Mullane & Burnham
[2021] FamCA 496
•9 July 2021
FAMILY COURT OF AUSTRALIA
Mullane & Burnham [2021] FamCA 496
File number(s): SYC 4673 of 2012 Judgment of: HENDERSON J Date of judgment: 9 July 2021 Catchwords: FAMILY LAW – PARENTING – Where the parties came to substantial agreement in relation to the parenting issues before the Court – Where the Court is required to determine discrete issues relating to the father’s time with the child on father’s day and during school holidays – Where there exists a poor co-parenting relationship between the parties – Where the mother opposes an order allowing the father to spend time with the child for longer than a block period of five nights – Consideration of the best interests of the child – Orders made for the child to spend time with the father in school holiday periods gradually increasing to half of the school holidays in 2023. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC Cases cited: Goode v Goode (2006) FLC 93-286 Number of paragraphs: 80 Date of hearing: 24-25 May 2021 Place: Sydney Counsel for the Applicant: Mr Jackson Solicitor for the Applicant: Holmes Donnelly & Co Solicitors Counsel for the Respondent: Ms Conte-Mills Solicitor for the Respondent: Fay Rose Legal Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 4673 of 2012 BETWEEN: MS BURNHAM
ApplicantAND: MR MULLANE
Respondent
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
9 JULY 2021
THE COURT ORDERS BY CONSENT AND ON A FINAL BASIS THAT:
1.That all previous parenting Orders be discharged.
Parental responsibility
2.That the mother have sole parental responsibility for B, born … 2008, (“the child”) provided that the mother:
2.1.notify the father of any proposed decision relating to the long-term care and welfare of the child, including but not limited to:
2.1.1.proposed decisions about which school the child shall attend
2.1.2.proposed decisions about elective surgery, treatment of chronic conditions, OT therapist visits, orthodontic treatment and other long term medical issues affecting the child;
and ensure that such notification is given to the father in writing and is given not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency.
3.That each parent shall have responsibility for making day-to-day decisions concerning the care, welfare and development of the child whilst he is in their respective care.
The child's time with the parents
4.That the child shall live with the mother.
5.That the child spend time with the father as follows:
During School Terms
5.1.During school terms, each alternate weekend commencing the first Friday of each school term: from the conclusion of school on Friday, or 4.00pm if not a school day, until the commencement of school on Monday, or 5pm if not a school day.
On special days:
6.That notwithstanding any other Order herein, the child shall spend time with the parents as follows:
6.1.With the mother on the weekend of Mother's Day from conclusion of school the last school day preceding Mother's Day until the commencement of school on the Monday immediately thereafter.
7.That in the event a parent is concerned that the child is too unwell to travel to spend time with the other parent, that parent seek urgent medical advice with respect to the child's condition and his ability to travel, and provide that information to the other parent.
8.That in the event a child is unable to travel to spend time with a parent in accordance with these Orders, the parents are to agree in writing regarding the arrangements for the child to have 'make up' time for missed time spent with that parent, within thirty (30) days of the missed time.
Changeover
9.That changeover shall take place at the child's school when the child's time with the parents commences at the beginning or end of the school day.
10.That when changeover is to occur on a non-school day, changeover shall take place at the Suburb S McDonalds or the McDonalds Restaurant closest to Suburb S should that restaurant become unavailable.
Medical and Emergency
11.That mother shall do all acts and sign all documents necessary to cause the father be listed as a second contact and as an emergency contact on all forms, registrations and enrolments in relation to the child.
12.Each parent shall promptly provide to the other:
12.1.Details of any medical, therapeutic or other allied health appointment which the child is required to attend and/or treatment prescribed by such practitioners for the child, via short text message on the same day the appointment occurs;
12.2.The names and contact details of any medical, therapeutic or other allied health practitioner upon whom the child is required to attend, upon request; AND this order operates as an authority for each parent to obtain from the named providers, any medical, therapeutic or allied health practitioner information about the child's diagnosis, treatment and care.
13.That both parents shall follow the treatment recommendations made by any medical or allied health practitioners in their respective households.
14.If any medication is prescribed for the child, this medication or the prescription for the medication, must be provided to the other parent if that parent is required to be administering it to the child when the child is in that parent's care.
15.That unless otherwise agreed between the parents in writing, the parents shall use their best endeavours to ensure the child attends all regular and ongoing appointments outside of school hours.
16.That the parents and the child continue to attend upon Mr H, the family therapist, as recommended and directed by Mr H. In the event that Mr H requires the attendance of the father with the child, the mother shall do all acts necessary to facilitate the child's attendance with the father, even if such attendance occurs within time the child would ordinarily be in the care of the mother pursuant to these Orders. To facilitate this the father will collect the child from school on the day of the appointment and the mother will collect the child from Mr H's office at the completion of the appointment.
School
17.That each party is hereby authorised to obtain from the child's schools all letters, notices, school reports and invitations and this Order shall act as an authority to those schools to release or otherwise provide such information to each parent.
18.That the parties are both at liberty to attend all school functions and events to which parents are invited including but not limited to; parent teacher nights, school carnivals, excursions, graduations, extracurricular activities and school assemblies and awards events.
19.If the child needs to go home sick from school, he is to go home with the parent that he is due to live with or spend time with in accordance with these Orders on that day.
Communication
20.That both parents advise and keep the other advised, within 48 hours of any change; of their respective residential address, mobile telephone numbers, email address, and any changes thereto at all times.
21.That the parents communicate with each other in relation to the child's welfare and development, and the parenting arrangements for the child only:
21.1.In the event of an emergency, by telephone; and
21.2.At all other times, in writing by SMS text message or email, provided that such communication is limited to current and factual issues regarding the child only.
Travel
22.That the child B born … 2008 be removed from the Family Law Watch List.
23.That each parent be permitted to travel with the child outside of the Commonwealth of Australia, provided such period of proposed travel takes place during the time the child is living with that parent pursuant to these Orders or unless otherwise agreed between the parties in writing via email and also provided that:
23.1.The destination of the proposed travel be a country that is a signatory to the Hague Convention; and
23.2.The destination of the proposed travel is a country recognised on the 'Smart Traveller' website as 'safe to travel to'; and
23.3.So far as practical the occasions on which the parent takes the child out of Australia are to coincide with the school holidays of public schools in New South Wales; and
23.4.The parent proposing such holiday shall notify the other parent no less than 60 days prior to the departure date of such proposed trip, and shall provide to the other parent at this time:
23.4.1.Particulars including the proposed itinerary and proposed period of such trip;
23.4.2.At least 30 days before departure, a final itinerary including contact telephone numbers and full street addresses of where the child will be staying;
23.4.3.Copies of return airline tickets and details of flights once booked and irrespectively at least 10 days before departure.
Child's Passport
24.That the mother shall retain the child's passport.
25.That no less than 6 months prior to the expiration of the child's passports, the parties do all acts and things necessary to renew the passport and that the parties shall share one half each of the standard passport renewal costs;
26.That upon the father giving notice and a general itinerary to the mother of their proposal to travel out of the Commonwealth of Australia in accordance with Order 21.4 herein, the mother shall release the passport they hold of the child to the father not less than 21 days prior to the notified date of departure and the father shall return the passport to the mother within 7 days of returning from any travel with the child in accordance with these orders.
Injunctions
27.That, without admissions, each parent shall be restrained from:
27.1.Denigrating the other parent, their respective partners, family or friends, directly or in the presence or hearing of the child, and will use their best endeavours to ensure that no-one else does so and shall remove the child from any environment in which degradation is occurring;
27.2.Passing information or messages to the other parent through the child;
27.3.Physically disciplining the child;
27.4.Discussing the family law proceedings or any other legal proceedings in which either parent has been involved in the presence or hearing of the child or permitting any other person to do so.
27.5.Disrupting the child's time with the other parent pursuant to these Orders and in the event that one parent considers a change, disruption or suspension in time necessary, that parent will discuss these reasons with the other parent. In the event the parents cannot agree, the concerned parent is to approach V Services to organise a mediation to help the parties determine a suitable outcome for the child. If an agreement cannot be reached the concerned parent is open to apply to the court to change the Orders.
27.6.From approaching the other party or member of their household, other than in accordance with or in the facilitation of these orders, or with the express written consent of the other party.
27.7.From attending the other parent's home or place of work, or the workplace of a member of the other parent's household, unless specifically invited by the other parent to do so in writing.
28.That, in the instance of any pandemic and health warnings issued by the NSW state government, both parents must adhere to any restrictions and isolation measures announced, so that the child can safely travel between both household's and protect household members who are high risk of serious complications from COVID-19.
29.That without admissions and pursuant to Section 68B of the Family Law Act 1975, both parents are restrained by injunction from attending the other parent's home unless specifically invited by that parent to do so in writing.
Other
30.That both parents use their best endeavours to foster the child's relationship with the other parent.
31.That neither parent shall enrol the child in an extra-curricular and/or sporting activity that will take place in the other parent's time with the child without first having notified the other parent in writing.
32.That each party shall endeavour to ensure that the child maintains his social, educational, sporting and any agreed extracurricular commitments during the times when they are with that party and each party shall provide the other with all necessary details and rosters for such activities as soon as is reasonably practicable.
33.That where the parent who does not have the care of the child wishes to attend a school event, extra-curricular activity and/or sporting event involving the child, then that parent shall give not less than 24 hours' prior notice of their intention to attend the child's event and will not approach the other parent at these events.
34.That pursuant to s 121(9)D of the Act, the parties are each at liberty to provide a sealed copy of these orders to the child's schools and health care providers.
35.That pursuant to s 65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
36.That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto
THE COURT FURTHER ORDERS ON A FINAL BASIS THAT:
37.The father’s alternate Thursday night time with the child is to continue until the cessation of the 2021 school year.
Father’s Day
38.Notwithstanding any other order herein, the child spend time with the father as follows:
38.1.On the weekend of Father’s Day 2021 from the conclusion of school on the last day preceding Father’s Day until the commencement of school on the Monday immediately thereafter with this time to be suspended from 11am to 5pm on the Saturday of the Father’s Day weekend 2021 when the child shall spend time with the mother with changeover to occur at McDonalds Suburb S.
38.2.On the weekend of Father’s Day 2022 from the conclusion of school on the last day preceding Father’s Day until the commencement of school on the Monday immediately thereafter with this time to be suspended from 11am to 5pm on the Saturday of the Father’s Day weekend 2022 when the child shall spend time with the mother with changeover to occur at McDonalds Suburb S.
38.3.From 2023 and each year thereafter, on the weekend of Father’s Day from the conclusion of school on the last school day preceding Father’s Day until the commencement of school on the Monday immediately thereafter.
School Holidays following Terms 1, 2 and 3
39.The father’s alternate weekend time as per Order 5 is suspended during the mid-term school holidays and the child shall spend time with the father:
39.1.For the first weekend of each school holiday period following Terms 1, 2 and 3 in 2022, from the cessation of school to 9am the first Monday of the school holidays, with the parents or their agents to meet at McDonalds Suburb S on Monday.
39.2.For a period of five nights in the second half of each school term holiday following Terms 1, 2 and 3 in 2022, from 9am Monday to 9am the Saturday before school resumes, with the parents or their agents to meet at McDonalds Suburb S, and with the father's alternate weekend time as per Order 5 to resume the second weekend after school resumes in each school term.
39.3.Commencing from 2023 and each alternate year thereafter, the first half of each school term holiday following Terms 1, 2 and 3 commencing from the cessation of school Friday to 12 noon on the middle Sunday of the school holidays, with the father's alternate weekend time as per Order 5 to resume the first weekend after school resumes in each school term.
39.4.Commencing from 2024 and each alternate year thereafter, the second half of each school term holiday following Terms 1, 2 and 3 commencing from 12 noon the second Saturday of the school holidays to 12 noon the third Saturday of the school holidays, with the father's alternate weekend time as per Order 5 to resume the second weekend after school resumes in each school term.
Christmas school holidays
40.The father’s alternate weekend time as per Order 5 is suspended during the Christmas school holidays and the child shall spend time with the father:
40.1.In 2021, from the cessation of school until 3pm Boxing Day and for a further period of five nights from 9am 12 January 2022 until 5pm 17 January 2022 with the parents to meet at Suburb S McDonalds and with the father’s alternate weekend time as per Order 5 to resume the first weekend after school resumes.
40.2.In 2022 and each even year thereafter, from 3pm Boxing Day for a consecutive period of ten nights until 5pm 5 January 2023 with the parents to meet at Suburb S McDonalds and with the father’s alternate weekend time as per Order 5 to resume the first weekend after school resumes.
40.3.In 2023 and each odd year thereafter, from the cessation of school until 3pm Boxing Day and from 9am the second Saturday of January until 6pm the third Sunday of January with the father’s alternate weekend time as per Order 5 to resume the second weekend after school resumes.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mullane & Burnham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This is a parenting matter concerning the parenting arrangements for the parties’ child B (“the child”), born in 2008, currently aged 12 years. B has always lived with his mother Ms Burnham (“the mother”). There were orders in place for B to spend time with his father, Mr Mullane (“the father”) made in December 2012 each alternate weekend from Friday to Sunday. Those orders were varied, and the father's time was reduced to supervised time in June 2013.
Final orders were made by Judge Walker on 23 July 2014 for B to live with his mother, for her to hold sole parental responsibility, and for him to spend time with his father each alternate weekend from Friday until before school Monday, and each alternate Thursday after school until Friday.
Mr Mullane was required to undertake a course, “Taking Responsibility”, run by V Services, and both the parents were required to attend family therapy. On 27 April 2016, the father brought an application seeking to reopen the parenting matter and this application was dismissed by the then McClelland J on 14 July 2016. A Mr H was recommended to assist the parents in managing B's emotional issues in the context of family law proceedings. Mr Mullane was ordered to pay costs. Mr Mullane has filed eight contraventions since that time, none of which have been successful.
On 2 May 2018, the proceedings were transferred to the Family Court of Australia by which time B was spending very little, if any, time with his father. By 30 January 2019, it was ordered that B's time with his father be resumed, and B has been spending alternate weekends with his father since that time.
To their credit, the parents came to agreement in relation to the substantial issues before the Court, and those orders were made by consent on 25 May 2021. They provided for B to continue to live with his mother, she to hold parental responsibility but notify the father of the decision she was to make 28 days before making them, and the issue of school holiday and special occasion time together with some other minor issues, although important issues to the parents, were left to me to resolve including the father seeking his time each alternate Thursday night continue and the mother seeking it cease.
I read to assist me in this matter an initial family report prepared by Dr E released on 16 September 2013, and a family report prepared by Ms Q on 11 March 2020.
Both the mother and father were cross-examined and had provided additional information to that contained in their affidavit about the specific issues before me such as holiday time. The father's affidavit is replete with criticisms of the mother. It was a difficult document to read. There was not one positive comment the father made about the mother. He has an exceedingly negative attitude towards her as a mother, and as his son’s parent. Going to his affidavit, the negative attitude the father has of the mother also extends to his current wife as was apparent from the family report.
The material I read for the parties was as follows.
For the mother:
(1)The mother’s Initiating Application filed 29 March 2018; and
(2)The mother’s trial affidavit filed 20 May 2021 with exhibits.
For the father:
(1)The father’s trial affidavit filed 12 April 2021 with exhibits.
The following documents were tendered:
(1)Court exhibit 1: The first report prepared by Dr E dated 9 September 2013;
(2)Court exhibit 2: The second family report prepared by Ms Q dated 11 March 2020;
(3)Mother’s exhibit 1: A colour-coded aide-memoire of the minor differences in the parties’ proposals;
(4)Mother’s exhibit 2: The mother’s case outline;
(5)Mother’s exhibit 3: A photocopy of a handwritten document outlining issues for cross-examination titled ‘Further evidence of the mother”;
(6)Father’s exhibit 1: The father’s case outline; and
(7)Father’s exhibit 2: A handwritten document outlining issues for cross-examination titled “Burnham & Mullane”.
The father complained that the child's school attendance was poor at paragraph 103 of his trial affidavit, yet his school reports indicated he is doing well at high school. B suffers from attention deficit hyperactivity disorder (“ADHD”) and also suffers from a rare medical disease, as does his mother, and has some vulnerabilities. B lives with his mother and his sister, C, who is aged eight. Mr D is C's father and Mr D and B have a very good relationship, and he attends time with Mr D on alternate Thursdays when his sister spends time with her father. The parties live close to each other.
The father has re-partnered and is married to Ms Mullane. They have two children: F, born in 2014, and X, born in 2017. F also suffers from ADHD and has some disabilities. Both the father’s sons have some degree of behavioural vulnerability. The father maintains in his affidavit that his son F, B's brother, suffers significantly from not being able to spend time with his big brother. However, the child clearly has greater issues than that and it was a concern that the father endeavoured in some way to blame F’s difficulties on B’s mother.
The father complains there has been no telephone time between him and his son, that the mother has taken the child out of school to prevent him spending time with the father. The mother travelled to P City in June 2018 and Mr D cared for B. The father did not care for him. The father said in 2018 B told him he hates his new school. That the mother neglects his psychological and physical health but has continued to facilitate time for B with Mr D and not the father.
The father minimised the impact upon the mother and B of the incident which caused the fracture in his time arrangement with his son, which occurred at Easter, 17 April 2017. The father says at paragraph 34 of his trial affidavit:
B spent time with me in accordance with the 2014 Orders at Easter in 2017. On Easter Monday, 17 April 2017 B was with us on a camping holiday. B was playing with a stick in the ashes in the fireplace. The fire was put out at 10.00pm the night before, when Ms Mullane and I went to bed. This was in line with the campsite rules. The fire had been out for at least 12 hours before B started playing with a stick by poking the fireplace. While carelessly playing with the stick, B scratched F with the stick. F became scared and upset. I calmed F down first and then took the stick from B. I held the stick to my own hand and felt that it was not hot. I then touched the stick across B’s right index fingertip to get his attention and firmly stated “You need to be careful around your little brother.” I did this because B had been careless around the fire several times during the past few days.
(Emphasis in original)
The father said B had sustained superficial burns to the palm of his left hand earlier, and the father denied that these burns occurred by him purposely burning B with a stick. This is not what the mother said B told her. The mother said B told her that his father burned him with a stick because he had accidentally burned F, and that it hurt.
Mr H was interviewed by the family consultant who prepared the report. He said the mother can be unrelenting in her anxiety to protect B from threats which are sometimes blown out of proportion. For example, the burning him with a stick incident in 2017 as B did not appear to be hugely impacted by the incident however his mother was. Mr H described the father, at paragraph 99 of the family consultant's report, as:
…controlling in his attitude towards [the mother], relentlessly seeking out reasons to attack her, and constantly seeking confirmation from him about whether she has attended appointments and at what times. He said that Mr Mullane may also exhaust other services like the school and health professionals in his zeal to find evidence of school absenteeism and failure to attend appointments.
He also thought Mr Mullane could use court proceedings to continue to “coercively control” the mother “even though he had to pay both their legal costs in 2016”. The eight Contravention Applications he filed, none of which have been successful, may be testament to that attitude. The father does relentlessly pursue. He has an exceedingly negative attitude towards the mother.
The father told the family consultant, at paragraph 77:
…he has evidence that [the mother] has been working as an escort because of advertising photographs of her that he has seen online. He said that the escort work explains how [the mother] could afford a recent holiday to North Queensland …said that a mutual friend also sent him a recent Tinder photograph of [the mother] with B sitting on her lap.
At paragraph 75 of the family report, the father said:
…[the mother] spent five weeks in a rehabilitation hospital in 2018 following a trip to P City …
76. …[the mother] used to take cocaine with her previous partner two years ago. He said that he has copies of messages between [the mother] and her former best friend which provide evidence of the drug use. [The father] said that he also has copies of messages which confirm that Mr D removed the children from her care at that time.
The father said she is a “neglectful” parent who has neglected her child's medical and psychological needs. At paragraph 71 of the family report, the father expressed concern that the child did not receive weekly occupational therapy sessions as was recommended in 2019.
The father believed at the time of the report in March 2020, some 15 months ago, that B should be living with him because he would be able to offset the mother's poor record of getting B to school and his specialist appointments.
Ms Mullane, the father's wife, was also interviewed. Her interview starts at paragraph 88 of the report. She says that B has punched her son in the head, choked him with his hoodie, kicked him, kicked a boy at school and that he struggles to interact at school. That is not the case now. There is no doubt, and it has been reported by Mr H, since he has resumed time with his father B's progress has been pleasing and his behaviour has settled down and he is now nearly 13 years of age. F has issues, his mother said. He has ADHD like his big brother and he struggled to adjust to school as did B. However, B is very kind and sweet with his little sister X.
The difficulty in this matter is that B has matured and his behaviour has improved but his parents are stuck as ever in terms of not seeing the other as a capable parent. The father is far more pejorative of the mother than is the mother in relation to the father. B's anxiety had reduced since spending regular time with his father. He appears more emotionally mature and resilient and was coping with transitions from one house to another. His engagement at school and in other activities improved and both parents have done a good job in connecting him to positive extracurricular activities, as expressed by Mr H at paragraph 98 of the family report to the report writer.
At paragraph 101, Mr H said:
…each parent gets easily fired up by things they hear about the other parent…given the history of entrenched conflict, it is unlikely that the parents will ever be able to cooperate with each other…
The mother admitted that she had been engaged in escort work and took serious drugs in 2016 but at that time her mental health was spiralling. That she has worked hard since to focus on self-care, her parenting role and her career prospects. That she rarely goes out, agreeing she had a holiday to Town R paid for from the proceeds of a car left to her by her deceased father.
In relation to the father complaining about not taking B to occupational therapy appointments in 2019, the mother explained that the practice manager at W Services raised concerns with her regarding the excessive and irrelevant emails they were receiving from the father. They were taking up the therapist's time, and it was viewed as an attempt to undermine the information the therapist was providing. It is clear that the father has used other people in an endeavour to find information out about the mother, coerce and control the mother and generally undermine her parenting, consistent behaviours with Mr H’s assessment of the father.
The report writer said B was pleased to see his father, his stepmother, and his brother and sister. At B’s interview with the family report writer at paragraph 109 he said that in the past he has been yelled at by Ms Mullane when he voiced his thoughts and his concerns.
B said now he does not worry about what other people think. He is not bullied at school anymore and he has a small group of friends. He loves his mother's home. He feels safe and he can tell his mother anything. It is his “favourite place to be”. He described his mother, at paragraph 112, as a “very good Mum” and that he would prefer to spend more time with her. He added his father is not a “really bad Dad”, but he can sometimes lose his temper and it's “always rushed and hectic at his father's house”. He said he is not physically chastised by his father. He thinks X, his little sister, has a cute face and he likes playing with her but that F has always been annoying.
That F seems to enjoy getting into trouble and he is always being grounded. Thus the father and his wife may well experience difficulty in managing their son’s behaviour at times. This behaviour does not lie at B’s mother’s feet. It is who F is, as was B earlier in his life.
B said when he stays at his father's house he counts down the days before he can return to his mother's. School holidays were worse because the time is longer.
At paragraph 114 B explained he became upset when he was promised $10 by his father to mow the lawn and when he completed the lawn, Ms Mullane said “no to any pocket money” because “she does not get any money for doing chores”. He said that Ms Mullane also talks badly about his mother and that she complained recently that his mother should have told them in advance that it was a swimming carnival day.
He knows his parents don't talk to each other. That his mother is always calm but his father can “lose his temper”. B said, at paragraph 115, that he “freezes” when his father or Ms Mullane ask him questions because he might get into trouble or he might get his mother into trouble. His wishes were this:
…for there to be no more Court, his second wish was for his father to be less argumentative, and his third wish was to get more time at his mother’s house. B added, however, that he does like spending some time at his father’s house…
The mother, Mr H says, has valid reasons for feeling coerced and controlled by Mr Mullane. I observed that behaviour in the witness box. He was truculent, surly, and unable to focus on his son's needs. Rather, here to prove a point that he has been a father poorly treated.
Dr E’s report was particularly critical of the father. He said, at paragraph 258:
In terms of antisocial traits, the father has shown a pattern of disregard for and violation of the rights of others including through aggressive, violent, destructive and reckless behaviour. He has repeatedly performed acts that are ground for arrest. He has engaged in unlawful behaviours, deceitfulness, irritability and aggression, irresponsibility and lack of remorse. He is impulsive, and can fail to plan ahead. He can show reckless disregard for the safety of himself or others.
At paragraph 261:
The police history includes episodes of violence to intimate partners (where the father can experience intense aggrieved distress) and to strangers (with whom the father has no relationship to preserve). There is no history of violence to “mates” or to extended family, which in my view is because the father’s focus on maintaining his positive image in these circles contains any vulnerability to aggression.
At paragraph 291 to 292:
In my view, the relationship between the parents prior to and since separation has been characterised by a pattern of family violence perpetrated by the father against the mother.
292. It is important to note that in using the term “family violence” I am not suggesting that the father has necessarily been physically violent to the mother, though I think that he likely has been so. I am using this term as it is commonly used in clinical practice and in the clinical and social sciences literature (interchangeably with the term “domestic violence”) to denote a pattern of behaviour within a family relationship that is coercive, intimidating, disrespectful, and harmful to the other.
Most concerningly, Dr E's report says, at paragraph 313, about the father and his current wife, Ms Mullane:
I am concerned that if the father’s and the couple’s underlying vulnerabilities are not addressed, there is a significant risk of escalation into a more day-to-day pattern of family violence when:
313.1. The court matters are completed, and the father-mother relating becomes more ordinary
313.2 The father-father’s partner couple have a child. This will place much greater demand on the father’s partner and pressure on the father to be flexible and other-focussed. I note that the incident in April 2013 was triggered by the father’s partner’s aggrieved stance at the father returning home late and not cleaning the house. Such incidents are commonplace in couples with young children. I see no evidence that the father has acknowledged or addressed the vulnerabilities that led him on that occasion to escalate to the point where the father’s partner felt the need to depart, and he was threatening to or pretending to destroy the couple’s property.
He went on to say that the child would be at a risk of being exposed to a pattern of family violence in his father's home, given the nature of the relationship with the father and his wife Ms Mullane.
The COPS entries show that the father pled guilty to assaulting his wife Ms Mullane in April 2015 in relation to an incident on 27 January 2015 where he held her arms down and would not let her leave the garage. F, who was 9 months of age, was present. It was a violent event. The father said to me, “I did not assault Ms Mullane” when he pled guilty to such an event. That conduct was an assault on his wife. This was consistent with Dr E's concerns as to the behaviour between Ms Mullane and the father escalating when they had a child and the very thing he referred to at paragraph 313 of his report came to fruition.
Secondly, the mother says on or about 4 August 2016 B said to her, as contained within her proof of evidence, mother’s exhibit 3:
Mum, Ms Mullane and dad were fighting and she was upset. She said she did not want me. I heard her yell to dad that she was suicidal. Is suicidal a swear word?
The mother said B also said to her:
Ms Mullane also said she was divorcing Dad because he was more considerate about me than her, and F. Ms Mullane gave dad conditions if she stayed that Dad was only allowed to see me once a month.
(As per the original)
The mother is concerned that after the court proceedings were over and final orders were made in 2014 that what Dr E predicted might occur, mainly B witnessing family violence in his father's home, which has, in fact, occurred.
The mother says with a child with his vulnerabilities, and with the behaviour she experienced at the hands of the father, she is most concerned that this could continue. Thus, although we only have issues of school holidays, they are important. The mother's issue in relation to school holidays is that B should have no more than five nights with his father in the long school holidays. She does not agree to half-half at that time. But will agree to a ten night period if the father is going away on a holiday or a vacation somewhere, and she receives an itinerary, then she will agree. The father seeks, effectively, half-half for simplicity and so that the parties do not have to negotiate having regard to the age of his son.
The second issue I am to determine is what happens at Christmas and whether it continues to be shared in some way. Is it broken up into a shorter period of time or a longer period of time? The mother seeks that B still see her and his father around Christmas. The father says that each alternate Christmas one parent will not see their son.
The third issue, which is only an issue for two years, is that B’s birthday will fall on the Father's Day weekend this year and Father's Day next year - actual Father's Day - and the mother would like to see B on his birthday. Changeover is an issue. Parents generally changeover at school. They have agreed, if they do not changeover at school, they will changeover at McDonalds Suburb S. Despite the father having an implacably negative attitude towards the mother, the mother is agreeable to the child spending alternate weekends with his father as he has been doing, extending to Monday to school.
The fourth issue is the cessation or continuation of the alternate Thursday nights.
In relation to holiday time, I am being asked by the mother to look at the nuances in this matter and assess the risk to her son from being in his father's care for longer than five nights, something he has never had the advantage of or experienced. There is no doubt that has been a difficulty and this short period does compromise the father being able to take B away with his brother and sister for an extended holiday, such as to his wife's father's property in Victoria or any other place parents take young children on Christmas holidays. Although, I agree, the father did not raise this in his affidavit, I take notice of the fact that parents do take children on long holidays at Christmas. That is a common feature of Australian life.
However I, too, am concerned that the father's attitude to the mother and the nature of the relationship of the father and his wife and their manner of dealing with each other may expose this boy to some poor behaviours and he may be exposed to family violence. What the family consultant said about that, at paragraph 138 was:
In terms of [the mother’s] concern…that [the father] may become physically aggressive towards B once he becomes a teenager and once Court proceedings are over, there does not appear to be any current evidence of this. B engaged in robust, confident and somewhat cheeky communication with his father during the observation and B did not express any fear of physical aggression from his father in his interview. Mr H also commented that B does not express any fear of his father in his sessions.
The family consultant was wrong in suggesting that the mother “is seeking to reduce B’s time with [the father] on the basis of these possible future concerns”. The mother was not trying to reduce the father's time, it is the holiday time that she was concerned about. The family consultant’s comment at paragraph 138 that, if B experiences physical aggression with his father in the future, the “issue can be dealt with at that time, either with the assistance of the police or…Mr H” was not particularly helpful. This was not the thrust of the mother's application before me. It was B, rather, witnessing his father and his wife engaging in poor behaviour. However, at paragraph 139, the family consultant said she did not believe that B was at a risk of emotional harm from his father and there was not a strong basis for the mother’s concerns. That her recommendation was the father and his wife need to talk more about B's mother in positive terms and that is correct. However I find that they won't be able to do this as both have an implacably negative attitude towards her.
The family report writer commented at paragraph 139 that the father and his wife “expressed somewhat superior views about their parenting skills” compared to the mother and, clearly, this would come across to B. What the family consultant observed was the mother showing a “high level of parenting competence” whereas the father was “somewhat chaotic and lacking at times in parenting management”. The risk of harm to B from physical, direct aggression from his father is low. His father would not harm him. His father's wife would not harm him. They love the child. They want to spend time with him. However there is, still, a lingering risk that the father's relationship with and the manner by which he and his wife communicate and deal with each other in stressful situations, of having to deal with F’s behavioural difficulties, that B may, unwittingly, be exposed to their anger and aggression towards each other and the mother’s concerns have sound basis.
THE LAW
The Full Court in Goode v Goode (2006) FLC 93-286 (Goode) at 80,889 set out the pathway I am to follow when making a parenting order:
…[I]n deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration…[t]he objects and principles contained in s 60B [of the Family Law Act 1975 (Cth)] provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.
The Full Court further said in Goode at 80,895:
… even if the presumption of equal shared parental responsibility is not applied and neither party seeks an order for equal time (or by implication substantial and significant time), the Court is nonetheless required to consider, in determining what is in the best interests of the child, the arrangements that will promote the child’s best interests.
The objects and principles contained in section 60B of the Family Law Act 1975 (Cth) (“the Act”) are 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 development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Further, the child’s best interests are the paramount consideration in making a parenting order as per section 60CA of the Act.
Primary considerations under s 60CC(2) of the Act
The primary considerations under s 60CC(2) of the Act that I am required to consider in determining what orders are in B’s best interests are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations under s 60CC(3) of the Act
The additional considerations under s 60CC(3) of the Act that are relevant to this matter are:
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
[…]
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Going now to the facts and applying these principles to the facts.
It may be for this next year, while B is settling into a pattern of regular time with his father, including holiday time, the Court should take a cautious approach including maintaining the alternate Thursday night time. However by 2022 when B will be approaching 14, the risk the mother sees from longer time with his father in the school holidays must be minimised by his age, the development he has shown and the development his father has shown in 2021. The benefits to B of spending extended time with his father’s family in the holidays would outweigh any risks to him.
Further, the need for a child to spend time with a parent each week, as here an alternate Thursday night, becomes less important to the child and may be disruptive to his schooling and other activities. This is particularly so if the father’s time in the school holidays is to be extended as I propose to do.
B currently spends the other Thursday night with Mr D and his sister C and that will be a sufficient disruption to his school week into the future. To take that experience away from B would not be an order in his best interests.
I have formed the view that, given B’s birthday falls on the Saturday of the Father’s Day weekend, the mother will have five hours with B on his birthday, being Saturday, from 11am to 5pm. The parents are to meet at McDonalds Suburb S. Otherwise, he is with his father for the entirety of the Father’s Day weekend.
In 2022, when B's birthday falls on the Sunday, the mother may again have time with her son the day before his birthday from 11am to 5pm. Otherwise, B will spend time with his father on Father's Day.
The fact he is not with his mother precisely on his birthday will not be, for this child at age 14, a difficulty. I am cognisant of the fact that for many years the father has not spent time with B on his birthday and the mother has always had that benefit. It is now time, with B's maturation and his pleasing development in his mother's care, that he is able to spend that important time with his father and his father's family.
In relation to Easter, I have formed the view that for 2022 and thereafter, if Easter is outside the school holidays, Easter lies where Easter lies. If it is the father's weekend, he has the benefit of that long weekend. If it is the mother's weekend, she will have the benefit of that long weekend.
Again, if Easter is within the school holidays it too will fall where it falls. B is well able to spend time away from his mother and it is certainly preferable that changeovers between the parents are minimised. B will be approaching 14 in 2022. I will not further interfere with these arrangements for a child who is now almost 13 and, in 2022, will be approaching 14.
Going to school holidays.
The mother seeks I make orders in accordance with her minute of order that B only have five nights in his father's care during the mid-term school holidays.
I have formed the view, for simplicity, that I will suspend the operation of the alternate weekend time in all school holiday periods commencing 2022.
The father is to have time with his son the first weekend of each school holiday period in 2022, from the cessation of school to 9am the first Monday of the school holidays, with the parents or their agents to meet at McDonald's Suburb S on Monday.
The father is to have five nights of time with the child in the second half of each school term holiday in 2022, from 9am Monday, to 9am the Saturday before school resumes, with the parents or their agents to meet at McDonald's Suburb S.
The father’s alternate Thursday night time will cease in 2022.
Thereafter, and commencing from 2023 when B will be 14 and approaching 15 years of age in 2023, the father to have the first half of all term school holidays, commencing from the cessation of school Friday, to 12 noon on the middle Sunday of the school holidays, with the father's alternate weekend time to resume the first weekend after school resumes in each school term in odd numbered years and in even numbered years from 12 noon the second Saturday of the school holidays to 12 noon the third Saturday of the school holiday with the father's alternate weekend time to resume the second weekend after school resumes.
Going now to the Christmas school holidays.
In relation to Christmas school holidays, the father's alternate weekend time is suspended.
For 2021, the father shall have time with the child from the cessation of school until 3 pm Boxing Day, and for a further period of five nights from 9am 12 January 2022 until 5pm 17 January 2022, with the parents to meet at Suburb S McDonalds. The father's alternate weekend time with the child is to resume the first weekend after school resumes.
In 2022, and each alternate year thereafter, the father is to spend time with the child from 3pm Boxing Day, for a consecutive period of ten nights, and he is to be returned to the care of his mother by 5pm, 5 January 2023, with the parents to meet at Suburb S McDonalds. The father's time with the child to resume the first weekend after school resumes.
In 2023 and each alternate year thereafter, the father to have time with the child from the cessation of school until 3pm Boxing Day, and then from 9am on the second Saturday of January 2024 until 6pm the third Sunday of January 2024, with the father’s weekend time to commence the second weekend after school resumes.
I have made these orders to give the father an opportunity to spend significant time in the school holidays with his son, commencing 2022. I am cognisant of the mother's concerns, and I take them on board. However, when her son is 14 approaching 15, it will be time for him to spend half holidays with his father in the school term and longer periods at Christmas. I have taken into account the father's proper approach that the date should be fixed, so that the parties do not have to negotiate. To allow these parties to negotiate would be a disaster.
B will be well old enough to not spend time on Christmas with either parent, and there is no right for his mother to spend time with her son on his birthday every year. I note the parents have agreed that the child may communicate electronically with each of them on any occasions he wishes so to do. The father is on notice: if he continues, and/or he and his wife continue, to be negative about the mother in their household when B is present, or they behave poorly and subject this child to adult fighting, it may well be that the father's precious time with his son will cease and no court will be able to resume that time. The father must now behave appropriately with his son, and that includes being positive about his mother when B is in his care.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 9 July 2021
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Consent
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Injunction
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