Mitchell & Mitchell
[2022] FedCFamC1F 955
Federal Circuit and Family Court of Australia
(DIVISION 1)
Mitchell & Mitchell [2022] FedCFamC1F 955
File number: LNC 474 of 2020 Judgment of: MCGUIRE J Date of judgment: 20 December 2022 Catchwords: FAMILY LAW – CHILDREN - Application by mother seeking orders that child live with her - that the child spend time with the father in a weekly cycle and for half of all school holidays - Application opposed by the father who seeks mirror orders to those of the mother - Orders that child live with the mother and spend time with the father in a weekly cycle and for half of all school holidays - Order for equal shared parental responsibility Legislation: Family Law Act 1975 (Cth) ss 60B(1) and (2), 60CC and 65DAA Cases cited: Galea & Galea (1990) 19 NSWLR 263
Jones v Dunkel [1959] HCA 8; 101 CLR 298
McCall & Clark [2009] FamCAFC 92
Division: Division 1 First Instance Number of paragraphs: 146 Date of hearing: 10, 11, 12 and 13 October 2022 Place: Launceston delivered Hobart Counsel for the Applicant: Mr Verney Solicitor for the Applicant: Matthew Verney Lawyers Counsel for the Respondent: Ms Higgins Solicitor for the Respondent: Bishops Barristers & Solicitors Counsel for the Independent Children’s Lawyer: Ms Hunt Solicitor for the Independent Children’s Lawyer: Tasmania Legal Aid ORDERS
LNC 474 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MITCHELL
Applicant
AND: MR MITCHELL
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
MCGUIRE J
DATE OF ORDER:
20 December 2022
THE COURT ORDERS THAT:
1.All previous parenting orders in respect of the child Z born 2013 (“Z”) be and are hereby discharged.
2.The parents Ms Mitchell (“the mother”) and Mr Mitchell (“the father”) have equal shared parental responsibility of Z.
3.Z live with mother from 5.00pm on 21 December 2022 with the mother to collect Z from the father at the F Town Shop.
4.Z spend time with the father as follows:
School term
(a)Each alternate weekend from after school on Friday until the commencement of school on Monday (or extended until the commencement of school on Tuesday in the event of Monday being a public holiday or student free day) and each alternate week thereafter commencing on the second weekend of Term 1 2023.
(b)Fortnightly from the conclusion of school on Wednesday (such time to commence at 9.00am if a non-school day/student free day or a public holiday) until 8.00pm on that Wednesday but provided the father give the mother confirmation by email or SMS message no later than 6.00pm on the Monday preceding the relevant Wednesday on each occasion that he will be taking up such time-with Z failing which the mother and Z are entitled to conclude that such time-with will not be occurring and that the father is to collect Z at the commencement of such time as appropriate from Z’s school or C Town McDonald’s if not a school day and return Z to C Town McDonald’s at the conclusion of such time commencing from the 3rd Wednesday from Term 1 2023.
School holidays
(c)For the first half of each Tasmanian gazetted mid-term school holidays from Friday at the conclusion of school until the second Saturday at 12 noon ;
(d)For one half of the longer Christmas/summer school holidays:
(i)In even numbered years, commencing in 2022/2023, for the second half of such holidays;
(ii)In odd numbered years, commencing in 2023/2024, for the first half of such holidays.
5.In any event Z is to spend Christmas Eve each year with the parent he is otherwise not with pursuant to Order 4(d) between 9.00am and 7.00pm with the changeovers to take place at the F Town Shop at the start of such time and C Town McDonald’s at the end of such time.
6.Such variations of the above and further or alternate times as agreed in writing between the parents.
7.Changeovers shall occur as follows
(a)On school days the father shall collect Z from school at the commencement of time and return him to school at the end of time provided that the father return Z to C Town McDonalds at the conclusion of such time on Wednesday.
(b)On non-school days the mother shall deliver Z to the F Town shop at the commencement of time and the father shall return Z to C Town McDonald’s at the end of time.
8.Weekend time and Wednesday time-with in accordance with Orders 4(a) and (b) will be suspended during school holiday time.
9.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Mitchell & Mitchell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J
APPLICATIONS
These are completing applications in respect of the living parenting arrangements for the parties one child Z (“Z”) born 2013 (aged nine years).
The parties effectively seek mirror orders with both arguing for equal shared parental responsibility. Each party contends that Z’s best interests are best served by living primarily with that parent and spending alternate weekends and half school holidays with the other parent. The mother, Ms Mitchell, lives in J Town in Tasmania and the father, Mr Mitchell, lives in F Town, a distance of near 100 kilometres and an extended travelling time between their homes.
The Court has the benefit of an Independent Children’s Lawyer (“ICL”) and a Family Report prepared by family consultant, Ms L dated 7 December 2021. Ms L’s general recommendations are that Z live with the mother and spend time with the father which would involve a change in the current interim arrangements which have Z living with the father and spending time with mother following interim orders made 31 July 2020 after the father unilaterally retained Z in or about mid-2020.
relevant background
The father is 40 years of age and the mother 38 years.
The mother has two older children namely X (“X”) born 2006 (aged 16 years) and Y born 2007 (aged 14). X and Y currently live with their father, Mr H, who assumed their care at around the time of the father in this matter retaining Z on or about mid-2020. The essence of the issues raised by each of the fathers in those cases was in respect of the mother’s capacity to care for the three children in providing a clean and proper home environment together with issues of the mother’s historical mental health.
In August 2020 the father unilaterally enrolled Z in the K Town Primary School where he has remained since.
For various reasons, the mother appears to be estranged from X and Y but where there have been recent or pending proceedings in these courts in respect of those children and Mr H.
The mother has re-partnered with Mr N. She lives in his home at J Town. He is a self-employed and has a son, O, (aged 14 years) from a previous relationship. He and O appear to have a frequent relationship albeit with O living primarily with his mother.
The father has re-partnered with Ms M. She is employed in local government. She has a son, Mr Q, aged 18 years. Mr Q lives with his maternal grandparents and Ms M deposes that the relationship between Mr Q and Mr Mitchell has been problematic.
The mother has qualifications and, until recently, was self-employed. She remains self-employed and apparently working from her home.
The father is self-employed.
The parents commenced a relationship in early 2010. They married in early 2012. They separated in November 2012 being some seven months prior to Z’s birth. Separation followed an incident of family violence between the parents that resulted in mutual Family Violence Orders being issued. There remained, however, a degree of co-operation between the parents with the father moving into the mother’s home to care for X and Y whilst the mother was in hospital giving birth to Z.
The mother moved from B Town to another area in Tasmania in or about early 2014 and the father had no contact with Z between early and mid-2014.
The father issued proceedings in the Federal Circuit Court in respect of Z in 2014. This resulted in consent orders made 9 June 2015 providing for Z to live primarily with the mother and spend time with father.
Z commenced full-time schooling at C Town Primary School in early 2019.
In mid-2020 the father unilaterally retained possession of Z after a period of spend-time. The mother commenced proceedings in the Federal Circuit Court on an application filed 24 July 2020. The interim hearing of 31 July 2020 left Z in the care of the father with an order for Z to spend time with the mother.
On 17 June 2021 further interim orders were made in respect of Z.
the issues
There is a broad issue as to whether Z’s best interests are served by him living primarily with his mother at J Town near C Town in Tasmania or with his father at F Town, a distance of significant kilometres between the parties residences, and where the logistics of geography and travel do not permit any form of shared care during the school term.
The parties, to their credit, have agreed that Z’s weekend and school holiday time will be shared equally between them thereby limiting the determination of this Court as to Z’s primary place of residence during school weeks.
The mother raises issues of family violence of various types, but with an emphasis on the father’s capacity for coercive and controlling violence, where she suggests that the father taking unilateral possession of Z in mid-2020 and his subsequent interim application to this Court supported by untested evidence is in itself an example of his controlling and coercive tendencies.
The father raises issues as to the mother’s capacity specifically where he says that his interim application in July 2020 was initiated by the mother’s inability to provide clean and stable accommodation and parenting arrangement for Z. He says there is evidence of the mother’s home being dirty and unkempt and where she habitually delegated care of Z to her older children, X and Y.
The father raises issues in respect of the mother’s historical mental health but where his counsel’s cross-examination of the mother at the trial suggests that the father no longer holds these concerns.
There are other issues as to the veracity, maturity and independence of Z’s stated wish and preference to remain primarily in the care of his father.
There is a an issue as to the weight to be accorded to the status quo of Z living with his father and attending the K Town Primary School such created by the interim orders of July 2020.
The mother raises an issue as the capacity of the father to attend to Z’s physical, intellectual and emotional needs with the suggestion that the father delegates many of these responsibilities to Ms M.
There is an issue as to which of the parents, if any, can better maintain a relationship for Z with his siblings, X and Y.
the evidence
The mother
The mother relied on her trial affidavit affirmed 15 September 2022. She was cross-examined extensively. I observed the mother as an open, responsive, informed and articulate witness who was objective and child focused. She was not unduly critical of the father and responded in the affirmative to the long line of questioning by the father’s counsel suggestive of the father having gained a greater degree of insight, communication and parenting co-operation from mid-2020 when he over held and retained Z.
The father
The father relied on his affidavit affirmed 7 September 2022. He was not as good a witness as was the mother. There was a high degree of superficiality in respect of his evidence where it is clear that his answers to questions in cross-examination were responsive to the criticisms of him in the Family Report that he exhibits traits of coercive and controlling tendencies and is negative and critical of the mother. As such, his responses and attempts at positivity in the witness box were often unconvincing. In this sense, I share the conclusions of the family consultant, Ms L, who when questioned in the witness box doubted the veracity of the father's newfound positivity and co-operative nature preferring that “it is easy to show these traits when you have got what you want (namely possession of the child)”.
On the balance of probabilities, and having observed and heard the father’s evidence, I prefer that he continues to show traits of a controlling personality (as exhibited recently during negotiations towards a family holiday for him in Queensland which involved a variation of existing orders and the taking of the holiday during school time but where the mother’s hesitation to agree with him resulted in an application by the father to this Court).
I observed the father to be a forthright and confident personality but perhaps one with little empathy towards others.
Mr N
Mr N is the mother’s current partner. He provided an affidavit affirmed 16 September 2020. Rarely has this Court seen such a grounded, insightful, objective and impressive lay witness. He spoke plainly without either criticism or false praise. He seemed quite incapable of exaggeration or embellishment. Put simply, he “called a spade a spade”. I accept that he would be, and is, a considerable support for the mother. His description of his relationship with Z and his own understanding of the adult hierarchy for Z was impressive in the extreme. He is a hard-working man, committed to the mother and to Z, and in my view presents as a fine role model for Z, whether or not Z is to live primarily with the mother or with the father.
Ms M
Ms M is engaged to the father and they have been in a relationship for some years. Like Mr N is to the mother, I found Ms M to be of considerable support to the father, generally and in his care of Z. Indeed, the thrust of the evidence is that Ms M has graciously taken on a greater role than even the father in the day-to-day care of Z. She is involved in his education and extra-curricular activities.
The evidence is that Z has a very attached and loving relationship with Ms M. If there is to be criticism of her then it is perhaps a lack of insight into the need for Z to have a relationship with his mother and one without interruption or input from the father or Ms M.
Her inability to understand that it might be contrary to Z’s interests for her to be conversing with him unnecessarily during his limited time with his mother is of some concern. Nevertheless, I observed Ms M to be an altruistic and caring stepmother for Z and a person who will significantly benefit Z as an adult role model.
Ms R
Ms R is Z’s current Grade 3-4 teacher at K Town Primary School. She swore an affidavit on 15 September 2022 such evidence adduced by the ICL.
Ms R is an experienced teacher and was impressive in court as to her empathy for her students.
She was detailed and informed in her evidence. Generally, she gave evidence of Z being comfortable and settled at the K Town Primary School where he is progressing well.
At [5] she described Z as being able to talk openly about his home life and including his visits to his mother. At [6] Ms R deposes: I have no concerns in regards to the way [Z] speaks about his mum’s household or his dad’s household.
Ms R deposed that direct parent involvement at the school has been severely limited by reason of the Covid-19 Pandemic.
Ms S
Ms S is a teacher from C Town Primary School. Her affidavit was affirmed on 22 December 2020 being some few months after the interim orders placing Z into the interim care of the father.
Ms S was not required for cross-examination. She is also an experienced teacher. She described Z as being positive in respect of both his mother and his father and there being no evidence of any complaint by Z as to his living arrangements with his mother in C Town prior to mid-2020 when he was over held by his father. Specifically at [14] Ms S deposed: “there were no flags to cause me concern that [Z] was being neglected at home or that there were issues of neglect”.
Ms T
Ms T provided an affidavit affirmed 15 September 2022 and adduced by the ICL. Ms T is a Social Worker describing herself as an “Accredited Mental Health Social Worker”. Her curriculum vitae is annexed to her affidavit and is self-evident in its lack of experience in matters involving the Family Courts.
It is clear that her focus has been on alcohol and drug rehabilitation although she now apparently holds a more general practice.
Ms T’s evidence was of limited assistance to the issues before this Court. Indeed, under some vigorous cross-examination, she agreed that it could be the case that the apparent selective nature of the material in her affidavit was attributed to the fact that she considered herself to be perhaps briefed on behalf of the father and Ms M.
On its face, Ms T’s evidence reads as a selective reference for the father’s case. Cross-examination exposed factors that could favour the mother’s case to be missing from her affidavit.
Ms T was unable to persuasively explain to the Court the need or rationale of any counselling for Z where objectively he was not exhibiting any difficulties requiring counselling.
Ms T confirmed that her counselling of Z took place by way of a series of mental health plans quite obviously initiated by the father and firstly for a period in mid-2021. Significantly, Ms T was unaware of the second mental health plan from a general practitioner in or about early 2022 and made after the father’s receipt of the Family Report.
Ms U
Ms U is a Psychologist. She gave an affidavit affirmed 22 February 2021 annexing an assessment in respect of the mother commissioned by her lawyers and dated 18 December 2020. The indications are that Ms U had been given an accurate and objective history including allegations made by the father in support of his application of July 2020 and his withholding of Z to the effect that the mother suffered a mental illness.
Ms U deposes in the first paragraph of her assessment:
… Her presentation was calm though she did appear appropriately nervous. [The mother] did not exhibit thought disorder, a grandiosity or bizarre behaviour, nor did she indicate ideas of reference, or unusual perceptual experiences, and her orientation was to time and place. …
Ms U observes that the mother gave a plausible explanation as to the alleged state of her home isolated in time and context.
Ms U administered recognised psychological testing and found a normal profile in the mother albeit with some scores indicating a tendency to be self-centred when experiencing high levels of energy and drive. A history of bouts of depression are noted to be managed by prescribed medication.
Ms U concludes:
[The mother] is a 37–year old professional woman who presents well, she takes care of her own [property], her […] business, and her many interests, but above all desires to do the right thing by her children [X], [Y] and [Z]. [The mother] express’s (sic) commitment to her children, and has good awareness of her childrens’ developmental needs. During interview and assessment no concerns were raised regarding [the mother’s] ability to care for her children and to prioritise their needs.
There is no clinical syndrome present on interview and assessment that would affect [the mother’s] ability to parent her children. Should [the mother] be assessed further, and there be evidence of cyclothymic disorder, this would benefit from psychological support, however it is not likely to impact on her capacity to parent her children. Whilst [the mother’s] (sic) continues to take [medication] for mild depression this will allow her to function in a manner that enables her to run a business, [her property] and parent her children. Whilst prescription medication is useful, it is possible to develop skills to manage mood swings without medication and this could be considered by [the mother].
[The mother] does not need intensive psychotherapy to overcome any psychological illness. She appears to have a level of functioning suitable to parent her children and has capacity to manage stressors and mood swings.
family report – MS L
Ms L conducted a Child Inclusive Conference in this matter on 10 and 11 September 2020 with a Memorandum dated 14 September 2020. She also prepared the Family Report dated 7 December 2021 after interviews conducted in late November 2021.
The recommendation of Ms L are set out in her report at [126] and following thus:
126.Unless otherwise indicated, it is recommended that [Z] live with [the mother], and she and [the father] share parental responsibility for [Z].
127.It (sic) recommended that [Z] spend alternate weekends from Friday after school until Monday morning with [the father].
128.It is recommended during school holidays, [Z’s] weekend time could be extended by two nights.
129.It is recommended [Z] be engaged in therapeutic support to support his re–integration into [the mother’s] care.
130.It is recommended [the mother] engage with therapeutic support to reconcile her past experiences and support a future co-parenting relationship.
131.It is recommended [the father] engage with a Program such as the [V Program] …
Ms L gave evidence and was cross-examined. She had not been given the benefit of reading the updated trial affidavit. Effectively, she maintained her primary recommendation that Z return to live with the mother. She also maintained her concerns expressed in her report as to the father’s controlling and coercive personality together with the father’s tendency towards negative, critical and demeaning comments in respect of the mother.
Ms L was objective and considered when it was put that the father’s affidavit material, his evidence in court, and some concessions made by the mother in court might be indicative of a greater insight and a move from his critical and demeaning tendencies. Ms L was cautious, however, noting that it is “easy is to be more accommodating when you have achieved what you want namely having possession of the child”.
At [43] of her report Ms L notes the mother complaining of the father having a “controlling personality” … and being “strict on the children, a heavy disciplinarian and found [X] difficult to deal with”. Notably, the affidavit of Ms M makes similar comments in respect of the father’s problematic relationship with her own teenage son, Mr Q.
The mother reported physical violence at the hands of the father during their relationship [44] including demeaning and humiliating comments. She also reported a sexual assault [45]. At [46] the mother reported controlling behaviour by the father such as taking the car keys, her purse and telephone together with financial control.
Ms L also interviewed the father. At [51] she describes the first interview with the father from September 2020 as follows:
… [The father] presented as having a particularly poor attitude towards [the mother], calling her derogatory names such as “schitzo” and while this appeared to be partially moderated in this interview, he continued to be heavily focused on [the mother’s] deficiencies, have a sense of his own self–importance and have a limited capacity for self–reflection.
Later at [54] the father was noted as describing the mother as “a disgusting slob”.
The father responded to assertions of him being a perpetrator of family violence generally in respect of the violence being mutual or being reactive. He otherwise denies specific allegations such as that of sexual assault.
At [58] of the second report the father is observed as being more positive towards the mother than he was in September 2020. He references Z being settled, happy and socially adapted
In respect of the relationship between the parents, Ms L opines at [80]:
The relationship was further marred by [a family tragedy], which had ongoing repercussions for [the mother’s] mental health. [The mother] indication that she felt unsupported by [the father] during this time appears to be supported by [the father’s] presentation during the assessment, where he did not appear to have a particularly empathetic manner or high level emotional intelligence.
Ms L had the advantage of meeting and interviewing Z. At [87] she notes:
[Z] indicated that before the Family Consultant asked him “questions”, he would like to say, “I would like to live with my dad”. When asked why, [Z] reported this was because “my daddy is a lot cleaner in the house” and does not have clothes “everywhere”. [Z] reported that he would also not be able to see [X] and [Y] “until I am 18 or something” if he lives with his mother. [Z] reported that at school, he has “a lot more friends now” and they are “nicer people”. [Z] reported that at his old school there was “meaner” people that would “hurt my feelings”. [Z] reported that also at his old school “nobody competed” and that made school “boring” so him and [Y] always won competitions like the cross country.
In her report and in her evidence in court Ms L was doubting and extremely cautious in respect of Z’s asserted preferences to live with his father. She notes a sense of adult involvement where Z volunteered his view immediately upon entering the interview and without question from the family consultant. Ms L notes Z’s statements to be contextually inconsistent with his age and levels of rationality. The conclusion from her evidence is that that the Court should be cautious as to the voluntary and independent nature of Z’s statements wherever there is an indication of manipulation by his father or his father’s household.
Z was observed with both of his parents. He was spontaneously affectionate to his mother. Ms L concludes [98] that Z significantly enjoyed the interaction with his mother and where the mother presented as “positive… child focused… and well attuned…”.
Ms L noted a more subdued and focused interaction between Z and the father and Ms M. She says at [102]:
This was a much more subdued and focused interaction, than was observed between [Z] and [the mother]. However, this did not appear to be due to a lack of enjoyment, rather a less energetic dynamic with both adults being differently focused. While [Ms M] was obviously natural at playing with children, she appeared to present herself in a quite submissive manner throughout the playing, reporting that she knew nothing about guns/military and being negative about her efforts at making items, [Z] appeared to respond to this with him removing a Lego part [Ms M] had made from the building. [The father] did not appear to be put perpetuating this dynamic however the impression was gained that [Ms M] may present herself as submissive in interactions with [the father]. [The father] was natural in the interaction, but rather than joining in, made his own additions to the Lego, suggesting [the father] would naturally play alongside instead of with [Z] in a less facilitative manner than [Ms M] or [the mother].
Ms L assists by bringing information from the Department of Child Safety referenced at [108] of her report as follows:
The child Safety information – 67Za (sic) notice of risk response by [Ms W] provided in September 2020, indicates the service had received multiple reports in 2020 and that there appears to be “little evidence” to support the allegations that began only in January 2020 for [Z]. The report noted all reports have occurred within the context of legal proceedings regarding custody of the children, with caller not wanting [the mother] to be contacted in relation to the concerns.
In her evaluation Ms L notes that Z presented in both interviews as having been influenced by either an adult or his two teenage siblings. She therefore advocates little weight to be given to Z’s professed preferences and says:
… It is highly likely that [Z’s] relationship with his mother has been damaged by the high level of knowledge and involvement he has had in these proceedings and there appears to have been limited attempts to protect [Z] from such by [the father”]…
At [112] and in respect of the unilateral retention of Z by his father Ms L notes that Z is not currently displaying any disruption to his social and emotional development but that this does not mean that these will not emerge as he ages.
At [117] and following Ms L opines:
117.The allegations of family violence are key in this matter, with [the mother] asserting that [the father] has retained [Z], in a manner consistent with his ongoing attempts to manipulate and control her. [The father] makes similar allegations suggesting that [Z] has been withheld from him in an unjust manner because of [the mother’s] manipulative and controlling nature, and extensive mental health issues. …
118.[The father’s] ongoing assertions about [the mother’s] mental health and allegations of her perpetuating family violence, appear consistent with the ongoing perpetuation of a family violence dynamic. As do [the father’s] actions in the lead up to retaining [Z], where it appears he made multiple reports about [Z’s] welfare to Child Safety without asking for [the mother] to be notified of his concerns. [The father] has maintain (sic) his allegations towards [the mother] over time and she reports attempts by him to intrude into her life, although the previous CIC assessment identified at times they had co-operated in [Z’s] best interests. On a surface level [the father] is promoting [Z’s] relationship with his mother, however his deeper attitude towards her and actions indicate to [Z] that [the mother] is not to be respected. [The father] reported [the mother] could not accept when she was wrong and is manipulative, however he does not recognise that he is also presenting and outlining his view of the relationship as the truth, and he is not accepting responsibilities for his part in the relationship dynamic. Based on his presentation and information available, it appears more likely over time [the father] has made ongoing attempts to undermine [the mother] and taken advantage of a vulnerable point in her life, perpetuating the emotional abuse he inflected (sic) upon her during the relationship. [The father] has achieved the outcome he wanted which further suggest that it was his behaviour, and not [the mother’s], which was controlling and manipulative.
At [121] however, Ms L notes in respect of Z:
While [the father’s] motives and behaviour for retaining [Z] were likely focused on achieving his own desires rather than in the best interests of [Z], [Z] is now settled in his care and has a positive and loving relationship with him and [Ms M].
As a recommendation at [122] Ms L opines:
If the court accepts a family violence dynamic with [the father] as the perpetrator, has driven both parties behaviour and underlies the decision of [the father] to retain [Z], then it is suggested [Z] returned to [the mother’s] care during the 2021/2022 school holidays and return to his previous arrangement of alternate weekends with [the father]. If the Court views [the mother] as an ongoing safety risk and having capacity issues undermining her capacity to care for [Z], then it is considered best that he remain with [the father] and have alternate weekend time with [the mother] as well as current after school visits and phone calls.
At [124] Ms L says:
Were [Z] to return to [the mother], it is unlikely his relationship with [the father] will be negatively affected, however if he stays with [the father] there is a high probability of him developing a negative or estranged relationship with [the mother] that would have lifelong repercussions for his intimate relationships. …
The above-mentioned references to the evidence are made on the basis of the Court having had the advantage of seeing and hearing the parties (except Ms S) give their evidence and be cross-examined. In Galea & Galea[1] Kirby ACJ set out some advantages available to trial judges in assessing evidence including:
(a)hearing the evidence in its entirety;
(b)hearing and seeing all evidence in context, chronologically and logically advanced;
(c)having time during adjournments and during the running of the case to reflect upon the evidence and to weigh it against all other evidence whilst fresh;
(d)hearing and seeing interruptions, hesitations and delays in the giving of testimony; and
(e)observing body language, sometimes important for interpreting communication.
[1] (1990) 19 NSWLR 263.
Whilst issues of credit in this matter are important as indeed they are in most trials in this jurisdiction where much of the evidence is word–on–word, Judges must, however, be always cognisant of the pitfalls of giving too much credence solely to demeanour and other indicators when considering the evidence of the witness. Courts should be aware that parties and their witnesses are likely to be nervous, inclined to please, and be giving evidence in an unfamiliar environment.
the relevant law
It is trite to observe that s 60CA of the Family Law Act 1975 (Cth) (“the Act”) offers the fundamental proposition that the paramount consideration in determining a child’s living and parenting arrangements is the child's best interests. I determine those best interests by referencing the proposals of the parties and the probative evidence to the many and mandatory factors set out in s 60CC(2) and (3) of the Act against the background of the Objects and Principles of the legislation set out in s 60B which provides as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA of the Act offers a presumption that parents have equal shared parental responsibility for their children and such an order is in the best interests of the children. That presumption does not apply if the Court is satisfied that there has been family violence or abuse of a child within the broad definitions of those terms in the Act. Alternatively, the presumption may be rebutted by evidence satisfying the Court that such an order would not be in the best interests of the children.
Despite mutual revelations as to the poor nature of their relationship, both parents in this matter ask for an order for equal shared parental responsibility for Z as does the ICL. Section 61B of the Act defines this “responsibility” as relating to the powers, duties and authority that parents have by law for their children. In a practical sense, this normally refers to the decision- making process in respect of long term and important decisions of children as opposed to the more mundane day–to–day decisions which parents habitually make for their children. Matters of education, religious affiliation, and medical procedure are often cited as examples of the obligations of “parental responsibility”. Again, where the mother argues as a focus of her case in this Court the propensity of the father to make unilateral decisions and to be coercive and controlling of her, she continues to ask for an order for equal shared parental responsibility.
An order for equal shared parental responsibility enlivens a course of statutory and intellectual consideration in the Court as to the living regimes which are in a child’s best interests and reasonably practicable. That is, the Court is first to consider whether it be in the best interests of the child and reasonably practicable for the child to live in an equal shared care arrangement between the parents. Quite obviously given the geographical factors in this case, such a regime is not reasonably practicable.
Secondly, and if the answer to any of the initial questions is in the negative, then the Court turns to consider whether the child spending “substantial and significant time” as defined at s 65DAA(3) of the Act is both in the child’s best interests and reasonably practicable. Such a regime is defined as:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Whilst geographical considerations effectively limit any beneficial time for Z with the non–primary carer to weekends and school holidays, each of these parents propose additional time on one afternoon per week for a period of five hours from after school until 8.00pm.
Whilst there are many factors to consider under s 60CC of the Act, subsection (2) offers two primary considerations as opposed to the “additional” factors under subsection (3) but where there is no necessary hierarchical importance or distinction between the subsections. Significantly, however, a recent amendment to the Act at s 60(2A) mandates that the Court must give “greater weight” to the protective considerations and s 60CC(2) over the consideration at s 60CC(2)(b).
section 60cc factors
Section 60CC(2)(a) the benefit to Z having a meaningful relationship with both of his parents.
This is a primary consideration. Both essentially argue that Z currently has attached and successful relationships with each of his parents and that those relationships would be maintained whether Z is to live with the mother or the father. In a more discreet manner, however, the father argues that Z’s relationship with him has developed during the two plus years since mid-2020 with the implication that there may be some damage to that relationship should he relinquish primary care to the mother. Similarly, however, the mother argues that for the first seven years, from Z’s birth until mid-2020, Z’s primary source of support and dependency was with her as the primary parent and this was disturbed by the unilateral retention of Z by the father in mid-2020 with the implication firstly, that the very fabric of the relationship between mother and son has been damaged but, secondly, that it could be restored.
The adjective “meaningful” in respect of relationships denotes a qualitative consideration for the child in the relationship with a parent. That is, an order for any form of time with a child and a parent would not ordinarily be made unless there is some manifest benefit to the child. In this matter the evidence is that Z currently benefits by reason of his meaningful relationship with each of his parents.
Importantly, the consideration under this factor is a prospective or predictive one in the sense of considering the benefit to the child into the future in a qualitative sense and not simply as to a dividing up Z’s time between his parents.[2]
Section 60CC(2)(b) the need to protect Z from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[2] McCall & Clark [2009] FamCA FC 92.
The mother, supported by the family consultant, argues that the father has an innate propensity for coercive and controlling violence. The mother’s affidavit material, much of it repeated to the family consultant, suggests she was the victim of this coercive/controlling violence by the father during the relationship and since. She cites many examples. There is some corroboration in the evidence of the father’s partner, Ms M, herself when describing the problematic relationship between the father and her own teenage son, Mr Q. The relevance of such an argument is that if Z is to remain in the primary care of the father then this propensity has potential to impact negatively on the continuing beneficial relationship between Z and the mother.
The father’s tendency to act unilaterally in respect of Z appears unabated despite his protestations in the witness box of newfound insight and empathy towards the mother and Z’s relationship with her. Not only did the father unilaterally retain Z in mid-2020, the evidence shows that he also unilaterally enrolled Z at the K Town School and then arranged counselling for Z with the school teacher and later with the Ms T all without consultation with the mother.
A more recent example is that within the last few months the father has commenced proceedings in this Court to vary the existing Family Court Orders to allow a holiday for Z and the father’s extended family unit (including Mr H and Ms AA’s family) to Queensland outside of school holidays and where such time would impinge on Z’s spend–time with the mother. This is in circumstances where the mother’s unchallenged evidence is that she had already made arrangements involving Z during those times. Essentially, however, the father sought flexibility from the mother in amending the court orders to suit his circumstances. When she refused, his response was to bring an application to the Court. I find some merit in the argument that this constitutes an example of a coercive and controlling personality.
It is clear that the short-lived relationship between these parents was volatile and characterised by various types of family violence. There are mutual allegations of physical violence corroborated to a degree by the police records. The mother alleged sexual assault by the father but has not pursued that issue in this or any other Court. The parents each concede that they do not like the other. Communication is difficult and limited and their relationship is suspicious and generally mutually critical and negative. Despite this evidence, the witnesses including school teachers and counsellors are in unanimous agreement that Z appears settled, stable, happy and able to continue his relationships with each of his parents. Whether this is because of, or despite, the nature of the parents relationship is debatable.
Section 60CC(3)(a) any views expressed by Z and any factors (such as his maturity and level of understanding) that the court thinks relevant to the weight which it should give his views.
At the interviews with the family consultant in November 2021 Z professed a preference to live with his father. The family consultant is sceptical as to the veracity of Z’s statement given it being articulated as soon as he entered the interview room and accompanied by statements uncommon to the memory retention, rationality, and level of attributed importance normally expected of a child of such young years.
The clear implication of the family consultant’s report and her evidence in this Court is a strong suspicion that Z had been coached or manipulated by the father and/or Ms M prior to the Family Report interviews.
The tenor of the evidence of Ms T, Z’s counsellor, is towards Z having a preference to remain living with his father and Ms M. I place little weight, however, on any of the evidence or revelations of Ms T in circumstances where her evidence was generally unsatisfactory, selective, and lacking empirical credibility and particularly where she herself volunteered that her affidavit material was unbalanced and structured in accordance with her view that she was employed by the father and Ms M.
Significantly, however, the evidence of both the father and Ms M in their trial affidavits is that Z has recently asked to spend more time with his mother. It is clear from context and positioning of this statement in their affidavits, that this was included primarily to show the inclination of both the father and Ms M to be empathetic, altruistic and benevolent in their relationship with the mother by fostering Z’s time with her. The importance for me, however, and similarly to the family consultant, is that Z is now nine years of age and is able to articulate a view to his father that he would like to spend more time with his mother. I accept the submission of counsel for the father that this does not necessarily equate to Z making a preference to live with the mother but it remains, in my view, a significant statement by Z as to his preferences and made in circumstances where he is obviously well aware of the conflictual relationship between his parents.
Section 60CC(3)(b) the nature of the relationship of Z with each of his parents and any other persons or relatives.
The nature of Z’s relationship with his father is now that for the last two plus years the father has been Z’s primary parent. All the indications are that Z is progressing well at school and socially. Indeed, the father argues with some force that Z’s relationship with his mother has continued to be a successful one despite the change in residence in mid-2020.
The mother’s evidence is that she was Z’s primary parent for his first seven years until mid-2020 and that the nature of this relationship has changed whereupon Z has become a visitor to her home whereas she was previously his primary source of supported dependency. Nevertheless, she agrees that her relationship with Z has continued to be successful such that she suggested a further transitional return for Z to her primary care would not trouble this seemingly robust and adaptable young boy.
Z has two siblings of the mother’s previous relationship, X and Y. They are teenagers aged 16 and 14 years. Their relationship with the mother is fractured. They have no current or direct contact with her. Court proceedings continue before a Judge in Division 2 of this Court. I have little or no probative evidence as to the nature of the difficulties that confront the mother and her teenage children but it is reasonable to conclude that she would not be able to offer Z a direct relationship with them in the near future.
To the contrary, the father clearly remains amicable with Mr H who is the father of X and Y. They live in reasonable proximity of one another. There is evidence that Y on occasions attends Z’s sports lessons and that there is an “open door” policy for X and Y in the father’s home at F Town.
Realistically, however, X and Y are effectively of a different generation than Z. They are entering their later teenage years where they will have developing and differing priorities. Whilst hopefully the relationship between the teenage children and Z remains a loving and close one, it is unlikely that it will be defined by more frequent direct visits. Indeed, the father himself anticipated as much when pleading his case for a holiday with Z to Queensland as perhaps being one of the last chances for Z to enjoy such experiences with his siblings, and where there is evidence of part-time jobs and other activities occupying the time of the teenagers.
In any event, the mother’s proposal is, should Z live with her, that Z spend each second weekend and half of school holidays with his father. This would in all likelihood give ample opportunity for Z to maintain those important relationships with X and Y.
Z undoubtedly has a close, supportive and loving relationship with Ms M. My observations of her suggested that she brings much to Z’s life. Nevertheless, there is a blurring of her boundaries when she sees nothing untoward in her engaging in telephone or text conversations with Z during his Saturday morning visits with his mother where he has arrived only on the previous evening. Greater insight for Ms M would lead her to understanding that these are important times for both Z and the mother and should not be punctuated by unnecessary interruptions. This aside, however, Ms M is active and engaged in Z’s life and all to his benefit.
Similarly, I had the great benefit of seeing and hearing the mother’s partner, Mr N, give evidence in this Court. As indicated above, he was the most impressive of witnesses in respect of his understanding of his role in this complicated web of adults all of whom act as role models for Z. Of all of the adults in this matter, it was Mr N who most understood his position in this hierarchy. He was able to articulate his role and his relationship with Z. Mr N is undoubtedly a significant and positive influence in the life of young Z.
Section 60CC(3)(c) the extent to which each of Z’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to Z, to spend time with Z and to communicate with Z.
Without any strong evidentiary basis, the mother argues that the father delegates much of the responsibility for the care of Z to his partner, Ms M. Whilst Z’s stepmother is obviously active in his life, the father is self-employed and he has time constraints accordingly.
The mother argues that the father and Ms M unilaterally make important decisions for Z without consulting her. She specifically refers to Z’s enrolment at K Town Primary School and, with more force, the engagement of a private counsellor for Z, Ms T, without any consultation or consent by the mother.
The father argues that the mother historically delegates the care of Z to her older children.
Section 60CC(3)(d) the likely effect of any changes in Z’s circumstances, including the likely effect on him of any separation from either of his parents or any other children or person with whom Z has been living.
The father’s case emphasises this consideration. He says that Z is settled and progressing well in his care whilst living at F Town and attending at the K Town Primary School. All of the evidence, including that of the mother, corroborates the father’s assertion. The task for the Court is, regardless of the bona fides of the father when retaining Z in mid-2020, to make orders which are in Z’s best interests moving forward and where all the indicators are of a happy and achieving young boy who now maintains positive relationships with both of his parents.
The mother argues that, even on the father’s case, Z is a robust and adaptable young boy and would transition back to her with ease in circumstances where firstly, she was his primary carer for the first seven years of his life until mid-2020 when the father retained him and secondly, where the father himself argues that Z’s transition, following his unilateral retention, in mid-2020 caused no difficulties or distress to the child.
The changes anticipated by the mother’s application would, of course, see Z return to living with her and with Mr N in circumstances where the mother would again become his primary carer whereas for the last two of his formative years it has been the father who has been the primary carer giver for Z. Consequently, Z would therefore again become a visitor to the father’s home. His peer group relationships and extra-curricular activities would move from the K Town area back to C Town and it is likely that he would need to establish new relationships at a new school. The nature of his relationship with Ms M, which is undoubtedly a close and loving one, would also change as would he moving into a household including Mr N.
Section 60CC(3)(e) the practical difficulty and expense of Z spending time and communicating with his parents.
The parents each seek mirror orders of the other in that Z live with one parent and spend alternate weekends and half school holidays with the other. Each of the parents are benevolent and altruistic in offering extra time perhaps one afternoon each week from after school until 8.00am for the non primary carer with Z. The practicalities of this are, however problematic given the onerous travel.
Section 60CC(3)(f) the capacity of each of Z’s parents and any other person to provide for his needs including physical, emotional and intellectual.
The initiative for this case was the father’s concerns, sworn in his affidavits in July 2020, that the mother was unable to attend to Z’s physical needs and further that he asserted she suffered from mental health difficulties. Essentially, the father no longer prosecutes either of those allegations. Significantly, at the commencement of cross-examination of the mother, the father’s counsel expressly stated that the father did not harbour any concerns as to her mental health.
There was little, if any, exploration of the father’s asserted concerns as to the mother’s mental health in July 2020.
Of more significance, however, is that the father gave little evidence himself at the trial in respect of the matters concerning him in mid-2020 as to his assertion of the mother’s unkempt house and her delegation of care of Z to her older children. At the interim hearing, the father was supported by Mr H who is the father of the mother’s now teenage children, X and Y. Mr H prosecuted his own case at around the same time and was clearly in concert with the father expressing the same concerns as to the mother’s care of the children. Indeed, the primary evidence before the Court then was a video adduced by Mr H but filmed by their son X. That video was not put in evidence before me at the final hearing. Mr H was not called to give evidence. The father’s explanation from the witness box for Mr H got not giving evidence was not persuasive.
In this jurisdiction judges commonly state in their reasons the difficulties confronted by courts at interim hearings where allegations and assertions are not capable of testing by cross-examination and where the forensic exercises is incomplete but with a warning to the parties that, should the matter proceed to a final trial, they will inevitably be called upon to prove on the balance of probabilities the assertions made at the interim stage and will then be tested by cross-examination. I harbour concerns that the father has essentially now not prosecuted with any force the matters that he says concerned him such in mid-2020 that he should unilaterally retain Z after a period of agreed contact and to then prosecute an interim application.
When challenged accordingly in the witness box and as to why, therefore, he should not agree to Z being returned to the mother, the father predictably accounted with his now primary argument that Z is settled and happy in his care and that the father himself has gained insight and skill in communicating and co-operating with the mother. The comments of the family consultant are pertinent where she reported that it is easy to be communicative and co-operative when you have “got what you want”.
The mother adduced evidence from a psychologist, Ms U, confirming that she suffers no mental illness or psychological or emotional disabilities that would prevent her from being Z’s carer.
The father’s concerns in respect of the mother’s unkempt home and standard of care given to Z in 2020 was specifically not corroborated by the Department of Child Safety or Z’s then school. The father admits that he made notifications to each of Child Safety and the C Town Primary School. Neither body took any action. An affidavit now before the Court from Z’s then teacher, Ms S, offers nothing in corroboration of the father’s asserted concerns in mid-2020.
The evidence now before me satisfies me that the mother is a capable and loving parent. She has the support of Mr N who again was the most impressive of witnesses. I generally accept her plausible explanations as to the circumstances facing her in mid-2020 when she had the care of three children and was home schooling them during lockdowns because of the Covid‑19 Pandemic. She gives explanations as to a circumstantial situation regarding a pet in her household. Again, I generally accept the mother’s explanations.
The concern in respect of the father’s capacity to care for Z does not rest with his physical skills. Z is well cared for. The father has the great assistance of Ms M who is the most devoted of stepparents. Rather, the concern in respect of the father remains in relation to his attitude to the mother and his lack of insight into the need for Z to have a relationship with the mother. The family consultant identified traits of coercive and controlling personality consistent with the mother’s allegations against the father during their relationship and since. It is arguable that the father’s very act of retaining Z in mid-2020 is yet another example of his coercive and controlling personality as are subsequent events such as his unilateral engagement of a private counsellor for Z, in circumstances where Z apparently manifested no emotional or psychological difficulties. Further, the father’s threat (carried out) to bring an application to these Courts simply because the mother, with valid argument, did not agree to a variation of the Interim Court Orders to allow the father to enjoy a Queensland holiday with Z during school term is yet another example. I had the advantage of seeing and hearing the father give his evidence in court. Much was made by his counsel, in both submissions and in cross-examination of the mother, as to the apparent insight gleaned by the father in respect of communication and co-operation with the mother. I find some merit in the opinion of the family consultant stating that “is it is easy to be communicative and co-operative once you have got what you want”. I found the father’s evidence in respect of these matters to be superficial and unpersuasive. The Court must, of course, have confidence that a primary parent will continue to encourage and facilitate a relationship between a child and the other parent following the conclusion of litigation. The father’s demeanour generally in the witness box and the events set out above do not leave me with that confidence.
Whilst I am generally complimentary as to Ms M’s relationship with Z, her skills and commitment to his care, I harbour concerns also as to her understanding of the need for Z to maintain and flourish a relationship with his mother. In the witness box, Ms M seemed unable to understand that her communications with Z during his limited time with his mother, where there was no apparent necessity for such communications, is an impingement on the relationship between mother and son. It may be that Ms M herself submits, perhaps subliminally, to the more dominating and controlling personality of the father?
S60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle culture and traditions) of Z and of either of his parents, and any other characteristics of Z that the Court thinks are relevant.
Z was just seven years of age when his father unilaterally retained him. A Family Report prepared at interviews in November 2021 disclosed Z to be perhaps young for his age and where the family consultant was cautious as to voluntary revelations from Z as to his preferred living and parenting arrangements with the strongest of suggestions that he had been influenced by his father and/or Ms M.
Z is now nine years of age. I place some real significance, as mentioned above, on the fact that he has recently been able to express to his father that he would like to spend more time with his mother. I see this as a more mature, objective and rational statement of his views than those expressed at the Family Report interviews.
Z is still of primary school age. As such, any transition back to his mother, if that is to occur, would be relatively simpler than occurring later in his minority as identified by the family consultant. The father himself says that Z’s transition to him in mid-2020 was relatively seamless.
Section 60CC(3)(h) if Z is an Aboriginal or Torres Strait Islander
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to Z, and to the responsibilities of parenthood, demonstrated by each Z’s parents.
The concern here is squarely in respect of the father’s attitude and lack of respect towards the mother’s role as a parent of Z. His capacity to act unilaterally is consistent with the observations of the family consultant that the father demonstrates a controlling and coercive personality.
The mother’s responsibilities as a parent were challenged by the father in 2020 where he asserted her household to be unkempt and that she delegated some care of Z to her older children due to her work commitments.
Section 60CC(3)(j) and (k) any family violence involving Z or a member of Z’s family and any family violence orders.
This has been discussed elsewhere. There have been mutual intervention orders between the parents arising from their volatile personal relationship. Their relationship remains toxic and suspicious despite the father’s protestations and revelations in this Court that his own attitude has improved. He candidly conceded and volunteered on a number of occasions that he “does not like the mother”. The mother expressed similar sentiments towards the father.
The communication remains extremely limited and they remain suspicious of each other.
Section 60CC(3)(l) whether it would be preferable to make orders that would be less likely to lead to the institution of further proceedings in relation to Z.
This is a prospective and somewhat problematic consideration. Firstly, Z is undoubtedly settled to a large degree in his father’s household and a move to his mother’s household will inevitably cause some adjustment problems where, without the full support of the father, further litigation initiated by the father is a distinct possibility.
Secondly, Z’s voluntary statement to the father and Ms M recently to the effect that he would “like to spend more time with his mother” is suggestive perhaps of an inclination by Z towards living with his mother albeit not necessarily so. As the family consultant pointed out, a transition for Z during his high school years would be more problematic and particularly where the parents are unlikely to be co-operative in any such move. Again, further litigation may will eventuate.
CONSIDERATION AND FINDINGS
I find that Z is happy and settled in his father’s home and in his school environment. He certainly manifests no difficulties on the evidence before me such that further counselling is, or probably was, required by Ms T or similar.
I am satisfied that Z has maintained a meaningful relationship with each of his parents. These parents offer different personalities with the father exhibiting a more dominant and assertive personality style than the mother.
I am easily satisfied that both Ms M and Mr N offer support, not only to their respective partners, but also to Z where they each present as prominent and beneficial role models. However, I am also satisfied that Ms M does not understand the appropriate boundaries and the inappropriateness of unnecessary communications with Z during his limited time with his mother.
I find that the relationship between the parents remains one of mistrust with little easy communication or co-operation. I find the father’s recent claims of new found insight and understanding in this regard to be superficial, selective and opportunistic in the sense of presenting himself before this Court. I prefer, however, and with support from the examples set out above and my own observations of the father in the witness box, that he continues to be a dominant and assertive personality with little respect for the mother who he candidly admits disliking. I accept the opinion of the family consultant that it is easy for the father to present “as benevolent and altruistic when he has got what he wants”.
I am unable to find any substance to the concerns raised by the father in this Court and in support of his unilateral retention of Z in mid-2020 where effectively those matters were not prosecuted or agitated to any degree at the final hearing of this matter. In this sense I am troubled by the father’s failure to adduce evidence from Mr H or Ms AA, the father and stepmother of X and Y, with whom the father quite clearly acted in concert in mid-2020 where the probative evidence leading to interim orders placing Z into the father’s care then came from that couple. It is open for me to make inference, therefore, that, without persuasive explanation as to them not giving evidence, that the evidence of Mr H and Ms AA may not now have assisted the father’s case. It follows, therefore, that the father has not proven on the balance of probabilities the assertions and allegations he made in mid-2020 to ground the interim orders that he received where the opportunity for the full testing of that evidence is now available.
On the evidence before me I am satisfied that the mother is mentally stable and offers a clean and proper household and home for Z with the very great assistance, practically and emotionally, of Mr N.
I am satisfied on the evidence that the relationship between the mother and Z’s siblings, X and Y, is fractured. She has no direct contact with either child. I accept that litigation is continuing in these Courts before another Judicial Officer in respect of these children. I accept that the relationship between the father and Mr H and Ms AA remains a friendly one where they live in close proximity and that Z, therefore, has greater opportunity for spontaneous and week-time contact with his siblings such not being available in his mother's household.
I note, however, that X and Y our now 16 and 14 years of age. They are generationally removed from Z at nine years of age and they will pursue their own interests, including employment, more in tune with their ages and where, in any event, any orders that I make will have Z spending one half of his quality time being weekends and school holidays with his father which should give ample opportunity for Z to maintain his relationships with X and Y
I am satisfied generally that the mother would maintain Z’s relationship with the father and Ms M should Z live primarily with her. I do not have the same confidence in respect of the father where I find that he retains a dominant and assertive personality consistent with the propensity for controlling and coercive behaviour together with a general disrespect for the mother and her relationship with Z. Once the spectre of litigation is removed, I harbour concerns as to the father’s commitment to continuing to encourage and facilitate Z’s relationship with the mother despite the obvious assistance of Court Orders and sanctions for their breach. I base this on my observations of the father in the witness box together with his unwillingness to accept the mother’s views or court orders if contrary to his convenience as evidenced by his recent applications to this Court.
I am satisfied that the mother’s personal circumstances have changed and that she is now self-employed from her home and available to care for Z during out of school hours. Any previous difficulties in this respect for the mother should, however, be seen in context of her being a primary parent of three children and where she was obliged to maintain employment in circumstances where a Child Support Agreement between the parents in respect of Z effectively brought her little financial contribution from the father.
It is asserted that the father’s retention of Z in mid-2020 was made with mala fides and had an agenda of self-interest where the Child Support Agreement was soon to lapse and with evidence before me that his child support obligation would increase significantly. This issue, whilst ventilated, was not pursued to any great degree and I am unable to make a finding accordingly against the father, although I do maintain concerns as to the circumstances surrounding the father’s retention of Z in mid-2020 when clearly acting in concert with Mr H to obtain possession of the respective children but where those concerns are now not essentially prosecuted, or, at least, not with any rigour.
I am satisfied that, in any event, that there is no independent corroborative evidence of the father’s asserted concerns in respect of the mother’s care of Z in 2020 other than that of the other couple who were not called to give evidence. I take the inference under Jones v Dunkel[3] accordingly.
[3] [1959] HCA 8.
CONCLUSION
On consideration of all of the background facts and the evidence now before me I am of the view that Z’s best interests are served by living primarily in the care of his mother. I place emphasis on the fact that the father has not now prosecuted to any great degree the concerns that he asserted in mid-2020. I find that Z is a robust and adaptable young boy. I place some weight on Z’s statement to the father recently that he wishes to spend more time with his mother albeit I do not see this necessarily as a statement of his preference to live with his mother.
I am satisfied that the mother presents as a loving and capable parent with the considerable support of Mr N. It is notable and of some weight that the mother was the primary carer of Z from his birth until mid-2020 in circumstances where the parents had separated prior to Z’s birth. I am satisfied that Z can maintain a relationship with X and Y during his time with his father. I maintain concerns as to the coercive and controlling personality of the father and its likely impact on Z’s relationship with his mother.
There will be an order that the child Z live primarily with his mother and spend each second weekend from the conclusion of school on Friday until the commencement of school on Monday together with a one half of each school holiday period with his father. Whilst I note the geographical considerations, it appears to be the position of each of the parties that a return to Z’s school on the Monday morning is an available option which, of course, would give Z the added advantage of spending complete Sundays with his father.
I will include a provision, for Z to spend time with the father one additional evening per fortnight which I will nominate as Wednesday, but subject to variation by the parties by agreement, but where there should be a confirmation provision given, on its face, such travel and commitment over the coming years would be prima facie onerous for the non-primary parent and for Z. In these circumstances and if only to maximise their time together, the father would collect Z from his school and return same to his mother’s home.
Despite my serious reservations, in circumstances where each of the parties and the ICL advocate an order for equal shared parental responsibility then I will accede to their wishes. Any reading of these reasons, however, should show my concerns in respect of the still difficult relationship between Z's parents together with my concerns as to the propensity in the father for controlling behaviour. Each of the parents has, however, expressly or impliedly stated a desire to be more cooperative and communicative in their parenting of Z and where Z would obviously benefit from an understanding of his mother and father cooperating civilly in respect of him.
I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mcguire. Associate:
Dated: 20 December 2022
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