Morrow and Moseley
[2016] FCCA 3314
•20 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORROW & MOSELEY | [2016] FCCA 3314 |
| Catchwords: FAMILY LAW – Competing live with applications – high conflict – substantial and significant time not practical due to distance. |
| Legislation: Family Law Act 1975, ss.11F, 60B, 60CA, 60CC,61DA, 64, 65D, 65DAA |
| Cases cited: Bondelmonte & Bondelmonte [2016] FamCAFC 48 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 MRR & GR [2010] HCA 4 Waterford & Waterford [2013] FamCA 33 |
| Applicant: | MS MORROW |
| Respondent: | MR MOSELEY |
| File Number: | DGC 882 of 2011 |
| Judgment of: | Judge Harland |
| Hearing dates: | 1 & 2 December 2016 |
| Date of Last Submission: | 2 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 20 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Dr Alexander |
| Solicitors for the Applicant: | Tyler Tipping & Woods |
| Respondent: | In person |
ORDERS
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the child X born (omitted) 2007 (“the child”).
The child live with the father.
The child spend time and communicate with the mother with the mother as follows:-
(a)During school terms in a three week cycle, for the first two weeks after school on Fridays until 5.00pm on Sunday, extending to 5.00pm Monday if a public holiday;
(b)For 10 days of terms one, two and three school holidays as agreed and failing agreement for the first 10 days commencing at 10.00am on the first day and ending at 5.00pm on the 10th day (the first day being defined as the day after the last day of school);
(c)During school holidays after term four, (summer holidays):-
(i)Commencing December 2016, and each alternate year thereafter from the completion of the last school day of the term until 5.00pm of the third Sunday; and
(ii)Commencing January 2017, and each second year thereafter from 5.00pm of the third Sunday after school completes in term 4 until 5.00pm of the last Sunday before school commences for term 1.
(d)By telephone:-
(i)Each Wednesday during school terms the Mother to make the call between 5.30pm until 6.00pm; and
(ii)On Christmas Day, the child’s birthday and Easter Sunday, the Father or Mother who is not spending time with the child on said day to make the call between 5.30pm until 6.00pm.
That the child spend time with the Mother on the weekend of the ‘Morrow family’ Christmas celebration in December each year and if such weekend falls on a weekend when the child is to spend time with the Father, then the child is to spend a make-up weekend with the Father on dates to be agreed and in default of agreement, on the weekend before.
If Mother’s day falls on a day when the mother does not otherwise have care of the child, the mother will have care of the child that weekend from after school Friday until 5.00pm on Sunday.
If Father’s day falls on a day when the father does not otherwise have care of the child, the father will have care of the child that weekend from after school Friday until 5.00pm on Sunday.
That for the purpose of changeover:
(a)On school days will be at the school;
(b)On Sundays at McDonalds in (omitted);
(c)At any other time at McDonalds in (omitted); and
(d)Or another location as agreed upon in writing by both the Father and the Mother.
Each parent will encourage and facilitate the child calling the other parent when the child expresses a desire to do so.
That the child will continue at (omitted) Primary School in 2017, and the parties are restrained from changing the child’s school unless agreed to by the parties in writing or by court order.
That the Father shall authorise the child’s school to communicate with the Mother in all matters concerning the child, the curriculum, parent-teacher interviews, reports or any other school activity that the child is engaged in.
That both parents shall be at liberty to attend parent-teacher interviews, school plays and concerts and sports days and other events to which parents are ordinarily invited at the child’s school.
That each party shall promptly inform the other of any need for the child to attend a medical practitioner for emergency treatment with details of the treating medical practitioner, the reasons for such treatment, the treatment administered, and any medication prescribed (including dosage) and each parent is to be at liberty to speak to the child’s medical practitioners and access any of the child’s medical records.
That each party be restrained by themselves from:
(a)Denigrating or otherwise criticising the other parent or any member of their household in the presence or hearing of the child or allowing any other person to do so; and
(b)Discussing these proceedings or the contents of any material filed in these proceedings with the child or in the presence or hearing of the child or allowing any other person to do so.
Each parent:-
(a)Attend the Parenting Orders Program at Family Relationship Centre (omitted), (omitted) (“the Program”) for assessment and family counselling;
(b)Follow the recommendations of the Program administrator; and
(c)Complete all aspects of the Program required by the Program administrator.
On the day that the applicant first attends the Program for assessment, the applicant provide to the Program administrator a copy of any family report and a copy of the reasons delivered 20 December 2016 relating to the parents and their children, or any of them.
NOTING
The purpose of orders 15 and 16 found herein is to assist the parents to address their long-standing conflicted relationship, to better communicate, to develop respect for their different parenting styles and to gradually develop insights into how their conflicted relationship, and the exposure of their children to it, is having long term effects on their children’s emotional well-being and development.
IT IS NOTED that publication of this judgment under the pseudonym Morrow & Moseley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 882 of 2011
| MS MORROW |
Applicant
And
| MR MOSELEY |
Respondent
REASONS FOR JUDGMENT
Both parents want their little girl X born (omitted) 2007 (“X”) to live in their primary care. The distance between the parties is such that a shared care arrangement is not practical. If it were practical, it is likely that this case would not have come to court.
The parties separated when X was two years and eight months old. Since the parties separated X has lived with her father and spent time with her mother.
There were previous proceedings in this court with interim orders made providing for the mother to spend five nights a fortnight with X. At the time of those proceedings the father’s accommodation was unstable. Since mid-2012 the father has lived in the same rental accommodation which is a three bedroom home and X has her own room. The matter did not proceed to a final hearing.
The mother moved to (omitted) in June or July 2012.
Since X started school, due to distance, the mother’s time reduced to three nights a fortnight.
Family Consultant
Ms J prepared a family report dated 24 June 2011 in the earlier proceedings and a further report in these proceedings.
The main dispute in the 2011 proceedings was also who X should primarily live with.
Ms J observed that the conflict between the parties was high. This has not changed.
Ms J observed that X had a warm and close relationship with both parents. From the observations she had no concerns about the nature of those relationships. She noted that it had been 12 months since the parties separated and the conflict is high preventing them from having a cooperative parenting relationship which they should work on as X was in the middle of it and it would have an impact on her negatively if it continued.
Significantly at [41] of her first report she observed that X:
[H]as two parents in conflict and she has to find ways in which to manage this. By showing each parent loyalty would mean to some extent that she is protecting her relationships with each of them as well is protecting herself emotionally is not possible under the circumstances. It is not an emotionally healthy place for a child to be….
She did not recommend a shared care arrangement because of X’s age. She recommended X remain living with her father provided that he moved into a house as soon as possible. She thought the spend time arrangements which were in place were appropriate.
Ms J released her second family report on 24 October 2016.
Ms J records the mother telling her that X had been complaining to her and her husband for the past few years that she wants to live with them on the farm so the mother decided that it was time to fight again.
During the second family report interview the mother complained that X did not get breakfast at the father’s home except on Fridays when they stay at Mr Moseley’s partner’s home and that she does not always get dinner. She also says X complains to her that the father puts her down.
The father seeks that the mother reimburse him for his half of the family report because he says this report and the child inclusive conference has not indicated that there is any risk X residing with him. He refers to Ms J being the mother’s choice. As I pointed out to the father, it is preferable for the same family consultant, if possible, to see the family when further reports are required. I am not satisfied that this is any basis for departing from an order requiring the parties to equally share the costs of the family report. I do not propose to make the order the father seeks.
Mother’s history of over holding X
In her first report Ms J records that in the first week of March 2011 the mother over held X and enrolled her at a new day care. The mother removed X from the day care she had been attending for 18 months. The mother told Ms J that she over held X as she had heard that the father had been kicked out of his accommodation and was living in a motel with X.
The mother over held X again in November 2015 for a week. The mother said X needed a permanent tooth removed. The father said X had a baby tooth that was wobbly that had a chip on it. The mother conceded to Ms J that she did not tell the father about the dental appointments. It is apparent from the Annexure to the mother’s affidavit from (omitted), that she took X to the dentist on four occasions as early as May 2015 but did not tell the father. The undated letter from (omitted) notes that X had an initial examination on 16 May 2015 in which there were various carious lesions identified and a treatment plan formulated. The next appointment was on 13 June 2015 where four fissure sealants were completed. It records there was an emergency consultation referral on 29 August 2015 when X presented with pain and there was decay and outstanding restorations. There was a further emergency consultation on 11 November 2015 when there was a tooth extracted. The letter recommended that given the “depth of caries and frank cavitation” as well as the “depth of caries for the outstanding restorations” that it may be possible to complete the remaining restorations under a local anaesthetic rather than a general anaesthetic which would enable the treatment plan to be completed more promptly which was recommended. It is also of concern that the report from the dentist indicates that X needed a reasonable amount of dental work which the father was unaware of despite having X in his primary care. The father says that X had a dental check up at school earlier this year which did not identify any problems and that she had a check-up the year before. The father has not provided evidence from any dentist to verify this. It seems particularly unlikely that a check-up in 2015 would have failed to identify any problems given the report from (omitted). That is of concern.
The letter from (omitted) raises two concerns. The first is that despite the necessity of several appointments and treatment needing to be done, her parents did not consult and work together to ensure that X’s dental problems were treated promptly. The second is that the father seems unaware of the extent of X’s dental problems which appear to be quite serious for a girl of her age.
The mother over held X in early February 2016 and applied for an interim intervention order against the father which was issued on 23 February 2016. The mother says in her complaint in support of the intervention order that when X spent the weekend commencing 19 February 2016 with her she said she was afraid of her father and refused to return to his care. She referred to X getting a haircut on the weekend and being afraid of how the father would react. The mother also says that X complained that she was left in his partner’s care and that they mainly lived at his partner’s house. The mother complained that the father took X out of her school and moved her to a new school, threatening the mother that if she did not sign the paperwork for change of school he would make the next couple of months a nightmare for her. She refers to the father being constantly difficult and verbally abusive and that on 22 February 2016 he was abusive to both herself and X and threatened to have the mother arrested if she did not return X to him by 8.00am the next day. This needs to be seen in the context of the mother over holding X again in breach of the orders.
The matter came before me on 4 May 2016. The parties and X attended a Child Inclusive Conference with Ms O who recommended X be returned to her father’s care. She expressed the opinion that X had been prepared for the interview and made similar comments made by the mother. She thought it was most likely an opportunistic move by the mother in over holding X.
After X was returned to the father’s care the father changed his working arrangements to part-time. His hours are five days a week on weekdays from 9.15am to 3.30pm which enable him to take X to and from school.
The mother lives with her husband and their daughter A who was born on (omitted) 2015. The mother is at home full-time. Her husband is an (occupation omitted). They live in a five bedroom house on a farm in (omitted). When the mother over held X in February 2016 she enrolled X in (omitted) primary school.
The father lives in a three bedroom home in (omitted). The distance between the parents time is approximately 1 hour 50 minutes depending on traffic.
The mother told Ms J that she commenced the current proceedings because X had been complaining to her for a few years that she wanted to live with them on the farm.
The father believes that the mother manipulates X so that X wants to live with her.
One of the sources of conflict between the parents was the father’s decision to change X’s school. The parties have equal shared parental responsibility but do not have a good track record in this regard.
The father’s change of X’s school
The father’s older children were attending (omitted) primary school when X started school. X was enrolled at that school with her older siblings. The father says he lives outside that school zone but X was allowed to attend because she had siblings at that school. In 2015 X no longer had siblings attending that school. The father says that X became “disassociated”. By that he means that she was no longer included in friendship groups because she did not live locally. She continued to do well academically. He decided that she should change schools. He candidly admitted that whilst he decided this in September 2015 he did not discuss it with the mother for three months. This is clearly a failure on his part to consult with the mother as he is obliged to do. He enrolled X at (omitted) primary school. The father says that this school is more convenient for him as it is a 10 minute drive from his home and is on his way to work, whereas (omitted) primary school is a 30 minute drive. The father’s partner’s children also attend (omitted) primary school.
Whilst the father says he told the mother about this in December 2015, it is clear that he did not consult with the mother as he was required to do.
The father gives several reasons for changing X school. He says that 2015 was the first year that X did not have any siblings at school. He says that X started to become “disassociated” from September 2015. By this he means that X was feeling excluded by the other children because she did not live in the local area and they would continue the games they started playing at school afterwards at each other’s homes. This school did not offer any extra curricular activities. He complains about X’s teacher and the fact that the teacher did not tell him about X’s late arrivals and early departures when the mother was dropping her off to school and collecting her from school and that he only learnt about this when he read X’s school report. He also complains that X’s teacher and the mother colluded by arranging that X received awards on Monday mornings without him being informed and having the opportunity to attend.
In her evidence the mother said she was not aware of any issues with (omitted) primary school believed that X was doing fantastically at that school.
In his affidavit the father says he talked about the school issue with his partner and they discussed (omitted) Primary School which is where Ms T’s children attend. The father says the school is closer to his home involving a 10 minute drive on his way to work as opposed to a 30 minute drive and there was the added advantage of Ms T being able to collect X from school when she collected her own children when he was working.
The father says he advised the mother of all of these reasons on 16 December 2015 and says the mother “became instantly outraged”. The father says “I believe Ms Morrow abuses the shared an equal parental responsibility clause to continually stonewall any suggestions in disregarding any benefit they may have on X” what is apparent however from the tenor of the father’s affidavit is that he expects the mother to accept his reasons.
The mother says that the father did not answer her texts when she objected to the change of school and assumed that he did not go ahead. X has spent the last half of the Christmas school holidays with the mother and the mother says X asked if she could take her to her first day of school and that the father agreed to that arrangement. She says that she took X to (omitted) primary school and had made an arrangement with the father for him to drop off her school uniform to that school. She says he told her he was running late so she left the school before he arrived. She says she was later contacted by the school and told that the father came and removed X from school and enrolled her to begin at (omitted) primary school. The mother annexes an unsigned letter which purports to be from the principal of (omitted) primary school. The father objected to any reliance being placed on that letter given that it was unsigned and therefore could not be verified as actually coming from the principal. The father made a complaint to the Department of Education (“the Department”) about the authenticity of the document and a complaint about the principal. He took issue with the content of the letter presenting issues in dispute as facts. The father says he followed the process that is outlined on the Department’s website.
The father is clearly involved with the school as he is able to name various teachers X had and the principals. He was also familiar with X’s progress at school. In the Naplan test in some areas she was above average. Her school report last year indicated that progress was as expected except for sport which was at a grade 4 level. He says the issues X was having were not about her academic performance but socially.
It also seems likely that the father failed to raise the issue of schools earlier giving the mother less time to raise objections. One of the mother’s legitimate concerns was the additional travel time for her to take X to and from school. The mother’s evidence is that it is an extra 20 minutes at least and that it is no longer practical to take X to school Monday mornings because it is not fair to have her wake up that much earlier to take her. Given the fairly limited time the mother has with X a reduction in the fortnightly time from three nights to two nights is significant.
The father says that whilst it is an extra 30 minutes once a fortnight for the mother and X it is a saving of six hours a fortnight for him. This is somewhat ignoring the point. Extra time travel for him does not result in reducing the mother’s limited time. Clearly (omitted) primary School is more convenient for the father in particular because his partner’s children go there.
It is clear from the text message exchanges between the parties that the father’s view is that the mother would block his decisions therefore he would not consult with her. It is certainly apparent that the mother is prepared to unilaterally withhold X and unilaterally enrol her in places that suit her. Both parents deserve to be criticised in this regard as their approach lacks child focus.
The mother complains that (omitted) primary school is further away from her and has meant that she can no longer take X to school on Monday mornings. The father collects X at 5.00pm from (omitted) on Sundays instead. It is clear from the evidence of both parties that the additional travel time for the mother is 20 minutes. I do not consider that particularly significant distance particularly given that X is now nine years old and there was no evidence that she makes any complaint about getting up earlier. The mother only made the trip a couple of times before she withheld X. The added difficulty for the mother is that she has A who would need to travel in the car with her as her husband generally works at that time on Monday mornings. Having said this I accept the mother’s evidence that she does not think it would be fair for X to have to get up earlier.
There is a dispute between the parties as to who is responsible for X having 32 absences and partial absences from school last year. The father says the mother was responsible for most of them. The mother says she was responsible for 12 of them this would sometimes include taking X from school early on Friday afternoon. It is not a particular good track record for either parent.
The father complains that the mother does not assist X with her homework tasks over the weekend. The mother’s evidence is that she talks to X about school work on projects during the week. As their time is limited and precious on the weekends they do other things.
The father’s older children
The father has two older children who live with their mother Ms P in (omitted). B is aged 16 and C is aged 14.
The mother says the father has not had contact with his older children since November 2012. She says she keeps in contact with their mother. She says she has done that so that the half siblings can remain in contact with one another which the father is not supportive of. She says she does not know why. She says she meets up with Ms P and her children every so often and that the children speak to each other via telephone about once a month.
The mother alleges that the father is in arrears of several thousand dollars of child support with respect to his two older children. The father annexed a child support online payment history showing that he has been paying child support each month this year. The father says the mother has never paid child support and has never been required to and that he has been solely responsible for financially providing for X since they separated.
Presumably the mother got the information from Ms P. It is part of the picture that the mother is seeking negative information about the father and the seeking to undermine him as a parent.
The father is firmly of the belief, and says as much in his affidavit and also to Ms J that the mother is on a quest to have X live with her. The father believes the mother is manipulative of X.
The mother said that the father walked away from his older two children. The father emphatically denied this. When cross-examined the father said that he regularly sees both children. B is 16 years old C is 14. He says he has a flexible arrangement and that he and their mother do not stick to the orders because his older children are of an age where they have other activities and interests but he attends C’s sporting activities. He says he sees them between 50 and 60 times a year. This equates to at least every week. This does not appear to be accurate in light of his other evidence about the children having their own arrangements and having last seen them a few weeks before.
It is concerning that X told Ms A, the school counsellor that she is not allowed to see her half-siblings. Ms A records that X was crying when she spoke about them. She says her mother occasionally let her call them but she has to keep it a secret from her father. Ms A has no interest in the proceedings. I accept that she has contemporaneously recorded what X told her but it raises concerns about both parents. If what X says is accurate it is concerning that the father has not been truthful but it is also concerning that the mother puts X in a position where she has to keep secrets from her father rather than the mother raising the issue with the father.
The father’s current relationship
The father is in a relationship with Ms T. They started dating in February 2015. She has two children, D aged nine and E aged six. They do not live together but are planning to move in together some time after these proceedings are concluded. Prior to the May 2016 court date they were spending several nights a week at each other’s homes with the children. Since May 2016 the father says this has generally occurred on Tuesday nights and Saturday nights with varying between and staying at his house and Ms T’s house. The father says they started doing this as a transition for the children before they move in together full-time.
The father agreed when cross-examined that he reduced the number of nights he and Ms T spent together after the hearing in May 2016 and that they now generally spend Tuesday and Saturday’s overnight either at her place or his place with their children.
The father agreed that part of the reason he wanted X at (omitted) primary school is because Ms T’s children also attend there.
The father conceded that it was clear to him that the mother did not consent to the change of school in January 2016. He also admitted that he threatened the mother that if she did not sign the enrolment she would not see X but said that she did not sign the enrolment but still saw her. It still reflects poorly on the father.
There is an issue about the sleeping arrangements for the children when staying at Ms T’s home. The father says that there are bunkbeds and that X has her own bed.
X’s school counselling
X was referred to the school counsellor, Ms A, by the assistant principal. Ms A was subpoenaed to give evidence. She first saw X in February 2016 shortly after she started at school and started seeing her again when X returned to the school in May. It was concerning to me that Ms A gave evidence that it was not her practice to inform the child’s parents when she sees the child for counselling. She said if she had to call the parent of every child she saw she would not have time to see the children. She said it was not unusual for a new student to be referred to her particularly if there had been bullying or an issue with the family. She said she understood that there was an issue with her enrolment at school and she was still wearing the other school uniform when she attended. This would be consistent with the mother’s version of events.
Her counselling notes were tendered and marked as exhibit A. She did not prepare an affidavit (which is often the case with school employees) and was questioned by the mother’s counsel with respect to her notes and was cross-examined by the father.
The mother knew about X seeing a counsellor. She says she knew this because X told her. The mother spoke with the school counsellor on two occasions. It is concerning that even after the mother contacted Ms A she still did not contact the father it is also of concern that the father did not find out about the counselling from X.
Her notes were gone through in detail. I will not set out all of the evidence. She said that X is not a shy child and was willing to talk. She saw X on nine occasions. She takes notes as she is speaking to a child. The first session took place on 10 February 2016. X was not aware that she was going to see her. She records X is saying during that first session “if mum doesn’t do what dad wants dad uses me against mum.” She also referred to not being allowed to see her half siblings when she was with her father. She said X became teary. She said that she noticed that X face would light up when talking about being on the farm and talking about her little sister A.
It is concerning that X’s parents put her in the middle of their dispute. X told her counsellor during her session on 23 June 2016 that her mother was supposed to be calling on Tuesdays and Thursdays but her father says she can only call on Thursdays. This indicated that the mother, if not the father as well, talked to X about this. Order 8 of the orders made 4 May 2016 allow telephone communications each Thursday between 5.30pm and 6.00pm and at such other times as agreed by the parties. From this I infer that the mother at least has inappropriately talked to X about the order. The session on 14 July 2016 shows that X is highly aware of the conflict between her parents and the issue of telephone contact. X again mentions telephone contact on Tuesdays and Thursdays and tells Ms A that her father mutes his phone and tells Ms T to message him on his computer rather than his telephone. This is suggestive of X being aware that the father does not like her talking to her mother.
Ms A records X saying she was afraid of her father on two occasions during the session on 14 July 2016 and 24 November 2016 and this was in relation to the father yelling at her.
The father denies swearing at X when he read the family report. He says that he took X to the movies after the family report interviews and that X was quiet and was obviously “a bit funny”. He says he didn’t talk to X about the report or about the mother’s affidavit. He says when he was driving X to the report he told her that that lady she saw a few years ago would be asking her some questions. X does not remember the first family report interviews which is not surprising given her age. The father says he told her that there was no wrong answer and that she was to just respond with how she felt.
The session notes for 12 October 2016 record X talking about the family report interviews. Nothing is recorded in that session about X being concerned about anything she told the family report writer.
During the session on 4 November 2016 X complains about having to sleep “top and tail” with one of Ms T’s children. She again complains about staying over at Ms T’s place.
The most concerning session note is the entry for Thursday, 24 November 2016. Ms A records and gave evidence of this that X had been looking for her the day before and was keen to talk to her. X reported that her father got very angry with her when he was reading the report. She said her father yelled and swore at her and called her a liar when she told the report writer that she did not get dinner. X was crying whilst talking about this and said she did not feel safe with her father.
X also talked about having problems with friends at school. X told Ms A that she didn’t talk to her father about these sorts of things as she felt safer talking to her mother.
In answer to Ms A’s question to X about her emotional toolbox X said she did not know where it was after her father cleaned out the house. The father asked Ms A about what the toolbox looked like. His questioning was suggestive of it being reasonable for him not to have known what it was. Whilst the father would not have known what it was it is of some concern, firstly that X has not mentioned seeing the counsellor to him but secondly that the father would just throw out a box which would have had trinkets in it. Is not unusual for children to collect items and have trinkets. If the father did throw this out this is another concerning example of the father’s emotional insensitivity and disconnect.
Ms A took notes of a telephone call with the mother that same day, 24 November 2016, where the mother told her she wanted X to have a session with her that day and recounted how upset X had been in the car on the way home the Friday before (18 November 2016). Why didn’t the mother make contact before the following Thursday? Did the mother encourage X to see the counsellor to report these things? The timing also seems strange as Ms J’s report is dated 24 October 2016. As it is a private family report which is not released by chambers I do not know when the parties received it but there is no reason to think that they would not have received it within a few days of the date of the report. Ms A said she did not think X manufactured what she said. She was too distressed.
It is also concerning to me that Ms A made no attempt to call the father after this session whilst talking to the mother. The notes Ms A took from a call she received from the mother on 3 November 2016 provides some further context. The mother was seeking to gather evidence for the court proceedings. It is curious and concerning that Ms A did not think it was appropriate to make contact with the father at this point.
It is also clear from Ms A’s notes that X’s parents, particularly her mother have been talking to her about the proceedings. Whilst X would have some awareness of it by virtue of being interviewed for the family report, it has gone much further than that. Both parents have failed to shield X from their dispute but particularly the mother.
Other issues
The mother said when cross-examined that she did not prepare X for the answers that she gave to Ms O for the s.11F Child Inclusive Conference. She said that X was at school and that she did not know that that was going to happen.
The mother says that on 18 November 2016 X was distraught on the way home. She had said she had had an argument with friends at school but was also upset about an incident with her father. The mother says that the drive home on Friday afternoons after school was an opportunity for she and X to catch up. The mother refers to it as being their bubble. The father gave the impression by questioning the mother that he was suspicious about this but it is not surprising that it would be an opportunity for them to talk about anything and everything given the closeness of their relationship and the time apart. The mother says they talk about school work and her friends and any other issues.
The mother says she wants to fulfil X’s wishes in living with the mother, her husband and A. She expressed the view that as a X will be coming into puberty in the next few years it will be important for her to be with her mother so that her mother can assist her in that process. The father says that he can assist her. He noted that he has a teenage daughter who has gone through that. He also said that there have been classes at X’s school about it. Of course it is impossible to know when X will come into puberty and that may happen in either her mother’s care or her father’s care regardless of which parent X primarily lives with.
The mother’s counsel suggested to the father that he changed his working arrangements to part-time in order to gain advantage in court. The father denied this and said it was financially detrimental for him but given X had had an unsettled start to the year he thought it would be good for X and also feared that she might be taken out of school again.
The father was cross-examined about the s.11F memorandum and it was put to him that X appears to have some difficulties adjusting to sharing the father with his partner. The father replied that it is just part of progressing in life and that this was why they were spending a couple of nights together before moving in so that there is a transition for the children. He said it was normal for X to feel left out in competition with the other two children at times. The adjustments the children and adults need to make for blended family are common. X has had to make adjustments to the mother re-partnering as well. These are issues that parents need to handle with sensitivity.
The father thinks that X tells the mother what she wants to hear because she is trusting and secure in a relationship with him. He echoes the opinions of Ms J. The father says that he does not believe that X has come to the position of wanting to live with her mother on her own but rather that her mother has encouraged her to say that. The mother’s counsel put to the father that X had not seen her mother for eight days prior to the family report interview. He replied that they had spoken on the phone.
The father says that there are things that happen in the mother’s care that he doesn’t like that he does not raise because he does not want to use X to generate litigation. When asked he gave an example of X riding a motorbike and falling off it.
Family Consultant’s oral evidence
Dr Alexander identified the areas of Ms J’s report which she says weaken the report to such a degree that I should not place weight on the report. Those areas include:
a)Ms J’s failure to explore the issue of the father’s relationship with his older children. What Ms J admitted that in hindsight it was an omission she disagreed with the proposition that she should have raised them with X as she said that was not part of what she was doing. Dr Alexander pointed out to Ms J that she discussed A with X so surely it was relevant that she discuss X’s older half-siblings. This is a limitation of the report.
b)Ms J’s failure to explore the father’s relationship with Ms T further. Ms J referred to her letter of invitation but that is not a sufficient answer. At [46] of her report Ms J records X talking about not being able to spend as much time with her father because of spending time at Ms T’s and also spoke about Ms T’s two children. My impression is that Ms J was somewhat defensive about this and was quite firm in her view of the two parents with the father having been X’s primary parent for some years now and with the mother taking actions such as over holding X to interfere with this. This was also raised in the s.11F report. It is a limitation of the report that Ms J did not explore this.
It is clear from Ms J’s oral evidence that she feels strongly that the mother has been on a campaign to get X into her care and has taken actions to secure this including over holding X and taking out an intervention order against the father which included orders preventing the father from being able to approach X’s school. I find there is some evidence to support this.
It is also clear that Ms J accepted the father’s comments to her that he had consulted with the mother before changing X’s school. It has now been established that it was wrong.
Ms J expressed the view that X has a more secure attachment to her father. Whilst X has a close and loving relationship with both her parents her attachment to her mother is a little more insecure particularly when one considers what has happened for X. She has been over held by her mother and has been caught between two parents. As she feels more secure with her father she feels able to say she wants to live with her mother. The conflict between X’s parents has remained high since 2011. X is in the middle of that conflict and has to show loyalty to both parents. Her impression is that X is under a lot of pressure and feels the need to let her mother know that she wants to live with her.
Ms J said that the fact that the mother left the home when X was very young had an impact on X as it would have had in the reverse. More recently the mother has remarried and had another child. These factors all add up to X being more insecure with her mother.
Ms J was present in Court whilst Ms A gave her evidence and read her notes before she gave oral evidence. She accepted that X stated a wish is to live with her mother. She said she thinks it is difficult for counsellors seeing children without experience in this area (as a forensic parenting expert) and having a detailed knowledge of the history of this family.
Dr Alexander put to her that Ms A saw X on nine occasions but she only saw X once. Ms J replied that it is not that simple. She has a different role to that of a counsellor. Her role is that of an assessor who assesses the whole family.
With respect to the sleeping arrangements for the three children when they stay overnight at Ms T’s home Ms J did not clarify with X as to whether or not X shares a bed or a bedroom with the other children. She said that if X has to share a bed rather than a bedroom that would be concerning.
At [61] Ms J observed that since her first report in 2011 X has continued to develop a very significant relationship with her mother and her mother’s husband. She said that this showed that the father as X’s primary carer has encouraged and facilitated that relationship. She expressed concern about the mother’s ability to facilitate X’s relationship with her father given her actions in over holding X and applying for the intervention order. I agree with her concerns. I still hold those concerns after hearing all of the evidence.
What Ms J says at [62] and [63] are significant:
It may be that Ms Morrow genuinely believed that X was at risk from Mr Moseley particularly given the entrenched high level of conflict between Ms Morrow and Mr Moseley. X has lived most of her life being in the middle of two parents in conflict. It is my view that X has emotionally managed moving between them both by showing loyalty to each of them when with them. It also seemed that X feels she has to tell each parent what she thinks they want to hear about what happens in the other household. (omitted) children so caught in the middle of their parent's conflict have seen by example what happens when a significant relationship breaks down so they fear this may also happen to them if they do not protect their relationship with each parent. (omitted) children may also embellish a story about the other parent's house particularly when they receive a positive reaction from the parent they are telling the 'story' to. X is no different to other young children so caught up in these circumstances. It is also safe for a young child to pass 'stories' to each parent as they are very aware the parents do not communicate.
In this case, X has become caught up in the ‘concerns’ expressed by Ms Morrow, X feels she is able to support Ms Morrow in her quest to have X live with her. X feels more secure within her relationship with Mr Moseley so she feels confident she will not lose him if show shows support to Ms Morrow…
Ms J stated that X is not at risk in either parent’s household and enjoys both schools she attended when in her parents’ respective care. Ms J said that part of the reason for recommending X remain in the father’s care is because that is the status quo. There is nothing drastic to warrant a change in residence. She points out that it is natural for a nine year old child to want to spend time on a farm with a horse and her motorbike. She greatly enjoys her time at her mother’s home.
Dr Alexander cross-examined Ms J about the texts the mother annexed to her affidavit in order to challenge Ms J’s opinion at [64] of her report that the father is not vindictive and would not retaliate. Ms J said that she thought the father was reacting and was frustrated. I do not think this entirely answers to those texts. There are also examples of the father being nasty about the mother. Paragraph 18 of his trial affidavit is an example of that. However what needs to be pointed out is that when the mother over held X again in February 2016 the father did not take retaliatory actions but filed an urgent application. This is a significant difference between the two parents.
Ms J said she could understand why the mother wanted to have X in her care as she reaches puberty.
Dr Alexander submitted that I should not place any weight on Ms J’s report for the following reasons:
a)The relevance of the father’s partner;
b)The significance of the father’s relationship with his older children;
c)The sleeping arrangements at the father’s partner’s home;
d)The father’s unilateral change of X’s school;
e)The father’s rude and vindictive texts; and
f)The child’s strong views.
I have discussed these issues as well as issues concerning the mother including her repeated unilateral actions in withholding X.
I accept that there are limitations to Ms J’s report but they are not such that I will place no weight on it in the context of the other evidence I have heard. I find X has been influenced by her mother’s strong desires to have her living in her primary care. It is clear that the mother has spoken to X about the court proceedings. It is also clear that X is acutely aware of her mother’s desires. I find it is likely that X does embellish some things. I accept Ms J’s evidence that this happens when children are subjected to high conflict and where the parents do not communicate. It is highly unlikely that X remembers a time when her parents were not in conflict. Ms J thinks the mother has subtly influenced X. It was the mother who raised the issue of the school and X not getting dinner which she refers to at [49] of her report. X complains that she doesn’t get dinner at her father’s home. When asked to elaborate she could not and said it was a while ago and she could not remember.
Ms J said that she does not believe that the amount of conflict justifies a change of residence at this time. She does not think it will change things a great deal and how X will be emotionally affected by the conflict in the future. She agreed that it would be helpful for X to spend more time with her mother.
When the mother was recalled to give evidence she said it was her mistake with respect to the phone calls and it was only Thursdays instead of Tuesdays and Thursdays.
I accept that there are limitations to Ms J’s report.
Legal Principles and their application to the facts of this case
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act 1975 gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In this case s.60CC(2)(a) takes precedence. X has a meaningful relationship with both her parents. This will continue as a result of these orders. The orders will enable X to spend more time with her mother than she has been able to the past few years.
The Family Law Act 1975 indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3).
X has expressed her views to Ms J and her counsellor. I accept that X wants to live with her mother. I am also mindful of the Court’s obligations to weigh and carefully consider a child’s views: see Maldera & Orbel [2014] FamCAFC 135; Dylan & Dylan [2008] FamCAFC 109 and Bondelmonte & Bondelmonte [2016] FamCAFC 48. It is important to note that whilst the Court must consider the child’s views it is not obliged to follow them. In this case I have considered X’s views in the context of her age and the conflict she has been in the middle of for as long as she can remember. X has a close and loving relationship with both her parents. She needs more time with her mother.
Both parents are able to provide for X’s physical and intellectual needs. I have concerns about her parents’ capacity to provide for her emotional and psychological welfare.
Both parents have taken up the opportunities to participate in decision-making for X. The issue is their inability to do this effectively. They have taken up opportunities to spend time with X.
The mother does not pay child support for X. She is not working and has not been required to.
During the course of the hearing I explored other options for spend time arrangements. By the end of the hearing the parties agreed that the parent who does not have X in their primary care should spend time with X for a greater portion of the school holidays as well as two out of three weekends during school terms.
The orders I will make will significantly increase the time X spends with her mother without changing her primary place of residence. This will be less disruptive to X than changing her primary place of residence. That would require her to change her school again but also would mean living with her mother during the school week which she has not experienced before. It is clear she likes her school and is doing well. What the orders achieve is providing X with more family time with her mother. As well as additional weekends she will have more time during school holidays which is a particular benefit as the mother is not in paid employment.
Whilst the mother will be disappointed by these orders, they do provide for X to spend significantly more time with her mother during weekends and holidays which will enable X to enjoy the time she clearly loves with her mother, little sister and Mr Morrow on the farm.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount. There are no issues of family violence in this case.
Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
In this case the presumption applies. I am not satisfied that one parent should have sole parental responsibility despite the difficulties the parties have had in consulting with each other. I am satisfied that both parents are at fault. They need professional assistance so that they can communicate and consult with each other effectively and start to protect X from their adult issues and the conflict. If they don’t then X is likely to suffer long term psychological harm. Both her parents love X dearly. I am satisfied neither parent wants X to suffer emotional harm but they have been focused on their conflict with each other and not how it impacts on X.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR & GR [2010] HCA 4, the High Court of Australia found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time.
Both parents acknowledge that an equal time arrangement is not practical because of the distance between their homes. It is also not possible for time to occur during the week for the same reason.
Court’s concerns about the parents
This is a finely balanced case. I have concerns about both parents.
My sense of the mother is that she has been determined to have X in her care and to that end has been keen to look for opportunities to take X into her care and to undermine the father. She has done this by over holding X, by talking to Ms P and encouraging X to keep secrets from her father. X is very aware that her mother wants to have her in her primary care and knows what her mother wants to hear. I suspect she is rewarded by the mother with her attention and sympathy.
On the other hand the father seems to be to some extent emotionally detached and unaware of what is going on for X.
I have concerns for X’s long term emotional well being regardless of the orders I make unless both parents take immediate actions to get counselling assistance to address their issues and to start focusing on X’s wellbeing rather than undermining each other.
One of the adjustments X is having to make currently is the father’s relationship with Ms T. She has to deal with two other children coming into the household. It is quite a different dynamic to having a new baby sister. It is not uncommon for parents to have to adjust to living in a blended family. This in itself is not a reason to change X’s living arrangements.
My sense of the father is that he is not as emotionally attuned as he could be. Neither parent appears to have taken on board Ms J’s comments about the conflict in her first report.
I suspect the father is somewhat rigid and expects others to agree with him and when they do not, he has difficulty. This was apparent with respect to his position with respect to (omitted) primary school in his belief that there was collusion and a conspiracy between the teacher and the mother and presumably now the principal as well.
I take into account what Ms A has recorded as contemporaneous notes of conversations with X. X’s expressed desire to live with her mother is consistent with what she has told the family report writer and Ms O.
The mother has done a parenting course recently. The father did one 11 years ago. The parents need more assistance than a parenting course. Ms J spoke of child focused counselling and said that if they do not do this they will not be able to move on. Due to the distance between the parties home it will be necessary to arrange for one of them to participate in counselling by telephone unless that parent is able to travel.
For the above reasons I make the orders appearing at the beginning of these reasons.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 20 December 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Injunction
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