Mingotti and Papadakis and Anor
[2012] FamCA 339
•11 May 2012
FAMILY COURT OF AUSTRALIA
MINGOTTI & PAPADAKIS AND ANOR [2012] FamCA 339
FAMILY LAW – CHILDREN –Parental responsibility - Where the presumption of equal shared parental responsibility does not apply and would not be in the child’s best interests – Where the parents have an acrimonious relationship – Living arrangements – Whether the child should live mostly with the mother or mostly with the father - Where each of the parents has a loving relationship with the child - Schooling – Which high school the child should attend –Allegations of physical abuse by the father against the mother’s children – Where the child has consistently expressed a wish to live predominantly with the mother - Credibility – Where the orders sought by the parties are inconsistent with their evidence - Where the child’s half-brother may pose a risk of harm to the child - Duration and extent to which the child’s time with his half-brother should be supervised.
McCall & Clark (2009) FLC 93-405); Mazorski & Albright (2007) 37 Fam LR 518; Leighton & Carey [2010] FamCAFC 94; Briginshaw (1938) 60 CLR 33.
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61C, 61DA, 65DAA and 65DAC
Evidence Act 1995 (Cth) s 140.
APPLICANT: MOTHER Ms Mingotti
RESPONDENT FATHER: Mr Papadakis
SECOND RESPONDENT : Mr Nadal
FILE NUMBER: SYC 4566 of 2009
DATE DELIVERED: 11 May 2012
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Loughnan J
HEARING DATES: 9 - 13 January 2012 REPRESENTATION
COUNSEL FOR THE APPLICANT MOTHER: Mr D Eardley
SOLICITOR FOR THE APPLICANT MOTHER Y Law Firm SOLICITOR FOR THE RESPONDENT FATHER
X Law Firm
COUNSEL FOR THE SECOND RESPONDENT: Mr D Eardley
SOLICITOR FOR THE SECOND RESPONDENT Downey Lawyers Pty Ltd
COUNSEL FOR THE INDEPENDENT CHILD LAWYER Ms T Messner
SOLICITOR FOR THE CHILD Tiyce & Partners Lawyers Orders
1.The child B MINGOTTI-PAPADAKIS (“the child”) born … January 2000 shall live with the mother.
2.The child shall spend time with the father as follows;
a) During school term, each alternate weekend commencing from the conclusion of school Thursday until the commencement of school Monday;
b) On Father’s Day in each year from the conclusion of school Friday until the commencement of school Monday in the event that Father’s Day falls on a day when the child would otherwise be with the mother, and in the event that Mother’s Day falls on a day when the child would otherwise be with the father, then the father’s time with the child on that weekend be and is hereby suspended;
c) During the second half of each of the school holidays commencing at the conclusion of terms one, two and three with the father collecting the child from the mother’s residence or nominated location at 9:00 am on the middle day (or in the event that there is an even number of days in the school holidays, the day after the mid point of the school holidays) and returning the child to school by 8:45 am on the first day of the new school term;
d) Subject to e. below, during the Christmas holiday break:
i)from the conclusion of school on the last day of term, until:
·in 2012 and each alternate year thereafter, 5:00 pm on Christmas Eve; and
·in 2013 and each alternate year thereafter, 10:00 am on Boxing day;
and
ii)from noon on the second last Sunday of January until noon on the last Sunday in January;
e) On the birthday of each of the child and the father for a period of six hours as agreed between the parties and in the event the parties do not reach agreement from 1.00 pm on those days in the event they are not school days, and in the event the father’s birthday falls on a school day from the conclusion of school until the commencement of school the next day, or in the event the next day is not a school day until 9:00 am on that day.
f) Unless otherwise provided herein all changeovers which do not occur at school shall occur by the parent who has the care of the child delivering the child to the residence of the other parent at the commencement of the other parents’ time with the child.
3.Subject to Order 4, the mother shall have sole parental responsibility for all decisions concerning the long term care, welfare and development of the child and shall consult the father with respect to any decision required to be made and in the event of disagreement, the mother shall be responsible for the final determination.
4.The mother is restrained from changing the child’s school enrolment from C School without the prior written consent of the father.
5.The parties are hereby restrained from permitting Mr Nadal to reside in any home in which the child resides without the prior written consent of the other parent.
6.Unless the parents agree to the contrary in writing, the mother is restrained from permitting the child to spend time with Mr Nadal except in the home of the mother and supervised by another adult member of the mother’s family.
7.The mother shall immediately advise the father in the event she becomes aware:
a) That Mr Nadal has been admitted to a psychiatric treatment facility;
b) That Mr Nadal is using illicit drugs;
c) That Mr Nadal’s behaviour or presentation has deteriorated.
8.The parties shall ensure the child is punctual in his attendance at school.
9.In the event the child is absent from school for longer than one day, then the parent caring for the child shall obtain a medical certificate from a doctor describing his condition, diagnosis, prognosis and treatment and shall provide that certificate to the other parent and to the child’s school.
10.Unless otherwise agreed, the parties shall communicate with each other regarding matters relating to the child by email, unless in the event of emergency in which case they shall contact the other by mobile telephone on the number provided to the other parent.
11.Unless otherwise provided in these orders or agreed by the parties, school holiday time:
a) Shall commence at 10:00 am;
b) Shall conclude at 6:00 pm;
c) Shall be calculated from the last day of the school term until and including the day immediately before school resumes;
d) Pupil free days are deemed to be school holidays.
12. The parents shall make arrangements at the child’s school for the following:
a) That they both receive a copy of all school reports for the child;
b) That both parents receive notification of all school activities that they may desire to attend;
c) That the parents be informed of parent/teacher nights and the school is informed that it is the parents’ desire to attend such events; and
d) In the event of the child being taken from the school for an emergency, remedial or correctional treatment that the parents be informed as soon as is practicable.
13.In the event of the child suffering a medical condition or requiring medical attention while with either parent ;
a) That parent is to notify the other parent as soon as practicable including full details of the practitioner or medical facility upon which the child attends.
b) The parents shall ensure that all medical practitioners and medical facilities be advised that the parents shall have access to the child’s medical records and the information contained within them upon request.
14.Each parent shall provide to the other the addresses and telephone numbers for contacting the child while the child is in their care and control.
15.Each parent is restrained from denigrating the other parent in the presence or hearing of the child and they shall do all necessary things to ensure that no third party denigrates the other parent in the presence and or hearing of the child.
16.That the parties are restrained from causing or permitting the child to be known by any name, other than B Mingotti-Papadakis.
17.The application of the ICL that each of the parents pay costs in the sum of $9,515.50 plus one half of Dr D’s unpaid fee is adjourned to a date to be fixed.
18.Leave is granted to the parties to restore the proceedings to the list within 28 days of the date of delivery of judgment, or such further time as they might agree, in relation to any agreement about a change to the wording of the orders, an argument that the wording does not reflect these reasons; and or an application in respect of costs, including those referred to in Order 17. above.
19.IT IS NOTED that the mother has undertaken to attend upon a Child Psychologist for the purpose of seeking assistance with the parenting of the child and it is NOTED that the ICL has provided the mother with the name and contact details of E Centre in this regard.
20.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the attached Fact Sheet.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mingotti & Papadakis and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
FAMILY COURT OF AUSTRALIA AT SYDNEY FILE NUMBER: SYC 4566 of 2009
Ms Mingotti Applicant
and
Mr Papadakis Respondent
Mr Nadal Second Respondent
REASONS FOR JUDGMENT
Introduction
1.These are parenting proceedings in relation to B Mingotti-Papadakis (“the child”) who is 12 years of age. He is the child of Ms Mingotti and Mr Papadakis.
2.It is agreed that the child should live unsupervised, overnight and for block periods with each parent. The key disputes are whether the child should live mostly with his mother or mostly with his father; the duration and extent to which his time with his half-brother Mr Nadal should be supervised; and the high school he should attend.
Applications
3.In her Amended Initiating Application the mother sought certain orders. However, in the course of final submissions learned counsel for the mother said that, save in relation to some matters, the mother supported the orders sought on behalf of the child, by the Independent Children’s Lawyer (“ICL”). I have reproduced below the terms of the orders sought by the mother which is in the form of an amendment of ICL’s proposals.[1] As the document was drawn 2iii and 2iv deal will the same topic and are inconsistent. I will assume that the mother intends that the first paragraph of 2iv is sought in lieu of 2iii. The mother sought:
[1] Exhibit 7.
1.That the child [B MINGOTTI-PAPADAKIS] born […] January 2000 shall live with the mother.
2.That [the child] shall spend time with the father as follows;
a) During school term, each alternate weekend commencing from the conclusion of school Thursday until the commencement of school Monday;
b) On Father’s Day in each year from the conclusion of school Friday until the commencement of school Monday in the event Father’s Day falls on a day when the child would otherwise be with the mother, and in the event that Mother’s Day falls on a day when [the child] would otherwise be with the father, then the father’s time with [the child] on that weekend be and is hereby suspended;
c) One half of all mid-term New South Wales school holiday periods, for the first half in years ending in an even number and the second half in years ending in an odd number;d) During the second week of each of the school holiday commencing at the conclusion of terms one two and three with the father collecting [the child] from the mother’s residence or nominated location at 9am on the Monday of the second week of the school holidays and returning the child to school by 8.45am on the first return day of the new school term;
From 18 January each year until the day prior to the commencement of the new school year as advised by the mother with the father collecting [the child] from the mother’s residence or other place as nominated by the mother at 9am and returning the child to the mother’s residence or place as nominated by the mother at 5pm the day prior to the day [the child] commences the first return day of the new school year.
e) On the birthday of each of [the child] and the father for a period of six hours as agreed between the parties and in the event the parties do not reach agreement from 1pm on those days in the event they are not school days, and in the event the fathers birthday falls on a school day from the conclusion of school until the commencement of school the next day, or in the event the next day is not a school day until 9am on that day.
f) All changeovers which do not occur at school shall occur by the parent who has the care of [the child] delivering [the child] to the residence of the other parent at the commencement of the other parents time with [the child].
3.That pending further Order and on a final basis the mother shall ensure the attendance of the child at [C School].
4.That the mother shall have sole parental responsibility for all decisions concerning the long term care, welfare and development of [the child] and shall consult the father with respect to any decision required to be made and in the event of disagreement the mother shall be responsible for the final determination.
5.(deleted)
6.That the parties be and are hereby restrained from permitting [Mr Nadal] to reside in any home in which [the child] is a member without written consent from either parent.
7.That the mother be and is hereby restrained from permitting [the child] to spend time with [Mr Nadal] that is not supervised by an adult other than [Mr Nadal].
8.(deleted)
9.That the parties shall ensure the child is punctual in his attendance at school.
10.That in the event [the child] is absent from school for longer than one day, then the parent caring for [the child] shall obtain a medical certificate from a doctor describing his condition, diagnosis, prognosis and treatment and shall provide that certificate to the other parent and to [the child’s] school.
11.That unless otherwise agreed, the parties shall communicate with each other regarding matters relating to [the child] by email, unless in the event of emergency in which case they shall contact the other by mobile telephone on the number provided to the other parent.
12.School holiday time:
(i)Shall commence at 10am;
(ii)Shall conclude at 6pm;
(iii)Shall be calculated from the last day of the school term until and including the day immediately before school resumes;
(iv)Pupil free days are deemed to be school holidays.
13.That the parents shall make arrangements at the child’s school to as follows:
(a)That they both receive a copy of all school reports for the said subject child;
(b)That both parents receive notification of all school activities that they may desire to attend;
(c)That the parents be informed of parent/teacher nights and the school is informed that it is the parents desire to attend such events;
(d)In the event of the child being taken from the school for an emergency, remedial or correctional treatment that the parents be informed as soon as is practicable.
14.That in the event of [the child] suffering a medical condition or requiring medical attention while with either parent ;
(a)The other parent is to be notified as soon as practicable.
(b)That the parent be provided the full details of the practitioner or medical facility upon which the child attends as soon as practicable.
(c)That the medical practitioner or medical facility be advised that the parents have access to the child’s medical records and the information contained within them upon request.
15.That each parent shall provide to the other addresses and telephone numbers for the contact of [the child] while [the child] is in their care and control.
16.That each parent refrain from making critical remarks in relation to the other parent in the presence or hearing of [the child] and that each parent do all necessary things to ensure that no third party makes critical comments about the other parent in the presence and or hearing of the child.
17.That the parties are restrained from causing or permitting [the child] to be known by any name, other than [B Mingotti-Papadakis]
18.IT IS NOTED that the mother has undertaken to attend upon a Child Psychologist for the purpose of seeking assistance with the parenting of [the child] and it is NOTED that the ICL has provided the mother with the name and contact details of [E Centre] in this regard.
4.According to his Case Outline the father sought the following orders:
(a)That the child shall live with the father;
(b)That the father have sole parental responsibility for the child;
(c)During School terms the child spend time with the mother each alternate weekend after the commencement of the term from Friday 3:00 p.m. (after school) to Sunday 6.00 p.m. and each second Wednesday after the commencement of the school term from Wednesday 3:00 p.m. (after school) to Thursday 8.30 a.m. (before school the next day).
(d)That all changeovers during school term occur at the school at the conclusion of school.
(e)School Holidays be half each save for alternating year arrangements for Christmas day, boxing day and [the child’s] Birthday which falls very close to Christmas being […] January of each year;
(f)Or otherwise as agreed in writing;
(g)Provision for special days such as Fathers Day, Father’s Birthday, Mother’s Day, Mother’s Birthday, [Ms P’s] Birthday, [Ms A’s] Birthday, Easter.
(h)The father seeks the continuation of or initiation of Restraining Orders relating:
a.The parents attending on [the child’s] High School whilst the other parent is present,
b.The punctual attendance of [the child] to school,
c.The requirement for a medical certificate to be provided to explain absences from High School,
d.The mother from permitting or causing the child [B] to be known or recorded by the name “[B Mingotti]” and that any time the surname of the child is used or recorded by the applicant mother it is to be recorded as “[Mingotti-Papadakis]”.
e.The mother from permitting or causing the child [B] to come into personal contact with [MR NADAL].
f.The mother from permitting or causing the child [B] from opening on his behalf or permitting him to operate or access any social networking account on the internet including but not limited to the service called FACEBOOK on the world wide web other than with the express written permission of the respondent father.
g.The mother must provide to the respondent father all passwords and user names of all computer sites and related activities [the child] operates at the applicant mother’s residence or other premises whether at the respondent mother’s place of work or any portable computer or mobile device including mobile phone or mobile device of any type whatsoever.
h.That [MR NADAL] not come into personal contact with [the child] except under the direct supervision of the father.
i.That [MR NADAL], as a condition of spending time with [the child] is to provide the respondent father and keep the respondent father informed of his current residential address and current active mobile telephone number(s) and advise the father in writing of any change and update the particulars to these details at least ten (10) days prior to such change taking place and that in the event these particulars are not provided then spending time with [the child] will be suspended.
(i)There be a regime for [MR NADAL] to commence spending time with [the child] on a graduated basis, supervised by the respondent father, commencing with the following:
a.From the date of the making of these orders commencing on the first Saturday, for 3 consecutive months, each Saturday [the child] resides with the father from 1:00 p.m. to 2:00 p.m. supervised by the father and at a location organised between the father and [MR NADAL] directly by telephone. [MR NADAL] to provide the respondent father with his mobile telephone number for the purpose of this contact.
b.Thereafter, for a further 3 months each Saturday from 1:00 p.m. to 3:00 p.m. supervised by the respondent father and at a location organised between the respondent father and [MR NADAL] directly by telephone. [MR NADAL] to provide the respondent father with his mobile telephone number for the purpose of this time to be spent with [the child].
c.Following the conclusion of (a) and (b) above, thereafter, as agreed between the respondent father and [MR NADAL] in writing, supervised by the respondent father.
d.That, [MR NADAL], prior to each occasion he is to spend time with [the child], must:
i.Not consume any alcohol whatsoever 48 hours prior to any direct contact with [the child];
ii.Not consume any alcohol whatsoever while in the presence of [the child];
iii.Not have ingested or have consumed any illicit drug at all, but if so, at least 96 hours prior to commencing spending time with [the child];
iv.[MR NADAL] must provide to the respondent father, at least 2 hours prior to any contact with [the child], a written report of his urine sample testing analysis from a recognised medical or laboratory facility testing for and showing NIL presence in his results for the substances of:
·Alcohol
·Marijuana,
·Cocaine,
·Amphetamines,
·Ecstacy,
·Ice; or
·Speed.
(j)That each party, is restrained from discussing these proceedings or any matter relevant to these proceedings or in his hearing and shall restrain any third party from doing so.
(k)That the parties be and are hereby restrained from denigrating the other or any member of their household or family in the presence or hearing of the child and shall restrain any third party from doing so.
(l)That for the purposes of the live with and spend time with handover arrangements that are not at school, the applicant mother or her nominee is to deliver [the child] to the respondent father’s usual place of residence at the conclusion of the applicant mother’s live with period or collect the child from the respondent father’s usual place of residence.
(m)[The child] shall attend commencing in 2012 in year 7 to 2017 for years 7 to 12 inclusive, the secondary school described as [H CATHOLIC SCHOOL] at [SUBURB M] (“[H SCHOOL]”).
(n)In the alternative, that in the event, [the child] is not accepted into [H SCHOOL] then [the child] is to be enrolled into the state secondary school in the catchment area where the father resides at the time of the making of these Orders.
(o)That the respondent father or applicant mother shall not change the attendance of [the child] at the secondary school he commences in 2012, other than by Order of this Court or written agreement between them.
(p)That each parent may nominate from time to time a responsible adult to deliver [the child] to or collect him from school, however that nominee shall not be [MR NADAL].
(q)That each party keep the other informed of their current residential address and current active mobile telephone number(s) and advise the other parent in writing of any change and update the particulars to these details at least ten (10) days prior to such change taking place.
(r)That the applicant mother and the respondent father shall keep the other advised as to significant matters relating to the child whilst in their care including particulars of any serious illness or hospitalization or need for surgery prior to the same being undertaken unless in the event of an emergency and it is not otherwise practical to do so, otherwise, each party notify the other of any illness or medical condition suffered by the child within twenty-four (24) hours of becoming aware of such illness and medical condition.
(s)That neither party discuss these Court proceedings or any matter related to these Court proceedings with or in the presence or hearing or reading of [the child].
(t)That neither the mother nor the father denigrate the other or members of the others family in the presence of the child and shall use their best endeavors to ensure that no other person does so.
(u)That the Independent Children’s Lawyer meet with [the child] within 24 hours following the making of these Orders to explain them to [the child].
5.At the commencement of the second day of the trial, however, I was told that the father did not press for orders directly against Mr Nadal but instead sought orders in similar terms against the mother. I took it that referred to orders (h) h and i and (i) above. On the final day of the trial the father said that he sought orders in terms of the orders outlined in his Case Outline but as amended to the extent necessary to accommodate marked and annotated parts of the minute orders proposed by the ICL. His annotated version[2] of the ICL’s proposal is as follows:
[2] Exhibit 8.
1.That the child [B MINGOTTI-PAPADAKIS] born 7 January 2000 shall live with the mother.2.That [the child] shall spend time with the father as follows;
During school term
(i)During school term, each alternate weekend commencing from the conclusion of school Thursday until the commencement of school Monday;(ii)On Father’s Day in each year from the conclusion of school Friday until the commencement of school Monday in the event Father’s Day falls on a day when the child would otherwise be with the mother, and in the event that Mother’s Day falls on a day when [the child] would otherwise be with the father, then the father’s time with [the child] on that weekend be and is hereby suspended;
(iii)One half of all mid-term New South Wales school holiday periods, for the first half in years ending in an even number and the second half in years ending in an odd number;
(iv)During the Christmas holiday break from the conclusion of school on the last day of term, until 5pm on Christmas Eve, and from noon on the second last Sunday of January until noon on the last Sunday in January;(v)On the birthday of each of [the child] and the father for a period of six hours as agreed between the parties and in the event the parties do not reach agreement from 1pm on those days in the event they are not school days, and in the event the fathers birthday falls on a school day from the conclusion of school until the commencement of school the next day, or in the event the next day is not a school day until 9am on that day.
(vi)All changeovers which do not occur at school shall occur by the parent who has the care of [the child] delivering [the child] to the residence of the other parent at the commencement of the other parents time with [the child].
3.That pending further Order and on a final basisthe mother shall ensure the attendance of the child at [C School].
4.That the mother shall have sole parental responsibility for all decisions concerning the long term care, welfare and development of [the child] and shall consult the father with respect to any decision required to be made and in the event of disagreement the mother shall be responsible for the final determination.
5.That the mother be restrained from changing [the child’s] school enrolment from [C School] without the prior written consent of the father.
6.That the parties be and are hereby restrained from permitting Mr Nadal to reside in any home in which [the child] is a member without written consent from either parent.
7.That the mother be and is hereby restrained from permitting [the child] to spend time with [Mr Nadal] that is not supervised by an adult other than [Mr Nadal].8.That the mother shall immediately advise the father in the event she becomes aware;
(i)That [Mr Nadal] has been admitted to a psychiatric treatment facility;
(ii)That [Mr Nadal] is using illicit drugs;
(iii)That [Mr Nadal’s] behaviour or presentation has deteriorated.
9.That the parties shall ensure [the child] is punctual in his attendance at school.
10.That in the event [the child] is absent from school for longer than one day, then the parent caring for [the child] shall obtain a medical certificate from a doctor describing his condition, diagnosis, prognosis and treatment and shall provide that certificate to the other parent and to [the child’s] school.
11.That unless otherwise agreed, the parties shall communicate with each other regarding matters relating to [the child] by email, unless in the event of emergency in which case they shall contact the other by mobile telephone on the number provided to the other parent.
12.School holiday time:
(i)Shall commence at 10am;
(ii)Shall conclude at 6pm;
(iii)Shall be calculated from the last day of the school term until and including the day immediately before school resumes;
(iv)Pupil free days are deemed to be school holidays.
13.That the parents shall make arrangements at the child’s school to as follows:
a) That they both receive a copy of all school reports for the said subject child;
b) That both parents receive notification of all school activities that they may desire to attend;
c) That the parents be informed of parent/teacher nights and the school is informed that it is the parents desire to attend such events;
d) In the event of the child being taken from the school for an emergency, remedial or correctional treatment that the parents be informed as soon as is practicable.
14.That in the event of [the child] suffering a medical condition or requiring medical attention while with either parent ;
a) The other parent is to be notified as soon as practicable.
b) That the parent be provided the full details of the practitioner or medical facility upon which the child attends as soon as practicable.
c) That the medical practitioner or medical facility be advised that the parents have access to the child’s medical records and the information contained within them upon request.
15.That each parent shall provide to the other addresses and telephone numbers for the contact of [the child] while [the child] is in their care and control.
16.That each parent refrain from making critical remarks in relation to the other parent in the presence or hearing of [the child] and that each parent do all necessary things to ensure that no third party makes critical comments about the other parent in the presence and or hearing of the child.
17.That the parties are restrained from causing or permitting [the child] to be known by any name, other than [B Mingotti-Papadakis]
18.IT IS NOTED that the mother has agreed to and undertakes to the Court to attend upon a Child Psychologist for the purpose of seeking assistance with the parenting of [the child] and it is NOTED that the ICL has provided the mother with the name and contact details of [E Centre] in this regard.
6.Finally, just as he commenced his oral submissions the father sought leave to amend the orders sought to the extent necessary to seek:
a)that the parents have joint parental responsibility for [the child];
b)that [the child] live with the parents, week about;
c)that at the conclusion of the period of supervised time between [Mr Nadal] and [the child], under the order the father otherwise proposes, the mother thereafter supervise that time.
7.I granted that leave, over the objection of the mother. Neither the father nor the mother sought leave to re-open their cases or to resume cross-examination of a witness as a result of the granting of that leave.
8.The second respondent sought no orders but upon the withdrawal of the application for orders against him, sought an order against the father for his costs.
9.The Independent Children’s Lawyer sought orders in terms of a minute provided before final submissions were made, as follows:
1.That the child [B MINGOTTI-PAPADAKIS] born […] January 2000 shall live with the mother.
2.That [the child] shall spend time with the father as follows;
(i)During school term, each alternate weekend commencing from the conclusion of school Thursday until the commencement of school Monday;
(ii)On Father’s Day in each year from the conclusion of school Friday until the commencement of school Monday in the event Father’s Day falls on a day when the child would otherwise be with the mother, and in the event that Mother’s Day falls on a day when [the child] would otherwise be with the father, then the father’s time with [the child] on that weekend be and is hereby suspended;
(iii)One half of all mid-term New South Wales school holiday periods, for the first half in years ending in an even number and the second half in years ending in an odd number;
(iv)During the Christmas holiday break from the conclusion of school on the last day of term, until 5pm on Christmas Eve, and from noon on the second last Sunday of January until noon on the last Sunday in January;
(v)On the birthday of each of [the child] and the father for a period of six hours as agreed between the parties and in the event the parties do not reach agreement from 1pm on those days in the event they are not school days, and in the event the fathers birthday falls on a school day from the conclusion of school until the commencement of school the next day, or in the event the next day is not a school day until 9am on that day.
(vi)All changeovers which do not occur at school shall occur by the parent who has the care of [the child] delivering [the child] to the residence of the other parent at the commencement of the other parents time with [the child].
3.That pending further Order and on a final basis the mother shall ensure the attendance of the child [C School].
4.That the mother shall have sole parental responsibility for all decisions concerning the long term care, welfare and development of [the child] and shall consult the father with respect to any decision required to be made and in the event of disagreement the mother shall be responsible for the final determination.
5.That the mother be restrained from changing [the child’s] school enrolment from [C School] without the prior written consent of the father.
6.That the parties be and are hereby restrained from permitting [Mr Nadal] to reside in any home in which the child is a member without written consent from either parent.
7.That the mother be and is hereby restrained from permitting [the child] to spend time with [Mr Nadal] that is not supervised by an adult other than [Mr Nadal].
8.That the mother shall immediately advise the father in the event she becomes aware;
(i)That [Mr Nadal] has been admitted to a psychiatric treatment facility;
(ii)That [Mr Nadal] is using illicit drugs;
(iii)That [Mr Nadal’s] behaviour or presentation has deteriorated.
9.That the parties shall ensure [the child] is punctual in his attendance at school.
10.That in the event [the child] is absent from school for longer than one day, then the parent caring for [the child] shall obtain a medical certificate from a doctor describing his condition, diagnosis, prognosis and treatment and shall provide that certificate to the other parent and to [the child’s] school.
11.That unless otherwise agreed, the parties shall communicate with each other regarding matters relating to [the child] by email, unless in the event of emergency in which case they shall contact the other by mobile telephone on the number provided to the other parent.
12.School holiday time:
(i)Shall commence at 10am;
(ii)Shall conclude at 6pm;
(iii)Shall be calculated from the last day of the school term until and including the day immediately before school resumes;
(iv)Pupil free days are deemed to be school holidays.
13.That the parents shall make arrangements at the child’s school to as follows:
a) That they both receive a copy of all school reports for the said subject child;
b) That both parents receive notification of all school activities that they may desire to attend;
c) That the parents be informed of parent/teacher nights and the school is informed that it is the parents desire to attend such events;
d) In the event of the child being taken from the school for an emergency, remedial or correctional treatment that the parents be informed as soon as is practicable.
14.That in the event of [the child] suffering a medical condition or requiring medical attention while with either parent ;
a) The other parent is to be notified as soon as practicable.
b) That the parent be provided the full details of the practitioner or medical facility upon which the child attends as soon as practicable.
c) That the medical practitioner or medical facility be advised that the parents have access to the child’s medical records and the information contained within them upon request.
15.That each parent shall provide to the other addresses and telephone numbers for the contact of [the child] while [the child] is in their care and control.
16.That each parent refrain from making critical remarks in relation to the other parent in the presence or hearing of [the child] and that each parent do all necessary things to ensure that no third party makes critical comments about the other parent in the presence and or hearing of the child.
17.That the parties are restrained from causing or permitting [the child] to be known by any name, other than [B Mingotti-Papadakis]
18.IT IS NOTED that the mother has undertaken to attend upon a Child Psychologist for the purpose of seeking assistance with the parenting of the child and it is NOTED that the ICL has provided the mother with the name and contact details of [E Centre] in this regard.
10.In addition, the ICL sought that the parents equally pay the costs of the ICL which are assessed at $19,031 together with the costs yet to be invoiced for the attendance of Dr D for cross-examination. Thus the ICL sought an order that each of the parents pay $9,515.50 plus one half of Dr D’s final fee. The mother did not oppose that order. The father did not object to quantum but sought time to consider the question of the proportions in which the parties should bear those costs.
Written Evidence
11.The mother relied on the following affidavits:
Affidavit of the mother sworn 21 December 2011 and filed on 22 December 2011;
Affidavit of Ms Nadal sworn 21 December 2011 and filed on 22 December 2011; and
Affidavit of Ms Nadal sworn and filed 29 December 2011;
Affidavit of Mr O sworn and filed 28 December 2011.
Affidavit of Mr S sworn 21 December 2011 and filed on 22 December 2011; and
Affidavit of Ms U sworn 12 December 2011 and filed on 22 December 2011.
12.The father relied[3] on the following Affidavits:
[3] Through his Case Outline the father initially indicated that he would rely on a number of affidavits filed by the mother, including parts of affidavits sworn by her. His application in that regard was not pursued for obvious reasons.
Affidavit of the father sworn 20 December 2011 and filed on 22 December 2011; and
Affidavit of Mr A sworn 20 December 2011 and filed on 22 December 2011.
Expert Evidence
13.The following expert evidence was relied on:
Report of Dr D dated 31 January 2011; and
Addendum to Report of Dr D dated 25 September 2011.
The Hearing
14.The matter was listed for hearing over five days commencing 9 January 2012. The parents are both legal professionals and unfortunately, they acted for themselves, with the father also undertaking his own advocacy. The mother and her son, Mr Nadal were represented by (the same) counsel, directly briefed by the mother.
15.A trial plan was settled between counsel for the ICL and the parties and was largely adhered to. Submissions concluded on 13 January 2012 and judgment was reserved.
16.One of the issues for determination in these proceedings was which high school the child would attend in 2012. The school year was to commence on or about 31 January 2012 and the child was due to commence Year 7. The parties were not able to reach an agreement about what should happen if judgment was not given in time. I considered it to be in the child’s best interests to resolve that issue, at least in the short term. For reasons given at the conclusion of final submissions on 13 January 2012, I made the following interim orders:
1.That the mother sign all documents and do all things necessary to cause the child [B Mingotti-Papadakis] born […] January 2000 to be entitled to attend and to attend at [C School at Suburb AA] pending further order of the Court.
2.That in the event that the father notifies the mother in writing within 7 days from the date of this Order that he is not able or not willing to facilitate Order 1, pending further order, Orders are made in terms of paragraphs 1, 2(i), 2(iii), 2(v) and 2(vi) and, insofar only as it relates to [the child’s] education, paragraph 4 of the document titled Independent Children's Lawyer Proposed Minute of Orders as set out hereunder:
“1.That the child [B MINGOTTI-PAPADAKIS] born […] January 2000 shall live with the mother.
2. That [the child] shall spend time with the father as follows;
i.During school term, each alternate weekend commencing from the conclusion of school Thursday until the commencement of school Monday;
iii.One half of all mid-term New South Wales school holiday periods, for the first half in years ending in an even number and the second half in years ending in an odd number;
v.On the birthday of each of [the child] and the father for a period of six hours as agreed between the parties and in the event the parties do not reach agreement from 1pm on those days in the event they are not school days, and in the event the fathers birthday falls on a school day from the conclusion of school until the commencement of school the next day, or in the event the next day is not a school day until 9am on that day.
vi. All changeovers which do not occur at school shall occur by the parent who has the care of [the child] delivering [the child] to the residence of the other parent at the commencement of the other parents time with [the child].
4.That the mother shall have sole parental responsibility for all decisions concerning the long term care, welfare and development of [the child] and shall consult the father with respect to any decision required to be made and in the event of disagreement the mother shall be responsible for the final determination.
3.In the event that the notification provided for in Order 2 is given, by way of implementation of the changed living arrangements and by way of variation of the Orders of 8 September 2009, the father is to cause, if the child were not otherwise to be with the mother at 10:00 am on Saturday, 28 January 2012, the child to be delivered to the mother at that date and time.
4.Otherwise judgment is reserved.
Short History
17.As at the date of hearing the mother was 50 years of age and the father was 46. The parties commenced their relationship in 1991 and first separated in about January 2001. After some attempts at reconciliation, they separated on a final basis in 2002.
The Child
18.There is one child of the parties’ relationship: the child B Mingoti-Papadakis who was born in January 2000 and as at the date of the hearing was 12 years of age.
19.The mother has two adult children from a previous marriage, namely, Ms Nadal and Mr Nadal (the Second Respondent) who are 24 years of age and 22 years of age, respectively.
20.The father has two adult children from a previous marriage, namely, Ms V and Mr W who are 22 years of age and 21 years of age, respectively.
Background Facts
The parties agreed that the chronology prepared by the ICL with certain additions and exclusions would represent the background facts. Doing the best I can with the handwritten interlineations, that chronology is as follows:
Date Event Source 1965 Father born (46 years) FA Para 18 1961 Mother born (50 years) FA Para 19 1995 The parties commence a relationship.
Mother is living in a women’s refuge when the parties meet.
The parties move in together into a ‘granny flat’ owned by the father at Suburb L with the mother’s two children and the father’s two children from previous relationships.FA Para 20
FA Para 35
FA Para 36
FA Para 411997 Mother alleges father punched her in the chest which was reported to the police but the mother subsequently withdrew. MA Para 20 1998 Parties commence residing at N St Suburb R property (“the N St property”) MA Para 54 1998 Father’s ex-wife makes allegations about the mother’s children sexually interfering with the father’s children. FA Para 66 07.01.00 The child born (12 years) FA Para 21 September 2000 Mother alleges father hit her with the child’s high chair. Mother goes to live with her brother and his family for four days. MA Para 26 End 2002 Parties separate.
Mother changes the locks on the house.FA
Paras 20/702003 Father commences relationship with Ms A. FA Para 71 December
2004Mother moves to T St Suburb R with the children (“the T St property”). MA Para 54 2005 the child commences primary school. FA Para 82 November 2005 Mother purchases the T St property for her children. MA Para 54 28 May 2006 Mother travels to Italy to visit family.
The child lives with father during this 6 week period.MA Para 47 5 July 2006 Mother returns from Italy.
The child resumes living with mother, spends time with father each alternate weekend and half school holidays.MA Para 48 2007 Shared parenting arrangement between the parties graduates to father spending week about time with the child. FA Para 93
MA Para 49June
2007The child travels to Italy and Greece with the mother and her children for 7 weeks. FA Para 88
MA Para 50Between June-August 2007 Mr Nadal returns to the mother’s home at Suburb R from Italy as mother would not allow him to go out and attend nightclubs on his own.
Police called to mother’s house in presence of the child and Mr Nadal
Mr Nadal was arrested by police for theft while the mother was overseasMA Para 50 August
2007The child returns from Italy with the mother and only Ms Nadal. Mr Nadal comes home earlier and father alleges he was no longer welcome to live in the home of the mother and homeless.
Father alleges that the child told him Mr Nadal was sent home because he was hitting the mother and the child.
The child stays with father for a 3 week period after his return from Italy.FA Para 89
FA Para 103
MA Para 51
23 August 2007 Father returns the child to mother. MA Para 53 Nov
2007Mother acts for the father’s fiance’s former business partner in proceedings where the fiancé was a party to the proceedings. FA Para 91 February
2008Mother asks father to allow the child to live with him due to the onset of Mr Nadal’s (mental) illness and risk to the child.
The child stays with mother occasionally for overnight periods, sometimes with Mr Nadal present with no incident.MA Para 70
MA Para 71
February 2008 Mother has Mr Nadal arrested due to his uncontrollable behaviour.
The child moves in with father full-time at the request of the mother due to Mr Nadal’s behaviour.
FA Para 94
FA Para 94
August
2008Mother informs father that Mr Nadal has moved to New Zealand.
Father reluctant to return the child to mother.MA Para 76 December
2008Mother collects the child from school and does not return him to father. (Date typo in mother’s affidavit – should read 2008 at this paragraph)) MA Para 85 Christmas 2008 The child spends part of the Christmas holiday period at the end of 2008 with the mother and part with the father. FA Para 95 Boxing Day 2008 The child asks to go on holidays with the father. Mother allows this to happen. MA Para 95 15 January 2009 Father returns the child to mother’s home for Christmas holidays. MA Para 96 After
15 January 2009The child spends time at the father’s residence and at some point father refuses to return him to the mother. MA Para 97 28 January 2009 Police are called to the child’s school after mother and father turn up at the school to pick him up. FA Para
241First day school year 2009 Mother informs father she will be picking the child up. Father refuses to allow this.
Mother turns up at school to pick up the child and altercation between parties takes place.
Mother concedes that the child return home with father.MA Para 100
MA Paras
101-109Start school year 2009 Police are called to the child’s primary school to allow the father to return home with him on two occasions.
School notifies DOCS of these incidents and father attends on a DOCS office.
FA
Paras 143 – 147FA Para 147
Mid February
2009Mother attends the child’s school.
Police are called. Again mother concedes that the child should go with father.MA Para 118-120 2 March 2009 Police are called to the child’s school after mother and father again turn up at the school to pick him up. FA Para
25017 March 2009 Parties attend mediation without resolution. MA Para 121 18 March 2009 Mother attends the child’s school and leaves with child. The child lives with mother until 28 July 2009.
Mother does not allow the child to spend time with his father during this period.MA Para 123
MA Para 126
19 March 2009 Mother informs the father via SMS the child will be staying with her.
Father loses telephone contact with the child until August 2009FA Para 141
FA Para 149
Easter 2009
to August 2009Mr Nadal returns to Australia from New Zealand and lives with mother and the child. MA Para 132 May 2009 Father denied access to child on occasion of father’s birthday. FA Para 154 8 July 2009 Father called urgently to a meeting with the child’s school’s principal and is told the child is failing academically, has many absences or is often late for school, is not groomed for school and is dishevelled, unkempt, no lunch and holes in his uniform, often picked up and dropped off by Mr Nadal. FA 22.12.11
Paras 156/728 July 2009 Father takes the child from school and does not return him to mother. MA Para
13429 July 2009 Mother’s daughter Ms Nadal attends the child’s school to take him home and is stopped by the father. MA Paras
137-14030 July 2009 The child leaves school with Ms Nadal.
Father attends mother’s offices in Suburb Z.
Police are called. The child goes home with mother.MA Paras
141-1486 August 2009 The child admitted to Emergency Department of a hospital – diagnosed with appendicitis and operated on. Mother and Ms Nadal stay with the child during his time in hospital.
Father visits the child on several occasions.MA Para
1338 September 2009 Interim consent orders made in this matter. MA Para
15527 December 2009 Mother collects the child from father’s residence. Alleges that the child does not want to spend time with father. MA Para
1568 January 2010 Mother collects the child from father’s residence. Spends 3 weeks with mother for the Christmas holidays.
Mother alleges the child tells her that he ran away from the father whilst he was in the father’s care.MA Para
15724 March 2010 The child runs away from school. MA Paras
159-16025 March 2010 Mother calls the child’s school to understand what happened on the previous day.
Mother picks the child up from school.MA Paras
161-163
MA Paras
164-16516 June 2011 The child receives an offer to be enrolled at H School for 2012. FA Para 263 10 August 2010 Father relocates from his home at Suburb F to I Street, Suburb G (“the Suburb G property”).
Mother alleges this property is run as a hostel.MA Para
174MA Para
178End 2011 the child completes Year 6 at K School. FA 22.12.11
Para 2416 December 2011 The child’s last day at school. Mother alleges father doesn’t allow the child to attend an after school barbecue organised by one of the mothers at the school and is made to attend after school care instead. MA Para
214-219
Credibility
Of particular concern in these proceedings is the fact that the orders sought by the parties are inconsistent with their evidence. Each of the parties makes very serious allegations against the other but nevertheless, each proposes that the child live unsupervised with the other parent on weekends and for block periods of school holidays.
The necessary inference is that each of the parties has either exaggerated their concerns about the parenting capacity of the other parent or, to the extent that their evidence is not exaggerated, they do not consider that the incidents raised or the behaviour described seriously detract from the other parent’s parenting capacity.
The mother was a poor witness. The responses given to the father’s cross-examination were often unresponsive and were usually truculent. It did not help that the father’s questions were often pedantic, not based on accepted propositions and sometimes illogical. Indeed, save to reinforce why they each initially sought sole parental responsibility, it certainly did not help that the father personally cross-examined the mother. With respect to both parties, this was a classic demonstration of why they should not have been self represented and in particular, why the father should not have been his own advocate. That said, the mother’s responses to learned counsel for the ICL were often also unresponsive. Oddly, the mother denied that she had drawn or had any hand in drawing the affidavits of her supporting witnesses and swore that each of them drew their own affidavits. It beggars belief that those witnesses knew, unaided, what issues to address in their affidavits. How, for example, did the mother’s fiancé know to address in his affidavit, the question of him supervising occasions when Mr Nadal might spend time with the child? I would have thought that once the mother made the unfortunate decision to act for herself she was obliged to settle the affidavits of her witnesses or to instruct counsel to do so.
Albeit not in fulsome terms, the mother was able to make concessions in favour of the father. She ultimately agreed that the child’s school performance had improved over the period when he lived during most of the school week with his father. She conceded the importance of the father in the child’s life. She conceded that the child loves his father.
Ms S was not successfully challenged in his evidence. As with the mother’s evidence on the issue, I cannot accept his evidence that he drew his own affidavit entirely unaided by the mother. Following an objection by the father, the mother’s counsel was given leave to try and repair the following statement by Mr S: “I am aware of [Mr Nadal’s] mental health issues.” As often happens when leave is sought in such instances, the inadmissible statement could not be repaired. It transpired that Mr S meant to say that he knew Mr Nadal had mental health issues, whatever that might mean. On the other hand he showed himself to be independent of the mother to some extent. For example, he had a more benign view of the events of 27 December 2011 (when he and the mother attended the father’s units to deliver the child) than either the mother or the father. In that way he might be seen as a more objective reporter than either of the parents.
Ms Nadal was a poor witness. Her first affidavit contains remarkable detail, including quoted conversations from her childhood, many years ago. The evidence is that she did not have the assistance of any records or notes save for records of emails and telephone calls made between her and the father. Unfortunately, Ms Nadal has been placed in or has taken up the role of advocate for her mother. Her explanation for the similarities between the wording of her affidavit and that of her boyfriend, Mr O is laughable. Ms Nadal was seen to dissemble when pressed in relation to the child having a Facebook account and that account being terminated.
Mr O was a poor witness. His evidence and that of Ms Nadal was that they did not discuss the evidence contained in the affidavits they respectively swore on 28 and 29 December 2011. Among other things, the affidavits both deal with the events they said they observed on 26 December 2011. It was the evidence of Mr O that on 28 December 2011 he used a laptop computer at the mother’s house to create the body of his affidavit. He said he was not told what to write by the mother or Ms Nadal and said that when he tried to talk to each of them about his evidence, they each stopped him doing so. He said that Ms Nadal came into the room he was using at the mother’s home while preparing his affidavit for about a minute and then she left. It is his evidence that, unaided, he found a document on the laptop which, from his description was a blank affidavit pro forma. He said that the formal parts of the first and second pages of his affidavit were already on the document but had not been filled in. He said he drafted the text of the affidavit, starting under the heading “Part D Evidence” with:
“I, [Mr O] of [Suburb R] in the State of New South Wales, say on oath:
Ms Nadal gave evidence that she completed the front page of the affidavit of Mr O but no more. Mr O has worked as a tradesman and has used computers in Years 9 and 10 at school and in a TAFE course. He was aware of word-processing software called “words or something like that”. He could not recall the font type and size he selected for the text of the affidavit but said that he did select them. I took from his evidence that he did not simply accept the default font for the document he opened.
Ms Nadal and Mr O both swore that, as to the evidence component, their affidavits were prepared independently. They each said that they were not influenced by anyone else as to what to say and they and the mother all said that she did not draw their affidavits. I am satisfied that the two affidavits were not prepared independently. I have reached that conclusion because:
· The initial words of the text of both affidavits are in a similar format. Mr O said he knew to commence the text of his affidavit in the style quoted above because when hanging around premises of the mother’s place of business in the past he has seen affidavits and how they usually commence.
· The text of the affidavits of Ms Nadal and Mr O appears to be in the same font style and size. The paragraphs appear to all be formatted in an identical way, save for the fact that in the affidavit of Ms Nadal paragraphs 26 and 27 are not right justified.
· The evidence is that Ms Nadal and Mr O were both interviewed by the police on 27 December 2011 about the events of Boxing Day but were not interviewed together and were not given a copy of the resultant reports. Therefore in preparing their affidavits, neither of them was able to refer to a written record of the reports they separately gave to the police. The only reference from either of them to any discussion about their evidence was that Mr O said that while driving on 26 December, he overheard Ms Nadal telling the mother by telephone about the events of that day and he said that he interrupted to correct her estimate of a distance of 5 metres to his estimate of 6-8 metres.
· In her affidavit Ms Nadal deposed about her mother at paragraph 4, that she: “had a migrane headache on boxing day morning.” In his affidavit Mr O deposed about the mother at paragraph 3 that she: “had a migrane on boxing day morning”. They both made the same spelling mistake. They were asked to spell “migraine” in cross-examination and both ultimately did so correctly.
· Ms Nadal deposed at paragraph 7: “[Mr O] parked the car outside [the father’s] place on the same side of the street. and about 6-8 metres away from the front door of [the father’s] place.” Mr O deposed at paragraph 4: “I parked the car out the front of the premises on the same side of the street as the premises and the car was about 6-8 metres away from the front door.”
· Ms Nadal deposed at paragraph 11: “I had a clear view of the front door of [the father’s] place....”. Mr O deposed at paragraph 9: “I had a clear view of the front door of the premises ...”
· Ms Nadal deposed at paragraph 13 that after the father pushed the child he: “… flew forward through the security doorway …”. Mr O deposed at paragraph 12 that after the father shoved the child he: “.. flew forward through the security doorway...”
Individually, none of these examples is conclusive of the proposition that the contents of the two affidavits were not prepared independently but taken together, I am satisfied that was the case. It is extremely disappointing and worrying that the mother’s case in this regard was presented in this way. Of course it is not possible to know whether there was an outside influence on the preparation of both or only one of the affidavits and if one, which one. Similarly it is not possible to know who the outside influence was.
Mr Nadal was not required for cross-examination.
The father gave his evidence very carefully and as a general proposition, was not successfully challenged. In cross-examination the father initially said that he believed that Ms Nadal had sexually abused his older children. However in June 2010 Dr D recorded that the father “was never sure about this, whether it was exploratory play or something that was misinterpreted”. When faced with what Dr D recorded, at first the father said words to the effect that he “might have been influenced or impacted by the acrimony of the past two years” and then he resiled from the earlier answer in cross-examination, saying that he did not think Ms Nadal abused his children.
Although generally he expressed confidence in the correctness of his conduct and positions, the father made some concessions against interest. For example, the father was asked about the period between March and August 2009 during which time he did not see the child. He said that the mother did not allow him to see the child unless he undertook to return the child to her after each visit. He said that he could not agree to that because he thought that the child was in danger in the mother’s household because of the risk to him from Mr Nadal. It was put to the father that the risk to the child cannot have been lessened by the fact that he did not take the boy for the periods that the mother proposed. The father responded to the effect, “I may have made a bad judgment, a mistake”.
He was asked about the disciplinary approach he had taken with Mr Nadal and said that he required Mr Nadal to stand in a corner; to write out lines; and that he raised his voice to a commanding tone as he had overheard teachers do at K School. I am not sure that the father reflected on that evidence as a concession against interest.
Like the mother in relation to him, when pressed, the father was able to make some concessions in favour of the mother.
Ms A was a good witness. Only two aspects of her testimony were challenged. In cross-examination she described herself as an acquaintance of the father’s first wife while in her affidavit she said “I have a great relationship with [Ms J]”. She was asked whether she had read the Report of Dr D prior to preparing her affidavit and said she was unsure and then that she read the “part about her”. She later revealed that she had read the recommendations. Neither of those issues was of any moment. Otherwise her evidence was largely unchallenged and without her answers being obviously contrived, she generally corroborated the father’s testimony.
Dr D gave evidence as an expert and her credit was not in issue.
The Expert Evidence
The Single Expert
39.Dr D is Conjoint Associate Professor at the School of Psychiatry at an Australian university. She also conducts a private practice as a Consultant Forensic, Child and Family Psychiatrist. Dr D holds the following qualifications:
Bachelor of Medicine, Bachelor of Surgery, (Australia).
Diploma in Psychological Medicine (with Distinction) (NZ).
Member of RANZCP Faculty of Child and Adolescent Psychiatry.
Fellow of the Royal Australian and New Zealand College of Psychiatrists.
Doctor of Philosophy (Australia).
Dr D has held senior professional positions in medical and educational roles.
Dr D has considerable experience in the area of family and marital relationships and assessments for Family Law Court proceedings. She has many years experience as an expert witness and has presented and published widely.
Dr D conducted interviews with the family on 29 June 2010 at her rooms. She interviewed the father, the mother, Ms Nadal and the child. She conducted further interviews on 10 December 2010 with the father, Ms A, her daughter Ms P and the child. On 10 August 2011, Dr D interviewed Mr Nadal for the purposes of conducting a mental health assessment. On that occasion, Mr D attended with Ms Nadal.
Dr D reported that in her observation of the child with his maternal family, he was relaxed and chatted happily. It was obvious to Dr D that the child and Ms Nadal have an extremely warm and close relationship. She said there was a lot of good humour and a very easy atmosphere. In her observation of the child with the father, Ms A and Ms P, Dr D said that the child was quiet while his father spoke and did not volunteer any comments or add information. He seemed disengaged from the group and there was little interaction between him and Ms A or Ms P.
The child became tearful during his interviews with Dr D, particularly when discussing how he misses his mother and Mr Nadal. It was clear to Dr D that the child wants to live with his mother and was distressed about the current situation. This was the case during both sets of interviews.
In relation to which high school the child is to attend, Dr D said that the child clearly expressed a desire to go to C School. She said it is important he attends a school he is interested in attending. Dr D said that there would have to be a good reason to dislocate the child from his social network. If the child were not to attend C School, Dr D said that he is likely to be very angry with his father. Dr D did not think that the child’s wish to attend C School had been contaminated by the mother’s “coaching”. She said the child is too old and too mature to be coached in the same way that a younger child may be. She said the child’s desire to stay with his network of peers is very normal for a child of his age. She said the child might only need one special friend to attend C School with him for the child to feel comfortable with the transition. Dr D did not feel that Ms P’s attendance at H School would have the same impact of making the child’s transition to that school comfortable because he does not have a strong identification with Ms P. Dr D was not sure that it would not merely be more convenient for the father to have the child and Ms P attend the same school and said that the father’s preference seems to be more about what he wants because the choice is between two reasonably good, religious schools.
Dr D agreed that the father’s parenting style is rigid and strict. In response to the iPhone incident, Dr D thought this demonstrated the father’s rigidity and his strong emphasis on his own perspective rather than being able to tune into the child and see the situation from the child’s perspective. She said that reneging on his agreement to return the phone was likely to cause considerable hostility.
Dr D agreed that the child’s school performance improved after he went to live with the father. Dr D thought the father had been able to provide structure and stability for him and that has assisted him greatly in his school performance. However, she said that the father’s ability to meet the child’s emotional needs is limited. Notwithstanding the structure and stability the father has provided, it has not translated into a wish for the child to live with the father.
The father asked Dr D about her opinion on what he described as the mother’s “active engagement” in discussions with the child about his school. He asked about whether this would disadvantage him, in that he has “been disciplined enough” not engaged in those conversations. Dr D felt that it would be almost impossible not to have conversations about the future and to plan and be excited. She said it would be almost detrimental to try to veto discussions about the future. It would not be appropriate to keep him in a sort of mental limbo.
Dr D recommended that the child live primarily with his mother and spend alternate weekends with his father from Friday after school until Monday back at school and during school holidays, one week in each of the shorter holidays and two weeks in the long holidays. In cross-examination, Dr D said that it is not crucial whether the child spends alternate weekends with his father from Thursday after school or from Friday after school. She also thought there may be some benefit in the child spending time with the father after school and then have the father drop the child at the mother’s home after she had finished work, given the father’s superior ability to supervise homework. She said this was purely looking at what would be in the child’s best interests rather than what would be practical for the parents.
Mr Nadal
Dr D interviewed Mr Nadal on 10 August 2011. Ms Nadal was in attendance at the interview. Dr D then prepared a report which is dated 25 September 2011.
Dr D reported that Mr Nadal was quite cooperative and his thought processes were coherent and organised. She said he presented as affable but perhaps with a slightly elevated affect. Mr Nadal’s current diagnosis is substance-induced psychotic disorder with onset during intoxication and schizoaffective disorder (in remission).
Mr Nadal has suffered numerous episodes of acute psychotic disorder associated with drug use. It was reported that Mr Nadal is currently on a voluntary treatment program. He receives treatment from Dr GG and Ms BB. He has Flupentixol injections fortnightly (antipsychotic medication) and Lithium and Epilim tablets daily (mood stabiliser medication). Dr GG believes that Mr Nadal is improving and Mr Nadal feels encouraged by that.
Mr Nadal spoke of his relationship with the father. He described the father as abusive. He would make Mr Nadal stand in the corner for hours and would hit him and verbally abuse him. Mr Nadal was called “useless and hopeless” and told “that’s why your father doesn’t want you; and that’s why I have to put up with you”. Mr Nadal reported that he “copped the blame for anything that went wrong”. Dr D reported that Mr Nadal recalled the father hitting him on the back of the head. Mr Nadal “went fuzzy” and his nose was bleeding. Mr Nadal did not believe the father ever treated the child this way. Mr Nadal recalled that the father’s other children were not punished in the same way he was. He described the father as being cruel to him.
Mr Nadal told Dr D he had been feeling well for about seven months. He is no longer paranoid or irrational and does not hear voices. Ms Nadal agreed that Mr Nadal was functioning well at the moment. She was very proud of him.
Dr D reported that Mr Nadal is drug free, living independently and is engaged in treatment programs. He presented with little evidence of psychosis. Dr D said Mr Nadal seemed to laugh a lot and that this was mildly inappropriate; that could indicate a subtle disturbance of affect.
Dr D assessed Mr Nadal’s condition to be well controlled and said that there would be little risk of harm to the child in having some contact with him. She said Mr Nadal has begun to develop better insight into the nature of his psychiatric disturbance. He is cooperative with treatment and has a good level of function with no overt signs of psychosis.
Dr D said Mr Nadal is a warm, affectionate and engaging character who has strong bonds with his siblings. In her view, it would be preferable that some supervised contact between the child and Mr Nadal be reinstated but that it proceed cautiously and on the condition that Mr Nadal continues to cooperate with his treatment regime. She recommended that they have supervised contact at the home of the mother and with another family member present.
In cross-examination, Dr D said that Mr Nadal’s condition seemed to be improving. He is cooperating with his treatment and is not using drugs which she said is promising. Dr D said that with young people who have used drugs, it is hard to tell whether those issues are chiefly drug related or whether there is a fundamental psychotic disturbance that has been aggravated by drug use. If the latter is the case, it is much more likely that there will be recurring issues. The father asked about what impact being homeless would have had on Mr Nadal. Dr D said it is a circular dynamic. He has been homeless because of his mental illness and mental illness is strongly aggravated by homelessness. The father put his proposal whereby Mr Nadal submit a urine analysis before he is to spend time with the child to Dr D. She thought that such a proposition could create significant conflict and would need to be canvassed with his treatment team. It would not be a useful requirement if Mr Nadal’s reaction to it would be hostile. She said it is very encouraging that the mother has been responsible in the past in protecting the child, for example, in banning Mr Nadal from the home. There is also an issue about who would meet the cost of the tests proposed by the father.
Dr D was asked whether Ms Nadal underplayed the seriousness of Mr Nadal’s problems. Dr D thought Ms Nadal was quite optimistic about Mr Nadal’s current status. She said this is not because Ms Nadal is trying to underplay the issues, rather, this sort of optimism and hope is typical and inevitable in families. Dr D did not think this ruled her out as a suitable supervisor.
Dr D said that Mr Nadal’s drug use and non-compliance with treatment in the past are likely to be aspects of his illness that relate to his development. She said he clearly grew up with problems and described the father as having been very abusive toward him. In her opinion, Mr Nadal was obviously very unhappy growing up and a lot of family issues have contributed to Mr Nadal’s illness. She said both the mother and the father’s behaviour could have been contributing factors.
I will refer to Dr D’s evidence further below.
Submissions
The case outline documents provided on behalf of the ICL, the mother and the father contained submissions.
Ms Messner for the ICL addressed the Court first. The parenting arrangements proposed by the ICL for the child were submitted to be in his best interest in part because they allow for the child to enjoy some leisure time with the father. It was submitted that having the father as the primary disciplinarian has meant a poor outcome for the child’s relationship with him.
64.In relation to the nature of his relationship with each parent, the ICL notes Dr D’s opinion that the child is primarily attached to his mother and has strong relationships with Mr Nadal and Ms Nadal. The father is not the child’s primary attachment figure, although they have a close relationship.
65.The ICL noted the views of Dr D that the child is mature for his age and has indicated quite clearly that the school he wishes to attend is C School.
66.It was submitted that both parents’ behaviour demonstrate their lack of insight and neither parent has demonstrated in any concrete way their respect for the child’s relationship with the other parent. Each has been stubborn and dogmatic in agitating their respective positions and this has led to their highly conflicted relationship.
67.It was submitted by counsel for the ICL that it is not in the child’s best interest for his parents to have equal shared parental responsibility because it is not reasonably practicable. His parents have not been cooperative in their parenting of the child. It was submitted that the mother has an aggressive style of communication while the father is stubborn and inflexible. The combination of these styles is a volatile mix and cannot continue in the child’s best interests. The mother and the father’s behaviour in regard to the iPhone incident was submitted to demonstrate their lack of concord, inability to communicate and their respective propensity to see situations as opportunities to gain a forensic and legal advantage.
68.Counsel for the ICL made submissions in line with Dr D’s recommendation that the mother attend upon a counsellor to assist her with any issues with her parenting style and with adjusting to having the child primarily in her care during the school week. The mother agreed to give that undertaking. It was submitted that an undertaking given by the mother will be powerful given she is an officer of the court.
69.In regard to how the child and Mr Nadal should spend time together, it was submitted for the ICL that although Mr Nadal is being appropriately managed currently, there is a risk that he could suffer psychotic episodes in future and therefore contact should be supervised in keeping with the recommendations of Dr D. It was submitted that the mother’s actions in 2008 in removing the child from her household were extremely appropriate. The father’s proposal that he supervise the contact between Mr Nadal and the child was submitted to be entirely unrealistic and unworkable.
70.Counsel for the ICL submitted that the mother’s assertion that she represented a former client of the father and the former business partner of the father’s partner because she can separate her personal and professional life was disingenuous. It was submitted that the mother would have known this would be a source of conflict with the child’s father and her decisions demonstrate poor judgment.
71.In addressing what effect any change in circumstances would have on the child, submissions were made for the ICL that if the child were to primarily live with the mother, this would clearly cause a loss of time between the child and his father. The child will be removed from the structured regime that has been implemented by his father on school days which could have an impact on the child’s school results. In addressing this, the ICL submitted that counselling could assist the mother in dealing with whatever deficiencies there may be in her parenting.
72.Counsel for the ICL submitted that it is not feasible that Mr O and Mr S drafted their affidavits without assistance from any person, despite that being their evidence. It was further submitted that some collaboration must have occurred in the preparation of the affidavits of Ms Nadal and Mr O, given their remarkable similarities. Accordingly, weight should not be placed on the evidence of those witnesses.
73.In concluding, counsel for the ICL submitted that the child needs closure, he is now 12 years of age and he will soon be no longer a child. He is heading to his adolescence and there are difficulties associated with that for all children.
74.The mother’s counsel generally supported the submissions made on behalf of the child.
75.The father made submissions about the importance of understanding what has fuelled the acrimony between the parties and led to a breakdown in their ability to co-parent. The primary source of conflict, he submitted, was the concern he had for the safety of the child in the presence of Mr Nadal and the mother’s refusal to provide any relevant information regarding Mr Nadal’s mental health condition. The father also said that the commercial litigation the mother involved herself in became a catalyst to the acrimony. The father said that this catalyst to the acrimony no longer exists. He then referred to a time when the mother thought a week about parenting arrangement would be appropriate. The relevance of this statement is unclear, however, the father seemed to suggest that that signified hope of cooperative parenting in future.
76.The father submitted that it has taken the involvement of Dr D as single expert and the preparation of an addendum report to ultimately justify his concerns about Mr Nadal. He made a submission that, because the expert confirmed there are risks involving drug use and psychosis, the issue can no longer be “swept under the carpet”, “ignored” and “kept in the mother’s domain, secret from the father”. The father submitted that Mr Nadal’s condition has not been controlled for almost the entire period of the litigation. He went on to read through Dr D’s recommendations that contact should be supervised and should only occur under conditions where Mr Nadal is compliant with his treatment. That position is agreed between the parties.
77.The father made submissions about the mother’s credit and that of her witnesses. He said that the similarity in the affidavits of Mr O and Ms Nadal suggested collusion and their evidence should be rejected. He said their assertions that their affidavits were prepared independently were preposterous and reflect adversely on their credibility. Similarly, the father submitted that it is it is unbelievable that Mr S could have prepared his affidavit on his own and he should not be treated as a witness of truth. It is unbelievable that the mother would allow a lay person with no knowledge of the rules of evidence to provide such important documents. In his submission, this destroys the mother’s credit and the Court should draw adverse inferences from this. The father submitted that the Court should draw adverse inferences from the mother failing to call witnesses who were present or who had knowledge of the alleged facts she refers to, including her allegation that the father threw a baby chair at her.
78.It was submitted by the father that the Court had the opportunity to assess the mother’s demeanour toward him. She was hostile toward him, spoke over him and cut him off or would not answer the question.
79.The father made a submission about the mother and Ms Nadal’s discussions of C School with the child. The father said this demonstrates a history of not complying with orders. He submitted that, even though he had the opportunity to commence contravention applications, he did not do so. I understood this submission to relate to the father’s alleged superior ability to comply with court orders and to maintain focus on the child’s best interest by limiting litigious action.
80.It was submitted that the mother could not get the child to school on time, in the correct uniform and was unable to support him in his academic achievements during the period when the father refused to see the child. The father submitted that the child was absent from school on too many occasions while in the mother’s weekday care. The father read through the evidence about the child going home from school with the father and refusing to go home with the mother. He submitted that the reason the school authorities felt they could do something about that situation was because they formed the view that in circumstances where parental responsibility was shared, they could contact either parent. The father submitted that if something “went wrong” at C School, the school would not be able to involve the father if the mother had sole parental responsibility. In the father’s submission, should this be the situation the mother would have a mechanism by which she could command the school not to involve the father and the child would be disadvantaged. He said that the mother would not involve the father of her own accord because she is stubborn. The father then conceded that he had also been described as stubborn.
81.In his submissions, the father focused on the child’s academic performance while in his care. It was submitted that if the child does not live primarily with the father, he will not have the benefit of all the things the father has been able to contribute to his performance. The child has missed only one day of school in three years. The father described a situation where he is excluded from the child’s schooling as a “fatal mistake”. It was further submitted that, under the orders proposed by the mother, the child will also suffer the loss of his attachment with Ms P and Ms A.
The Legislation
82.Parenting proceedings are determined on the basis of s 60CA of the Family Law Act1975 (Cth) “(the Act”). It provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
83.The task of identifying appropriate parenting orders starts with parental responsibility.
84.Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. Depending on whether an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider orders for equal time or substantial and significant time.
85.Findings are made by reference to what is in the child’s best interests. The Act specifies in s 60CC the matters that are relevant to the determination of what is in a child’s best interests.
86.Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
87.Turning to the matters in s 60CC as they relate to these proceedings:
Primary Considerations:
(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents
88.The court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents but depending upon factual circumstances, the present relationship may also be relevant (McCall & Clark (2009) FLC 93-405).
89.A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child (Mazorski & Albright (2007) 37 Fam LR 518).
90.Notwithstanding the detail of their evidence and that on which they each rely, it follows from the respective applications of the parents that they each consider that the other has and should have a meaningful relationship with the child. During cross-examination each of the parents was able to identify ways in which the other parent is important to the child.
91.The background facts suggest that the child has had a meaningful relationship with each of his parents and that such a relationship should be available in the future. Each of the parties proposes that the other play a significant role in the boy’s life in the future.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
92. ‘Abuse’ and ‘family violence’ are defined terms.
93. Section 4 of the Act includes the following definitions:
"abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
94.Although in the context of sexual abuse, in Leighton & Carey [2010] FamCAFC 94 the Full Court discussed the principles relevant to findings about abuse in the following terms:
Principles relevant to findings of sexual abuse
28.In considering this appeal it is important we refer to the principles relevant to a finding of sexual abuse. In B and B (1993) FLC 92-357, the Full Court reviewed the authorities at length and said at 79,777:
In B and B (1988) FLC 91-957, Baker and Maxwell JJ (with whom Nicholson CJ agreed on this point) considered the role of trial Judges in the Family Court when determining custody and access cases, with particular reference to those cases in which allegations of sexual abuse had been made. The appropriate law to be applied was as set out in the following passage which appears at pages 76,923-76,924:-
‘The Family Court is a civil court in which trial Judges are required to hear and determine cases in the course of which evidence of the parties and their witnesses must be analysed and findings made based upon the civil standard of proof, that is to say, on the balance of probabilities.
It is not appropriate for Judges of the Family Court to conduct cases in which allegations of child sexual abuse have been made as criminal trials which seek to establish the guilt or innocence of one of the parties in relation to allegations of sexual abuse with the consequential result being that if the allegation be proved, access will be suspended whereas if the allegation be not proved then access will be ordered.
In the course of the hearing of a custody or access application, the court may make one of the following findings in relation to an allegation of child abuse:
(a)that the allegation is proved; or
(b)that the allegation is not proved; or
(c)there is insufficient evidence to determine either (a) or (b).
Any such finding, however, may not necessarily be the determinant factor in the ultimate decision. …’ …
29. In M v M (1988) 166 CLR 69 the High Court said at 76:
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. …
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. …
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. (footnotes omitted)
95.As to the standard of proof, the Evidence Act1995 (Cth) now incorporates the effect of Briginshaw in s 140 which provides:
Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
96.It is alleged that the father assaulted the mother and her children, Ms Nadal and Mr Nadal. There are also concerns for the child’s safety with Mr Nadal.
Alleged Abuse by the Father of Ms Nadal and Mr Nadal
97.It is alleged that the father assaulted Mr Nadal when the parents lived together and that he otherwise mistreated Mr Nadal and Ms Nadal. Ms Nadal gave evidence that when he drove her and Mr Nadal to school over many months, on each occasion and throughout most of the journey the father struck Mr Nadal on his head and called the assaults “reminders”. She said the father would take some time toward the end of the car trip to calm them down so that they would not appear to be upset upon arriving at school. She also alleged the father called Mr Nadal “a black piece of shit”. The father strongly denied those allegations. Ms Nadal explained that she did not initially tell anyone about the abuse because she was scared and the father threatened to hit their mother if they told anyone. She said that one day the mother was brushing Mr Nadal’s hair and he whimpered and pulled away. It was then that she and Mr Nadal told their mother about what had been happening. There is no reference to those allegations in Mr Nadal’s affidavit. However, Mr Nadal told Dr D that the father was very heavy handed with discipline, that he would slap him and grab him by the hair. He said this occurred from the time Mr Nadal was five or six years of age. Mr Nadal recalled that the father gave him and Ms Nadal “reminders” which was a “hit in advance of you doing anything wrong just to remind you what would happen if you did”. Dr D noted that Ms Nadal had also recalled these “reminders”. Mr Nadal told Dr D that the father was cruel to him and “very scary”.
98.On the evidence it is not possible to find that the father assaulted Mr Nadal. The detailed allegations come from the evidence of Ms Nadal and sadly, the reliability of her evidence is in question. Ms Nadal is very much an advocate for her mother’s case and cannot disguise that fact. Importantly, Mr Nadal did not give evidence about these matters. Of course, it is not possible to exclude the possibility that the evidence is based, at least in part, in truth, but given the seriousness of the subject matter, it is not more probable than not that the assaults that are now reported, did occur. It is possible that there were some assaults but that they were not continuous and frequent but that is not what I am asked to find.
99.Notwithstanding the detail of their evidence and that on which they each rely, it follows from the respective applications of the parents that, subject to the father’s concerns for the child because of Mr Nadal, neither parent considers that there is such a risk from the other parent as to justify any level of supervision of that parent’s time with the child.
Assault on mother in 2000
100.It is the mother’s evidence that when the child was about 8 months of age the father raised the child’s high chair over his head and slammed it down on her. The mother said that she and the father were arguing about toys she had purchased for the child. The mother said that she was holding the child in her arms when the father struck her. The mother said that after being struck she phoned her brother who arrived with his wife about 15 minutes later. According to the mother, the father packed a suitcase and left the house. She said that he stayed with his sister and returned to the Suburb R property a few weeks later. The mother was not challenged about her evidence of this incident in the course of the father’s cross-examination of her. On that basis I am obliged to accept the mother’s evidence. The father assaulted the mother on an occasion in the year 2000 and the infant child B was exposed to that assault.
Events of 26 December 2012
101.On 26 December 2011 the child was with his father. He had taken an iPhone with him to his father’s home and his father confiscated it. The evidence about how the child came to have the iPhone is very confusing. The mother and Ms Nadal said that the phone is one of a number of phones used in the mother’s professional practice. The father said that when he turned the phone on he saw a reference to the phone belonging to the child. The father said during cross-examination that among other reasons for retaining the phone, he thought it could contain evidence relevant to these proceedings.
102.It is the evidence of Ms Nadal and her boyfriend, Mr O, that on 26 December 2011 they attended at the father’s home to collect the child and observed the father push the child. They deposed to observing the father push the child with his hands on the back of the child’s shoulders and that the child flew forward through a security door, while trying to maintain his balance. They said they saw the child trying to get down the stairs and that he was crying and his face was red. Ms Nadal said that the child later said:
“I asked him for mum’s phone back that I took from home last week and he got really angry. He pushed me out of the door, he showed me his true colours again today.”
And later when speaking to his mother:
“He pushed me really hard mum, I nearly fell down the stairs.”
103.The father conceded that he had retained the phone and that he reneged on an agreement with the child to return it to him. However, the father emphatically rejected the allegation that he pushed the child. I have found that Ms Nadal and Mr O are not credible witnesses.
104.It is not possible to confidently make a finding about the events on 26 December 2011.
105.As I say, paradoxically, notwithstanding her reliance on those allegations, the mother proposes that the child live with the father unsupervised for block periods in the school holidays and on alternate weekends.
106.Dr D identified the child’s exposure to the conflict between his parents as a source of psychological harm. She said it is greatly concerning that the child has been exposed to “angry scenes” such as the one at the café. In her view these situations are, in effect, domestic violence situations and have a damaging effect on children.
Risks associated with Mr Nadal’s mental health
107.Mr Nadal has suffered poor mental health for many years. It is an agreed fact that Mr Nadal could pose a risk to the child if he is not compliant with treatment or his condition is otherwise unstable. He has been hospitalised on a number of occasions, sometimes on an involuntary basis. Dr D said that Mr Nadal’s current diagnosis is substance-induced psychotic disorder with onset during intoxication and schizoaffective disorder (in remission). The fact that the police were required to attend on Mr Nadal and the fact of the mother’s conduct in protecting the child from Mr Nadal over the years, reveal the potential danger to the child from Mr Nadal.
108.It is likely that the child has been protected from the harmful consequences of Mr Nadal’s illness. For example, has not seen the police attending to Mr Nadal, nor has he visited Mr Nadal in hospital. The father contends that, despite court orders to the contrary, the child has been exposed to Mr Nadal in recent years.
109.There have been occasions when Mr Nadal has acted in such a way as to cause the mother to fear or to be reasonably apprehensive about her wellbeing and that of the child. To the mother’s credit, she has acted to protect the child from Mr Nadal, and at one point she did that by arranging for the child to live with the father. The mother asked the father to take the child in February 2008 because Mr Nadal refused to stay in hospital and at that time had not been fully assessed.
110.It is an agreed fact that any time between Mr Nadal and the child should be supervised. The parents disagree about the form and extent of that supervision.
111.As is referred to earlier, in Dr D’s opinion, it would be preferable that some supervised contact between the child and Mr Nadal be reinstated but that it proceed cautiously and on the condition that Mr Nadal continues to cooperate with his treatment regime. She recommended that they have supervised contact at the home of the mother and with another family member present. The father put a proposition to Dr D that he supervise initial periods of contact between the child and Mr Nadal. Dr D said she would not recommend that the father be the supervisor. She said the proposal would need to be discussed with Mr Nadal’s treatment team, and might work in certain circumstances, but Mr Nadal does not have a good relationship with the father and it could be very counter-productive. She said the father and Mr Nadal do not have the sort of relationship foundation that could make that supervision arrangement functional. She repeated that the mother has demonstrated responsible behaviour in terms of Mr Nadal’s mental illness and has been able to prioritise the child’s welfare.
112.In a sense, these proceedings were made possible because in 2008 the mother put the child with the father to protect him from the possible consequences of Mr Nadal’s illness. But for that fact it is likely that the father would not have had a basis for claiming that the child should predominantly live with him in 2009 and thereafter. The mother’s conduct at that time lends support to Dr D’s opinion that there would be adequate supervision of time spent by the child with Mr Nadal if that occurs at the home of the mother and with another family member present.
Additional Considerations
(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
113.The child is 12 years of age and has consistently expressed a wish to live predominantly with his mother. The father does not contend otherwise. The child has tried to act on his wishes. The mother reports the child told her that he ran away from his father and from school in early 2010. The father is concerned that the mother has set out to influence the child in that view. On the other hand, the child has spent more time in recent years with his father and in his father’s household and therefore might be expected to align himself more with his father. I understand the father’s argument to be that he has brought order into the child’s life and the child might have reacted against the more regimented life in his father’s household.
114.Dr D reported that the child was quite clear that he wishes to reside primarily with his mother. She said that it was apparent to her that it was not just what he said, it was what he felt and he is mature enough to be able to understand the situation and to make that choice. The father took up this issue with Dr D. He asked how she went about identifying the truth of something. Dr D answered to the effect that the truth is not quite as fundamental for psychiatrists as it may be for legal professionals. She said what is true for one person may not be true for another. Truth is relative in terms of people’s emotions and relationships. In terms of assessing the sincerity of expressed wishes however, Dr D spoke about looking for consistency between a person’s emotional expression and the idea they are expressing. Squarely addressing the father’s concerns about the child being pressured, enticed or coached Dr D said that she did not believe that the child could be coached to the extent of his expressed wishes. In her opinion, the child’s wishes are genuine.
115.The child told Dr D that he sleeps “okay” when he is at his mother’s but at his father’s place he misses his mother, cries and wants to “go home”. He told Dr D that sometimes he lies in bed and thinks about his “real home”.
116.The child is 12 years of age and is physically well developed. Dr D assessed the child to be mature.
117.I am satisfied that the child wishes to live predominantly with his mother and to attend C School. Given his age, intelligence and maturity his views should be given significant weight.
(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
118.The background facts suggest that each of the parents has a loving relationship with the child. The evidence suggests that the child also has a loving relationship with Ms Nadal and Mr Nadal.
119.Dr D reported that the child is primarily attached to his mother and has strong attachments to Ms Nadal and Mr Nadal. She said that the child is grieving the loss of Mr Nadal.
120.The father is not the child’s primary attachment figure although they have a significant bond. Dr D said that the child has a “friendly relationship” with Ms A and Ms P but that they are not significant attachment figures.
121.When Dr D asked the child about his closest relationships, the child named the mother, Mr Nadal and Ms Nadal and then a variety of cousins. The child did not include the father or Ms A or Ms P in this list.
(3)(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
122.The parents separated not long after the child’s birth and yet have been able to maintain a relationship between each of them and the child. There has been serious conflict and acrimony but nevertheless, despite having little opportunity to co-parent as an intact couple, the parties have ensured that a relationship has been maintained between the child and each of them.
123.The parents each seek orders whereby the child will live, unsupervised and for overnight and block periods with the other parent. Thus it can be said that the parents are willing to facilitate a close relationship between the child and the other parent.
124.The fact of extreme acrimony between the parents, well displayed during the course of the father’s cross-examination of the mother, must affect their ability to give effect to that willingness. Dr D confirmed that the parents’ highly conflicted and volatile relationship and their inability to protect the child from that demonstrates limitations in their capacity to sustain the child’s relationship with the other parent.
125.It is remarkable that the parties have ensured that the child retains a good relationship with each of them and that they continue to press for orders that will facilitate those relationships.
(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
126.Dr D said that if the child’s current living arrangements were to continue, he is likely to eventually become depressed or hostile towards his father or both. She said that he is coping with the current arrangement but he is not happy with it and would prefer to spend most of his time with his mother and Ms Nadal. Dr D went on to say that it was very clear that the child is quite distressed about the current situation.
127.An important issue relates to the impact on the child of having less time under the supervision of his father. The child’s school work has improved under his father’s care and the father is concerned that the mother will not be motivated or available or able to promote as much a focus on his education. The fact that the mother’s plans for the child’s after school care, which involve Ms Nadal had not been discussed with her, reinforces those concerns.
128.On the other hand, as with the father, the mother is a person of intelligence and education and there is nothing to suggest that she does not want the child to achieve to his potential.
(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
129.The mother lives at Suburb R and the father lives in Suburb G. H School, proposed by the father, is at Suburb M and C School, proposed by the mother, is at Suburb AA. The distance from the father’s home to the mother’s home or to C School is about 17 kilometres. The distance from the father’s home to H School is about 10 kilometres. The distance from the mother’s home to C School is less than 2 kilometres. Any journey from the father’s home involves inner city traffic.
130.Given the current living arrangements the easiest travel load on the child would involve him living mostly with his mother, seeing his father on the weekend and attending C School. Of course, if the father spends mid week time with the child during school term then that would involve him in significant travel and if that time was overnight, the boy too would experience a greater travel load.
131.The father’s financial circumstances are complicated but both parties seem able to afford the travel regimes and school fees required by their proposals.
(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
132.Dr D did not assess either of the parents to have a mental health disorder. She did say, however, that it appears that the father has some personality disturbance and a narcissistic personality style. In her cross-examination she spoke about personality traits being on a continuum. She referred to the father as being someone who is more likely to prioritise his own needs over those of other people; someone of an ego-centric orientation. These traits were plainly illustrated during the father’s cross-examination of Dr D. The father asked questions about the effects of the mother’s actions on him and whether he had been disadvantaged by certain things the mother has done. He asked about a situation where “one parent stokes the fires of animosity and acrimony and one parent tried to accommodate and negotiate and turn the other cheek on most issues” and about how that would reflect on those parents. That question was put despite the overwhelming evidence that both parents have contributed to their volatile relationship. In response, Dr D reiterated that this was not a one sided dispute and that each of the parents have contributed to their volatile relationship. The father talked about how he did not have the chance to raise his other children how he has put a lot of effort into the job of raising the child. Again, these comments reflect a position where the father is unable to separate his needs and what might be in his best interests from what is best for the child.
133.Dr D said the mother has some personality disturbance or at least prominent cluster B traits, chiefly of histrionic subtype. Dr D assessed the mother to have an effusive emotional style and somewhat dismissive attachments. Dr D explained this to mean not really taking seriously enough the relationship issues between significant people in her life. She tends to dismiss the importance of the relationships. In terms of the impact that has on parenting the child, she said it is complex because she can also be emotionally volatile. It had transpired earlier in the proceedings that the mother had not told Ms Nadal that she would be supervising the child after school. Dr D thinks this complex way of relating to people could be addressed in counselling.
134.Dr D thought that the father demonstrated a better capacity to provide structure and discipline for the child. However, she said that as the child becomes older it will become increasingly difficult to rely on those kinds of strategies. With teenagers, a parent needs to be more diplomatic and needs a better capacity to engage. To this, the father put to Dr D words to the effect of “but in my proposal there is no risk that he can go off the rails”.
135.In regard to the mother, Dr D said that she has shown a good capacity to prioritise the needs of the child and to protect him from any problems relating to Mr Nadal. The mother was clear that Mr Nadal was not to have contact with the child until he partook in an adequate treatment program and went so far as to arrange a change of residence for the child to protect him in the face of potential harm.
136.Dr D said that the father seems to be able to meet the child’s physical and intellectual needs. She had the impression that he has not been optimally engaged with the child until recent years and has some limitations in meeting the child’s psychological needs.
137.Dr D agreed that the father has been able to provide structure and stability for the child and that that has been useful for him. In her opinion, the mother does not provide as adequate supervision and boundaries as would be optimal for the child. Again, Dr D thought the mother would be responsive to counselling in this regard.
138.There was a significant focus in the mother’s case on the father’s capacity to meet or contribute to the child’s school fees. The outcome of cross-examination of the father in respect of his financial circumstances is that he has no significant assets and is going to face very substantial bills for the costs of unsuccessful litigation in the Victorian Supreme Court. However, the father gave evidence in cross-examination that if necessary he will be able to borrow money for the child’s school fees from his fiancée, Ms A. Given that both parties propose that the child will attend a fee paying school, I take it that it is common ground that the required fees can be met.
139.There have been many events that give some insight into the way in which the parties deal with each other and without apparent regard for the impact of their relationship on the child. For example:
·On 31 July 2009 at least 7 police officers attended a café at Suburb Z after the mother removed the child early from school and the father insisted that the child be returned to his care. The father recalled that the incident took about 90 minutes and he was interviewed by police 3 times. The father recalled that the boy was crying.
·The mother was prevented by Court order from allowing the child to come into contact with Mr Nadal. The father contends that the child was brought into contact with Mr Nadal on 25 December 2010. The mother said Mr Nadal attended between 8.30 am and 11:45 am. She said that the child arrived from his friend LL’s place at about 12:30 pm – after Mr Nadal left. A few days later Mr Nadal told Dr GG that he had seen his brother on Christmas Day, had drunk alcohol and went to sleep in his car. The mother said that cannot be right. For example, Mr Nadal did not own a car then. Mr Nadal was not required by the father for cross-examination and so these matters could not be put to him. Something was sought to be made of photographs on a Facebook page but without professional crime scene analysis it was not possible to make admissible use of them. The circumstances are ambiguous but it is not possible to find that the child did come into contact with Mr Nadal on this occasion.
·On 27 December 2011 the mother and her fiancé, Mr S attended at the father’s Suburb G units to deliver the child to the father. The father would have it that the mother rudely and inappropriately demanded the return of her mobile telephone from him and that Mr S, somehow inappropriately, said “Merry Christmas” to him. The fact is that when they left the father’s units, the mother and Mr S drove all the way to the mother’s Suburb R home, collected her daughter Ms Nadal and her boyfriend and then drove back to a police station near the father’s home and waited two hours to report the incident to the police. Mr S did not see anything untoward in the father’s presentation and confirmed that he expressed the compliments of the season to the father two or three times.
·The child has used Facebook notwithstanding that both parents say they did not permit it. The mother said that at some earlier point she told the child he could not have a Facebook page. She was asked in cross-examination if he still has one and said she did not know. On day 2 of the trial the mother said she had asked the child overnight and he told her that he did have a Facebook page. The mother said that she again told him that he could not and she and Ms Nadal gave evidence that the mother deleted his page. It transpired that the fact of the child having a Facebook page was known to both parties in January 2011. It is the mother’s contention that the first time the child had a page he established or accessed it with an iPod given to him by the father. She also said that the child’s friend, LL might have introduced him to Facebook. The mother argued that she sees the child for less time than the father does and therefore assumed that the connection might have occurred or been initiated while the boy was with him. Therefore, the mother’s case is that the child defied her and maintained a Facebook page. Ms Nadal said that she knew the child had a Facebook page in November 2011 and thought that it had been deleted soon thereafter. The father conceded in cross-examination that he knew that the child played an internet game called … with his iPod and that the game had a feature allowing the players to chat over the internet. For reasons that were not identified by him, the father contended that the risks associated with that game were far less than those associated with Facebook. He asserted that the chats within … related to ‘buying’ armour or other virtual equipment for use in the game. There is no evidence before me that the subject matter of chats within that game can be confined to particular subjects or that the chatters can be vetted but perhaps that is the case. If not then one could imagine that the same sort of security concerns that arise with Facebook could arise with … . The father was asked why he did not remove the child’s iPod when he learned of the Facebook page and said that he did not want to discipline him in that way and thought it better to pursue the mother about a password for the Facebook account. In any event he said that there was a computer and a Playstation at home and computers at school that might also be used to access Facebook.
It is common ground that the child has accessed Facebook in defiance of what his parents contend are their strong wishes. It is of concern that an 11 and 12 year old boy would apparently defy both parents on this issue. I am left with the strong impression that in this regard the parties were more interested in forensic point-scoring than they were and are seriously concerned about the potential danger from strangers with whom the child could come into contact through interactive web sites. In any event, they both now agree that the child not be permitted to use Facebook until he is 13 years of age and thereafter, only with their joint consent.
·The father complained that, in breach of the interim orders, the mother has discussed the question of which high school he should attend, with the child. The interim orders relevantly provide:
That each party is restrained from discussing these proceedings or any matter relevant to these proceedings including the issue of where the child shall live on a final basis with the child or his school or in his hearing and shall restrain any third party from doing so.
There is no evidence before me as to what the shared intention of the parties was when they settled the wording of this order. The question of which high school the child attends is an issue in the proceedings and is relevant to the proceedings. On its face the order would appear to prohibit discussing a future high school with the boy. There is no doubt that the mother discussed that issue with the child. Each of the parties has enrolled the boy in the school they propose for the child. The mother has paid $1,100 in school fees and has bought and caused the child to try on, the school uniform for C School. She has also bought the required texts. The parties were each permitted to make the necessary arrangements to facilitate their school preference. That permission arguably compromised compliance with the earlier injunction. Dr D said that the order was unrealistic and probably not in the child’s best interests.
140.At the risk of labouring the point, because of the orders they seek, the parties must assess each other as having the capacity to care for the child, unsupervised, overnight and for block periods.
(3)(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;
141.The child is 12 years of age and is physically well developed. Dr D assessed him to be mature.
142.The child was baptised in the Roman Catholic Church and was enrolled at K School as being of the Roman Catholic faith. However, he attended Greek Orthodox scripture at that school of recent times.
In the course of cross-examination, Dr D said the child had quite a good identification with his Greek heritage. She did not see a disadvantage in the child attending a school that is bound up with Greek culture and language.
One of the apparent ironies of the case is that the father, of Greek heritage, argued that the child should attend a Roman Catholic school. The father’s partner is Greek Orthodox and the father attends Greek Orthodox observances. Greek is sometimes spoken in the father’s household by the father, his partner and her daughter. On the other hand, the mother of Roman Catholic background, argued that the child should attend a Greek Orthodox school.
(3)(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;
145. This does not apply.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
146.The parents have been able to provide for the child’s physical needs. On occasions, each of the parties has acted in a protective way. Most strikingly, the mother caused the child to live with the father when she was concerned for his safety as a result of Mr Nadal’s illness.
147.On occasions however, neither parent has been able to insulate him from their antipathy for the other and both have engaged in conflict in the presence or hearing of the child.
(3)(j) any family violence involving the child or a member of the child's family;
148.This issue is dealt with to the extent of the available evidence earlier in these reasons.
(3)(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
149.There is no current Apprehended Domestic Violence Order.
(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
150.The parties have a very poor relationship. I am not aware of any particular order or regime of orders that is likely to discourage further proceedings. Hopefully the parents have gained increasing insight into the harm caused to the child by their conflict and will adopt a more conciliatory approach to issues in the future. One could anticipate that as he matures, the child will have less tolerance for demonstrations of his parent’s antipathy towards each other.
(3)(m) any other fact or circumstance that the court thinks is relevant.
151.Nothing comes to attention here.
Parental Responsibility
152.Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
153.If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows:
SECTION 61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
154. An order for shared parental responsibility has the following effect:
SECTION 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
155. Presumably that must also apply to equal shared parental responsibility.
156. Section 61DA provides:
FAMILY LAW ACT 1975 - SECTION 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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in s 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in s 65DAA).
(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.
Discussion
157.The ICL and the mother proposed that the mother have sole parental responsibility for the child. At the end of the trial the father sought and obtained leave to amend his orders sought to seek that the parents have joint parental responsibility. The unfortunate experience of the father cross-examining the mother amply revealed the paucity of the relationship between the parents. The parties each propose that the child live with the other for block periods and overnight. Nevertheless the intent of the questions and the tone and content of the answers were apparently aimed at demonising the mother and demonstrating her lack of fitness to care for the child. Although he belatedly sought joint parental responsibility, the father’s submissions eloquently explained why that would not be practicable. His submissions in aid of the order he sought were to the effect that the parties co-operated from 2003 to 2008 and although they had serious conflict since then, that was because of things that would not apply in the future – the mother acting for various periods with a grudge against the father or his partner, the problems with Mr Nadal and the lack of permanence of the interim orders.
158.Here, the presumption does not apply because the father struck the mother in the year 2000. In any event, such is the paucity of their communication that it would not be in the child’s best interests for his parents to share parental responsibility. For example, when it was apparent during the trial that a short term decision was needed about high school, the parties could not co-operate in making that decision in order to protect the child from further uncertainty and embarrassment.
Conclusion
159.The presumption that the parents having equal shared parental responsibility would be in the child’s best interests, does not apply. One of the parties must have greater parental responsibility. Logically, that should be the party with whom the child lives for the preponderance of time. As will be explained below, in this case that will be the mother.
160.The father is an intelligent and caring father and he must be consulted in relation to important decisions but the final say will rest with the mother.
Living Arrangements
161.There will not be an order for equal shared parental responsibility. Therefore in deciding what living arrangements would be in the child’s best interests, the consideration of particular patterns of living arrangements is not required by the legislation.
162.It is not in dispute that the child will continue to live with each parent, unsupervised.
163.The contentious issues relate to how the time will be shared, with the choice of school being linked to the living arrangements.
164.The mother and the ICL propose an arrangement whereby the child lives mostly with the mother and for an extended alternate weekend and half the holidays with the father. Belatedly, the father sought a week about arrangement. The thrust of the father’s case is that the regimes in the two households are very different and that must be so. In those circumstances and given the paucity of the relationship between the parents, in my view an equal time arrangement would be confusing and stressful for the child and practically unworkable.
165.The child is intelligent and mature and wants to live mainly with his mother and sister. He wants to attend C School. Dr D said that the child’s expressed views are consistent with his wishes.
166.At times the father had confidence in the mother’s capacity to care for the child. For example, the child remained with the mother for many years after the parties separated. The catalyst for the boy living mainly with the father in recent years was the mother’s protective action in placing the child with the father in 2008.
167.Dr D assesses that the child’s primary attachment is with the mother. The only safety concern raised by the father is in respect of Mr Nadal. Otherwise the father’s case rests largely on him being better able to support and supervise the child, particularly with respect to his schooling. Dr D notes that as the child grows he will make greater demands on his parents’ capacities than just their ability to keep him up to the mark at school.
168.On balance, the better course is that proposed by the mother and the ICL.
169.There remain issues about holidays and special days. These issues were not the subject of much attention during the evidence or submissions. The parents are free to agree to some other arrangement but a decision is nevertheless required.
170.It is agreed that the parents equally share the shorter school holidays with the child. The mother proposes that the father have the second half with the child. The ICL proposes that the parents’ time with the child alternates yearly between the first and second half of those holidays. The father makes no specific proposal. As between the proposals on behalf of the child and the mother, only the mother has specified times and places for handover. For that reason the mother’s proposal is preferred. The proposed form of orders assumes that the shorter school holidays are all two weeks in length. That is the usual situation for NSW Government Schools but not always for private and parochial schools and on that basis I will express the order to accommodate that eventuality.
171.It is agreed that the Christmas school holidays be shared. The mother proposes that the father have the second half of the holidays with the child save that he also have 6 hours with the child on the child’s birthday in January. The ICL proposes that the father have from the end of school to 5pm on Christmas Eve and for the last week of the holidays as well as 6 hours with the child on the child’s birthday. The father proposed that the child live with each of the parents for half of the Christmas holidays but “with alternating year arrangements for Christmas day, boxing day and [the child’s] birthday”. I know from the evidence in relation to schooling that the child was baptised in the Roman Catholic Church and has in recent years attended Greek Orthodox scripture at school. Each of the parents sought that the child attend a Christian school. The father was raised as a Jehovah’s Witness but ceased to practise when he commenced a relationship with the mother in 1991. In the course of the trial he gave evidence to the effect that he attends Greek Orthodox services with his partner but more as a social rather than religious observance. I take it that irrespective of the father’s beliefs, the parents have both ensured in the past and both intend for the future, that the Christmas period be an important one for the child. In those circumstances it would seem appropriate to allow the child to share part of the festive season with each parent. A simple way to share Christmas day, without requiring the inconvenience of travel on the day would be to adopt the form of the order proposed by the ICL but for every second year provide for the father’s time to extend to 10am on Boxing day. That is what I will order.
172.The mother and the ICL seek an order that the parents ensure that the child attends school and does so on time. The father sought no such order. If such an order is needed then one might question the justification for the proposed living arrangements. On the other hand, the order will mostly impact on the mother and she specifically sought such an order. On that basis I will make the order sought.
Contact with Mr Nadal
173.It is agreed that there is an important relationship between the child and Mr Nadal. It is agreed that they should spend time together and it is agreed that any such time should be supervised. Dr D assesses the father’s proposals in respect of information about Mr Nadal’s condition to be unworkable. In that regard I will make the order sought on behalf of the child and by the mother. Despite what was reported to be a nice recent interaction between them in a park, I doubt that the father’s relationship with Mr Nadal is such as would make it practicable for the father to be the supervisor. The mother and the ICL propose that the supervisor be “an adult”. As I have recorded, Dr D said that supervised contact between the child and Mr Nadal should be reinstated, should proceed cautiously and on the condition that Mr Nadal continues to cooperate with his treatment regime. She recommended that they have supervised contact at the home of the mother and with another family member present. I will make orders in accordance with Dr D’s recommendation.
School
174. In the course of the reasons given on 13 January 2012 I said:
12.The schools proposed are physically more convenient for each of the parenting arrangements proposed by the parents. [Suburb AA] is very close to the mother’s home whereas [Suburb M] is more convenient to the father not just because it is closer than [C School] but also because his partner’s daughter, [Ms P], attends that school. She is a couple of years ahead of the year [the child] would be going into. [Dr D] supported [C School] on two broad bases. Firstly, it is what [the child] wants and, secondly, there would be a connection through other children or another child that would ease his way into that school.
13.The professor was cross examined yesterday and did not resile from that opinion. She said that in those circumstances there would need to be strong reason for taking a step against the wishes of the child. She was cross examined in relation to the reliability of his wishes and she was unshaken in relation to her opinion that the wishes were not only expressed by the child, but also that his affect was consistent with those being the views that he genuinely holds.
14.She said in relation to the second basis that even if one child with whom [the child] had a connection was attending the school, then that would be important.
15.In this regard, it is said that a child, [LL], who has appeared in the evidence (perhaps not always an entirely flattering light in relation to his involvement with a social network site), but who I understand is the son of a friend of the mother and somebody, for example, we were told with whom the child spent the morning of Christmas Day of last year. They have a close connection. I understand that [LL] might be in the year ahead of [the child]. He attends that school or will attend that school. I am told without complaint today that there will be at least one child attending [C School] from the child’s current school, [K School] at [Suburb R].
16.There was no challenge to that evidence. It is the father’s evidence that his partner’s daughter attends [H School] and, on the open day, as I understand his evidence, [the child] was warmly greeted by seven or eight of [Ms P’s] friends at the school. There is a concern that although [the child] is a mature child, a connection with children much older than himself might not be as useful as a connection with children of a similar age. A concern that was raised with [Dr D] by the counsel for the ICL related to the fact that [the child] might come to attention at school because he is a big boy, and, in circumstances where he is to be eased into a new school, there may be more risks for him coming to attention from other children. [Dr D] agreed that it is important that he has somebody familiar to him at the new school.
17.The father’s objection to [C School] is counterintuitive. Firstly, he says it is too much of a Greek enclave. The irony of the case is that he is of Greek background. He seeks what he describes as a more universal educational experience for the child. Secondly, although there is no evidence of it, the father says that information might come to the attention of students at the school that the child has relatives who are Jehovah’s Witnesses, and an historical or cultural prejudice from the Greek Orthodox tradition might be brought to bear on the child. There is no evidence of that and the background evidence of the case does not support that argument. Members of the father’s current household, for example, practice as members of the Greek Orthodox church and indeed the father attends Greek Orthodox services. There is not enough material for me to make an order that I could justify against the otherwise unchallenged opinion of the expert.
175.Coming to the issue again here, it is inevitable that the fact of the child already attending C School is a relevant matter.
176.The parents have put before the Court evidence about the courses and facilities available at the competing schools. It is not possible on that material to make a comparative assessment of the educational or extracurricular claims of the two schools. That is not really what the parties have argued.
177.Given the proposed living arrangements the easiest travel load on the child would involve him attending C School.
178.There must be a preference given to the school that was chosen by and is convenient to the parent with whom the child will spend most of his time. That parent, in this case the mother, will necessarily have significant contact with the school and if there are issues with the school, the fact the choice of that school was imposed on her is unlikely to assist with those issues.
179.It follows from what I have said that the best option is that favoured by the child – C School. His friend, LL attends the school; the child wants to attend the school and it is very close to his mother’s home. Pursuant to the order made on 13 January 2012, the child has attended C School since the commencement of Year 7 and therefore an order that he attend that school indefinitely will involve no additional inconvenience, adjustment or embarrassment.
Facebook
180.In the course of the trial the parents agreed that the child will not be permitted to use Facebook before he is 13 years of age and thereafter, only with their joint consent. Neither parent sought a formal order about the issue and given their agreement, it is unnecessary to make such an order. In any event an order that purports to prevent them agreeing to something would be inappropriate.
Conclusion
181.I have no doubt that these are loving parents who want the best for the child. Their personalities and their treatment of each other make it impracticable for them to equally share parental responsibility. There are aspects of the parties’ personalities and conduct that detract from their parenting capacities. The parents are intelligent, well educated and sophisticated individuals. The mother is the child’s primary attachment figure and for most of his life he has mainly lived with her. The child’s best interests call for a restoration of that arrangement. It follows that the child should attend the school that he wants to attend and that is most convenient for the mother. Some protections need to remain in respect of Mr Nadal but the mother has demonstrated that she can act in the child’s best interests where Mr Nadal is concerned.
182.The orders are complicated and may require minor adjustments. I will allow the parties to restore the matter before me within 28 days of the date of delivery of judgment, or such further time as they might agree, in relation to any agreement about a change to the wording of the orders or an argument that the wording does not reflect these reasons.
I certify that the preceding one hundred and eighty two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan dated 11 May 2012.
Associate:
Date: 11 May 2012
Key Legal Topics
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