfather sharing a bed in circumstances where the accommodation is clearly cramped. There is no evidence, at this stage, to suggest that X is aware of his Father’s concerns about an incestuous relationship. Moreover, the Court observes, noting that the evidence is not necessarily complete, there is no cogent evidence to suggest that such an incestuous relationship exists.
In paragraph 3 of her Affidavit, the Mother makes reference to X saying to her that his father asked him to throw away something that was dear to him. When X said he could not, he says his father got angry. In cross examination, this was explored further with the Mother. She explained that these were shoes that she had bought for him, for his birthday. She explained that X told her that his father wanted him to throw them away, because his dad wanted him to wear the shoes that he had bought for him.
It is convenient to deal with the Father’s evidence in relation to the shoes, at this point. The Father denied that he told X to throw away his mother’s shoes. He explained that he gave to X new skate shoes. Skating is one of the activities they do together. He says that X asked him whether his father wanted him to “chuck” the other shoes away. The Father said: ‘do whatever you want.’ In relation to this incident the Father in cross examination said that he observed no stress, or anger, in X and that the Mother’s account of this in her Affidavit was exaggerated.
There are two significant issues here, from the Court’s perspective. Even if the Father said only what he said he did: ‘do whatever you want’, it was insensitive and failed to appreciate that X might interpret what he said as devaluing the shoes that his mother had given him. The second significant issue is that it gives the Court an insight into the world in which X lives. It is a world in which he does not have the freedom to wear, let alone cherish, things that one parent has given to him whilst in the other parent’s household. If only these parents could understand that it is not about shoes. This merely exemplifies what it is like for this young boy to navigate the no man’s land of his parents entrenched conflict.
Returning to the Mother’s evidence, but consistent with the above theme, she explained that X tells her before he goes to see his father: ‘Mum, please make sure I am wearing the shirt Dad got me, as he might otherwise get angry.’ The consistency between the shirt issue, and the shoe issue, makes the Mother’s evidence in this regard more plausible.
The Mother was cross-examined about the Family Consultant’s assertion that X had taken on her narrative, i.e. has adopted her stories about the past. She was insistent in saying that she had not said anything bad about the Father to X. She tells X to respect his father. But when asked whether she could see the benefit to X of time with his father, her response was that she thought he should have minimum time with his father due to the negative impact of what the Father says to him, which is causing psychological and emotional harm. Ultimately, she accepted that she had a negative view about the Father, but she insisted that she never says anything about the Father in the presence of X. She even rejected the proposition that X could pick up on her negativity. She insisted that she told X that his father was to be respected in all circumstances, but then added this rider: ‘… Even when I think he is not doing the right thing.’ This, ironically, merely reflects the legitimacy of the concerns raised about her negative attitudes towards the Father.
There are two last points about the Mother’s evidence that are worth noting. She asserted in cross examination that X comes home and says to her words to the effect: ‘Mum why don’t you marry again so I can be happy again.’ It is plausible that X is saying this given the impossible situation his parents have placed him in. Secondly, the Mother is convinced that the Father is unable to change and indeed does not want to change. Her opinion was that it does not matter what the orders are, the Father will do his own thing. But for the reality that the Father’s own evidence supports some of the Mother’s cynicism in this regard, her opinion could be easily rejected.
The Father’s evidence
The Father was cross-examined by Ms Temelkovska.
His cynicism about the Mother easily matched hers about him. One reason he gave for not providing an updating Affidavit was that: ‘anything I say would infuriate her.’ Moreover, in again trying to explain why he did not take advantage of an opportunity to provide an updating Affidavit he introduced what was to be a theme of his evidence and that is that he lacked the mental strength to continue the proceedings, that it was pointless, and that he was ‘happy to run away.’ Despite this pessimism, by the end of his cross-examination he told them the Court that he was going to persist. One cannot help but wonder, however, about the significance of the threat to walk away? Was the Father being genuine? Was there a sense in which even he believed that some of his own actions were causing harm to his son? Was there at least some awareness in the Father that his son would be better off with less involvement in his life? At the heart of the Father’s concern, was there an acknowledgement that taking the pressure off his son, by settling this litigation, was in fact the best outcome for X? Alternatively, were these threats mere manipulation attempts? The Father would do well to reflect on these matters.
The Father categorically rejected the Mother’s allegations of what the Father said to X, purportedly based on X’s reports to her.
Since the last Hearing, the Father had moved from City A to Suburb E, and was now working in Suburb F. This was making it very difficult for him to comply with the Orders made 2 November 2018 which required him to collect X from after school on Friday.
He was extensively cross-examined about the surname issue. Referring to paragraph 8 of the Mother’s Affidavit of 10 September 2019, he agreed that he had a conversation with X in which he asked him to change his surname. He agreed that he told X that all children have their father’s name. It was put to him that he told X: ‘if you love me, you will add my name.’ The Father said that what he told X was: ‘Daddy would love you to have my name.’ The Father rejected the proposition that he said to X: ‘otherwise when I have another child I will name him Mr Messana.’ He also denied calling his mother ‘a bitch’.
The Father was then cross-examined about the events referred to at paragraph 9 of the Mother’s Affidavit. She refers there to the changeover that took place on Friday, 10 May 2019 when X was resisting getting into his father’s car. The Mother says that X came to her and explained that his father wants to apologise for calling her bad names. This happened, and she convinced X to go with his father. In cross examination, the Father had a slightly different version. He explained that, firstly, they were late, and the Mother had previously texted him to say X did not want to go. At the changeover, the Father explained, X was constantly looking back at his mother. The Father says that X told him: ‘go and deal with Mum.’ The Father said he then got out of the car, asked X if he wanted him to apologise to his mother, and did so. He did not apologise for calling the Mother bad names, because he denied doing so. He apologised for ‘everything’. This was in front of X. The Father attributed X’s resistance at the changeover entirely to the Mother. When it was suggested to him that, perhaps, his phone call two days ago in which he asked X to change his name might have had something to do with it, he flatly rejected that.
The evidence of both parents about the incident at changeover has more consistencies than inconsistencies and, once again, provides a tragic insight into the world in which X lives. It should have been as simple as going from his mother’s car to his father’s car. It should have been as simple as X traversing the physical territory between his parents. Instead, X was forced to navigate the treacherous territory between two starkly different psychological worlds: his mother’s world, and his father’s world. It does not matter whose idea the apology was because it was never a situation that a 10-year-old boy should have been placed in. Both parents are to blame for this. The Father lacks insight for failing to see what was the likely relationship between the two events that occurred within a few days of each other.
The Father was cross-examined about the video in which X asks his mother for more telephone contact with his father. He agreed that he made the video but denied that it was scripted. He denied that anything was written down. He agreed that the purpose of the video was to send to the Mother. He agreed that the intention was that it would convince her that X wanted to spend more time with his father on the telephone. He insisted that this was something X wanted, but agreed that in email correspondence with the Independent Children’s Lawyer he had stated that it was something he wanted. He accepted that he had not, at the time, considered the stress that this would place on X. Indeed, the strong impression formed by the Court is that at the very least, the Father was gaining some insight about the stress that this placed on X during the cross-examination.
He was asked to explain what he told X to say. He explained that he said to X that ‘if it is a video message your mother can’t say that you didn’t ask her for more time.’ He then added, emotionally, words to the effect: ‘I was fighting for an inch of space in the memory of his mind.’ He accepted that X told the Family Consultant at the Child Inclusive Conference that he felt pressured about the telephone call. The Father said words to the effect: ‘if that is so, I will not do it… But these are precious moments.’ The Court cannot help but observe that what could easily be construed as a moment of insight rapidly vanishes with a relapse into preoccupation with the Father’s own needs. Finally, the Father was asked to reflect on the incident about the video in its entirety. He explained words to the effect: ‘it’s not a big issue for a son to do a video when his Father asks him to do it… But now I realise it was a bad thing.’
The focus turned to the hospital incident. The Mother gives evidence about this at paragraph 4 of her Affidavit of 10 September 2019. She explains that the Father called her at about 2:00pm and asked her to come up to City A Hospital emergency immediately. When she asked what had happened to X he would not say, but she ran to the hospital. When she got there X told her that he had a fishbone stuck in his throat. He was crying badly. The Father was there. She says that the Father would not let her sit next to X. He asked her to go away, and was very abusive, but X wanted her. She explains that the change over time was 4:00pm. She deposes that X said to her: ‘Mum, more than the pain in my throat, my dad’s actions have stabbed my heart. He left leaving me wounded’.
The Father’s version of this event was elicited in cross examination. He accepted that he was stressed because of what had happened, but denied being abusive. X was in pain. He asked if he could see his mother. He called her, asked her to come up to the emergency room, but did not tell her why. He may have said something about X’s breathing. He seemed to be very focused on his own distress as the reason for not telling the Mother more. He explained that he had a child in his arms struggling to breathe. When the nurses saw them, at some point, X’s oxygen saturation level was good, and they suggested that even though he had a fishbone in his throat, he would be okay.
When the Mother arrived the Father said that he asked X: ‘do you want your Mother to sit with you?’ The Father said that X said: ‘I want you both…’ The Father said that the Mother slowly wanted to take over, but he wanted X to sleep in his arms. Eventually he decided to walk away as he was conscious of the AVO that was in place. He walked away, but did not leave, observing from a distance. He flatly denied abusing the Mother, and specifically calling her a ‘fucking bitch’. He explained that he was conscious of the AVO against him.
It seems that when X was being treated, he re-joined X and his mother in the treatment room. The Father explained words to the effect: ‘I was holding his hand when they were trying to take the fishbone out… And then she saw me and took his other hand.’ It was suggested to him that it was some form of competition. He said he did not know, and certainly was not on his part.
The theme of the parents competing for the love of their son was a theme that was introduced in the first Reasons for Judgment in this matter. It is hard to interpret the events in question as being anything other than a competition between parents over their son. If X said, as his father contends, words to the effect: ‘I want you both…’, it epitomises his perspective on this entire case, but reflects the dilemma that he is in. He wants both of his parents in his life, but, seemingly, neither of his parents is prepared to allow the other to be there. Even at a time of great need for X, his parents could not help but revert into competitive self-focussed behaviour.
Another tawdry issue that arose in between the Hearing dates related to getting X a new passport. Now, it is clear that both parents want X to have a passport and there is no dispute that it will be held by the Mother. The Father and Mother could not agree on a mechanism whereby the forms could be signed and submitted to the relevant authorities. She wanted it done her way. He wanted it done his way. One wonders whether this had anything to do with the passport at all? Given the totally dysfunctional family dynamics in this case, the issue of the passport was simply another manifestation of the intractable conflict between the parents.
There are a number of other issues that need to be briefly traversed. Despite an order that requires both parents to take X to church when he is in their care, the Father has not complied with this. He says that he took him to church on the first occasion when he was required to but X said to him words to the effect: ‘as everyone thinks you are a bad person, let’s not go there.’ The Father could not find an alternative church, so they have not been. He explained that he has lost his faith in God due to this court case. He suggested, in any event, that X was not getting anything out of going to church because the mass was conducted in a language that he did not speak or understand.
Some of the matters in the Child Inclusive Conference memorandum were put to the Father. He was asked to respond to the Family Consultant’s impression that he was more interested in his own feelings, than that of X. He said words to the effect: ‘I need to take care of my own mental well-being in order to help X. It’s like the oxygen mask in the aircraft. I have to put mine on first.’ This is a significant, and insightful thing for the Father to say. He was acknowledging, in effect, that he was prioritising his own feelings, above that of X. Indeed, in his answer to the next question he explained that he could not ‘multitask whilst focusing on his own interests’. The analogy with the oxygen mask deploying in an emergency on an aircraft is also insightful for its lack of insight on the Father’s part. Based on the totality of the evidence, the strong impression the Court forms is that the Father is putting on his own oxygen mask, but is then so distressed, and so self-focused, that he forgets to put on his son’s oxygen mask.
The further interim orders
Unlike the Orders made to November 2018, the orders proposed by the Independent Children’s Lawyer provide, in effect, for the Mother to have sole parental responsibility in relation to X, in relation to all matters except where he would live and even then it is limited to circumstances which renders the Father’s time with X significantly more difficult. The need for an order i.e. effectively sole parental responsibility, must surely be self-evident from the evidence above. The parents are unable to make joint decisions about their son. Even though, for example, they both want him to have a passport, they simply cannot reach common ground as to how the forms can be signed and submitted. The appalling level of trust and communication between the parents, and the intractable level of conflict between them, strongly contraindicates equal shared parenthood responsibility. The presumption in the statute is rebutted.
The evidence before the Court strongly contraindicates acceding to the Father’s requests for changes to the changeover arrangements, and increase to the telephone calls, or any modification to the orders proposed by the Independent Children’s Lawyer.
The orders proposed by the Independent Children’s Lawyer will be made as submitted.
The future of this matter
For the reasons explained at the beginning of this Judgment, this matter has had to be adjourned, again, despite the obvious disadvantage to X of the continuation of his parents’ self-indulgent conflict.
The matter will come back before me for directions on 19 December 2019 at 9:30. Hopefully the parents will have obtained legal representation consequential on the making of a section 102NA order. The matter has been adjourned to 2 and 3 March 2020, hopefully to conclude the evidence and this Hearing.
The capacity of the parents to expand the issues in dispute must not be underestimated. Accordingly, the Court will place limits on cross-examination, to ensure that the time is used efficiently. The Independent Children’s Lawyer will not be permitted to cross-examine the parents except in relation to any events that occur between now and the date of the Hearing. Those who represent the parents will also be limited in their cross-examination. Given the amount of evidence that each parent has already given, in the unusual circumstances of this case, and to mitigate the extreme disadvantage that any new lawyer coming into this case will experience, the Court will obtain transcripts of the evidence given so far, and provide the same to the lawyers who appear for the parents. However, they will be precluded from cross-examining in relation to issues in respect of which the advocate for the Independent Children’s Lawyer has already cross-examined the parents, unless the Court can be convinced that there is a forensic benefit of doing so. The forensic benefit, of course, must be to the Court, and not any forensic benefit perceived to the parents who seem more interested in establishing that the other is lying, even in relation to quite irrelevant issues.
There are, apparently, 4 other witnesses in the Mother’s case. The evidence of her father, the maternal grandfather, is self-evidently relevant. The relevance of the evidence from the other 3 witnesses is not as clear, particularly having regard to some of the findings that the Court has made so far. By no later than 12 December 2019 those representing the Mother will need to give notice to the Independent Children’s Lawyer, and those representing the Father, of which other Affidavits will be relied on, and the availability of the witnesses to give evidence. There was some suggestion that at least one of the witnesses could only give evidence by telephone. By no later than 19 December 2019, those representing the Father will need to indicate to the Mother’s solicitors, the Independent Children’s Lawyer, and to the Court, which of the Mothers witnesses are required for cross examination, and whether they agree to evidence being given other than in person.
The Court has other concerns about this case. The Father simply does not seem to be taking on advice that is given to him. He is frequently overcome with emotion in the courtroom. The Court is not at all sure that he has even read its Reasons for Judgment delivered 2 November 2018, or that he will read the present Reasons for Judgment. The Court is not sure that the Father will take advantage of any legal representation that becomes available to him pursuant to section 102 NA. Accordingly, the Father will be directed to within 14 days of handing down these Reasons for Judgment, and the making of these Orders, he is to meet with the male Family Support Worker at the Wollongong Registry of the Court to discuss with him the two Judgments that have been published to date.
The Independent Children’s Lawyer will have leave to relist this matter on 7 days’ notice.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 18 October 2019
Key Legal Topics
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Family Law
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Civil Procedure
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Jurisdiction
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Procedural Fairness
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Appeal
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