NAVA & DEMPSEY
[2018] FCCA 4040
•13 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAVA & DEMPSEY | [2018] FCCA 4040 |
| Catchwords: FAMILY LAW – Parenting proceedings - future care arrangements – ex tempore reasons – conduct of child-related proceedings – consideration of special needs of the child – historic unilateral retention of child from Mother’s care – mental health issues found not to negatively impact or disadvantage the child – where it is determined there are no risk issues to the child in the care of either parent - need to foster sibling relationships – child’s awareness of ongoing conflict – best interests of the child – benefit of both parents having a meaningful involvement in child’s life – right to know and be cared for by both parents – right to know and be cared for by others of significance to the child – where presumption for equal shared parental responsibility is deemed to apply – weight given to child’s views – where child’s views are deemed not to be without influence. |
| Legislation: Family Law Act 1975 (Cth), ss.60B; 60CA; 61DA; 65DAC; 65F; 69ZN |
| Cases cited: Goode & Goode (2006) FLC 93-286 Other sources: Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) |
| Applicant: | MS NAVA |
| Respondent: | MR DEMPSEY |
| File Number: | PAC 2768 of 2017 |
| Judgment of: | Judge Harman |
| Hearing date: | 12 & 13 December 2018 |
| Date of Last Submission: | 13 December 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 13 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Loumis |
| Solicitors for the Applicant: | Legal Aid NSW Penrith |
| Counsel for the Respondent: | Ms Murphy |
| Solicitors for the Respondent: | Rosetta Lo Presti |
| Counsel for the Independent Children’s Lawyer: | Mr Maddox |
| Solicitors for the Independent Children’s Lawyer: | Shedden & Associates |
ORDERS
The parents shall, subject to the balance of these orders, have equal shared parental responsibility for their child, X born 2011.
X shall live with his Mother.
X shall spend time with his Father:
(a)Each alternate weekend during school terms from after school Thursday until before school Monday (Tuesday if Monday is a pupil-free day, public holiday, or non-school attendance day) commencing the first Thursday in Term 1 2019 and thereafter recommencing on the first weekend of each school term;
(b)In each alternate week during school terms, from after school Thursday until before school Friday, commencing on the second Thursday of Term 1 2019, and thereafter recommencing on the second Thursday of each school term;
(c)For the second half of each short New South Wales school holiday period (being those following Terms 1, 2 and 3) from 5pm (6pm during daylight savings) on the middle Saturday of the school holiday period, until 5pm (6pm during daylight savings) on the last Sunday of the holiday period.
(d)For one half of the Christmas school holiday period in each year, alternating between the second half in 2018-19 and each alternate year thereafter, and the first half in 2019-20 and each alternate year thereafter, and with respect to those holidays:
(i)The first half of the school holidays shall commence 10am on the day after the last day of school attendance Term 4 and concludes 6pm 9 January; and
(ii)The second half of the holiday period shall commence 6pm 9 January and concludes 6pm on the Sunday before the first day of school attendance Term 1.
(e)For the Father’s Day weekend in each year from the conclusion of school Friday until the commencement of school the following Monday;
(f)For a period of time on X’s birthday, from 3pm until 6pm if a school day, and from 1pm until 6pm if a non-school day;
(g)From 5pm Christmas Day until 7pm Boxing Day in each even-numbered year (being 2018, 2020 etc.);
(h)Such further and/or other periods as agreed between the parents from time to time.
X’s time with Mr Dempsey is suspended and Ms Nava shall spend time with X for each of:
(a)The Mother’s Day weekend in each year from the conclusion of school Friday until the commencement of school Monday;
(b)From 5pm Christmas Day until 7pm Boxing Day in odd-numbered years (being 2019, 2021 etc.);
(c)For a period on X’s birthday if he is not already in her care from 3pm until 6pm if a school day, and from 1pm until 6pm if a non-school day.
Each parent be permitted to telephone and speak with X each Tuesday, Thursday and Saturday if he is not and has not been in their care, to occur between 6pm and 7pm with the parent wishing to speak to X initiating the call and with the parent who has care of X ensuring that their telephone service is switched on, charged, available and in a mobile service area, and with X to be given privacy to speak with their parent without interruption or distraction.
Changeover shall occur by Mr Dempsey collecting X from and returning X to his school on any occasion that commences or concludes with school attendance, and on all other occasions Mr Dempsey shall collect X from Ms Nava’s residence at the commencement of time, and Ms Nava shall collect X from Mr Dempsey’s residence at the conclusion of time.
Each parent shall advise the other in writing within 48 hours of their current residential address, current contact telephone number and email details, and shall advise one another in writing within 24 hours of any change to those details.
The parents shall do all things and acts necessary to ensure that X consults with Dr A, paediatrician of Hospital B in March 2019 and that X continues to consult with Dr A for so long as she considers it necessary or desirable, and provided that if Dr A is no longer able to provide treatment that the parents will consult with X upon such ever doctor as Dr A may refer the parties to.
The parties shall follow all directions and recommendations of Dr A (or any subsequent treating doctor) in relation to X’s diagnoses of ASD and ADT, including:
(a)Referral for any occupational therapy, therapy and speech therapy required;
(b)Medication and referrals for any medical treatment;
(c)Any other referrals required.
The parties shall do all acts and things necessary to ensure that X continues to see Dr C Psychologist.
The parents shall do all acts and things to ensure that X’s general practitioner is, as far as practicable and save and except in the case of emergency, Dr D of Medical Centre E whilst in the Mother’s care, or Dr F at Medical Centre G (or such other practitioner as can consult with X if those doctors are unavailable).
Neither parent shall cause or allow X to attend on any other medical practitioner, therapist, or treater except as provided for in these Orders, and in the event that there is a dispute in relation to future treatment, diagnosis or therapy, the parents shall:
(a)Ensure that the parties use their best endeavours to reach a joint decision about that decision; and
(b)If no agreement is reached between the parents within fourteen days of first consulting with each other, then Ms Nava shall make the final decision and shall advise Mr Dempsey in writing of that decision.
Within 24 hours of these Orders, Mr Dempsey shall provide to Ms Nava all and any documentation he has already completed in relation to the child’s eligibility and any claim for service under the National Disability Insurance Scheme, and each parent shall cooperate with each other in making future claims for such assistance.
In order to facilitate the above Orders, Mr Dempsey and Ms Nava shall ensure:
(a)All appointments are made in consultation with each other;
(b)Both parents are invited to attend such appointments, either together or separately, at the discretion of the medical practitioner;
(c)Both parents shall ensure the other is advised ahead of time of all appointment times and dates for each medical and therapy appointment for X;
(d)Both parents shall ensure that the other has been given any documentation that the parent completes in relation to X’s therapy and medical needs;
(e)Each parent shall be able to participate fully in the provision of information to or receipt of information from medical practitioners and therapists; and
(f)Each parent shall do all things necessary to ensure that each parent is able to receive any report produced by any medical practitioner or therapist for X.
Mr Dempsey and Ms Nava shall do all things and acts necessary to ensure that the details of each parent are recorded at any school that X attends as both parent and emergency contact parent, and so as to authorise the school to communicate with each parent and to enable each parent to communicate with the school, obtain information and attend events and activities that parents are invited or encouraged to attend, including, but not limited to, parent-teacher interviews (noting that it is not required that the parents attend such interviews jointly);
In the even that X is hospitalised or receiving medical attention, the parent who has care of X shall notify the other parent as soon as practicable after first contact with the medical practitioner, medical centre or hospital, and do all acts and things necessary to authorise the medical practitioner to communicate with the other parent about the child’s illness or condition, and any treatment recommended or provided and to visit the child if hospitalised.
Each parent shall refrain from making derogatory or critical comments or remarks in relation to the other parent in the presence or hearing of X and each parent shall remove X from the presence or hearing of any other person who is making critical or derogatory comments about the other parent in his presence or hearing.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Nava & Dempsey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2768 of 2017
| MS NAVA |
Applicant
And
| MR DEMPSEY |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to future care arrangements for a young child, X, born 2011. As would be apparent from X’s date of birth, he is presently aged seven and will, in a few months’ time, turn eight.
The parties to the proceedings are his parents, Ms Nava, his Mother and the Applicant, Mr Dempsey, his Father and the Respondent. X’s interests are represented by an Independent Children’s Lawyer.
It is germane to observe from the outset that X also has two siblings, being children of Ms Nava from a previous relationship. Those siblings are H, born 2005, 13 years of age and I (known throughout the proceedings as I) born 2009, presently 10 years of age. I is in year 4 at the same school that X presently attends and which the parties now agree, although it was an issue of significant controversy when the trial commenced, he will continue to attend.
Evidence Considered
In dealing with the proceedings, I have read and considered each of the documents identified by counsel for the parties and the Independent Children’s Lawyer in the Case Outline documents filed by them.
In the case of Ms Nava, that has comprised:
a)Her Amended Application filed 9 August 2018;
b)Her affidavit of evidence-in-chief filed 16 November 2018; and,
c)An affidavit by Ms Nava’s Father – young X’s Paternal Grandfather - Mr A Nava, sworn or affirmed 12 November 2018, filed 16 November 2018.
In the case of Mr Dempsey, I have read and considered:
a)His Amended Response filed 5 December 2018;
b)His affidavit filed early in the proceedings (having been filed with his Response as then framed) sworn and filed 14 July 2017;
c)A trial affidavit by Mr Dempsey sworn or affirmed 15 November 2018 and filed 16 November 2018; and,
d)An affidavit by Mr Dempsey’s Mother - young X’s Maternal Grandmother - Ms A Dempsey, sworn or affirmed 15 November 2018, filed 16 November 2018.
Each of the parties has also filed a Notice of Risk. Those documents have been read and considered, although that which is relayed by the Notices is addressed in the evidence of the parties.
There are also a number of exhibits in the proceedings. There are three family consultancy interventions which have produced reports, being:
a)Exhibit A – a family report dated 2 May 2018 (and which was released to the parties by an order 4 June 2018);
b)Exhibit B – an addendum report dated 25 June 2018 )and released to the parties by an order 3 July 2018); and,
c)Exhibit C - a child inclusive child dispute conference memorandum dated 6 October 2017.
There are also the following exhibits:
a)Exhibit X – a Minute of Orders proposed by the Independent Children’s Lawyer;
b)Exhibit ICL1 – certain material from the Department of Family and Community Services as tagged, being three labels: ICL 7, 8 and 9.
c)Exhibit A1 – further material from the Department as tagged with post-it notes M2 and M3.
d)Exhibit A2 – additional material from the Department as tagged with post-it note 2.2.
e)Exhibit A3 – further material from the Department as tagged and marked 6.1 and 6.7.
f)Exhibit A4 – material from the Department and tagged 12.3.
g)Exhibit A5 – a transcript of certain text messages between the parties which occurred at a time when young X was at Hospital B and was due to be spending time with his Mother.
h)Exhibit A6 – a Minute of Orders proposed by the Mother. I make clear the Minute of Orders proposed is in the alternative. The Mother, otherwise, accepts and adopts that proposed by the Independent Children’s Lawyer – exhibit X.
i)Exhibit R1 – material from the Department of Family and Community Services – 21 April 2017.
j)Exhibit R2 – two documents from material produced by Suburb J Public School tagged RF1 and 2 respectively. They comprise a report by X’s school counsellor dated 29 June 2017 and minutes of a meeting attended by the Father with respect to X.
k)Finally, exhibit R3 – a Minute of Orders proposed by the Father.
Parties’ positions at trial
At the time that these proceedings were listed for trial and, indeed, at the time that the matter commenced its trial of two days, the parties’ positions were somewhat different to those which are now presented.
The Mother, by her Amended Initiating Application enumerated above, sought:
a)An order for equal shared parental responsibility;
b)That X live with the Mother;
c)That X spend time with his Father, effectively, for three weekends out of each four during school terms, together with periods of one half of school holidays and certain special events;
d)Orders with respect to notification of certain events, recording details with the schools and the like were also sought.
The Orders sought by the Mother had expanded somewhat by the conclusion of the trial and are set out in the Minute of Orders tendered on her behalf – exhibit A6.
In the Father’s case, his Amended Response sought orders that:
a)He have sole parental responsibility for X;
b)X live with him;
c)X be enrolled in a school proximate to the Father’s home and most suitable for his needs;
d)X spend time with his Mother each alternate weekend during school terms from 4.30 pm Friday to 4.30 pm Sunday, and for alternate weeks during school holiday periods;
e)Similar machinery Orders, if they might be so described, be made in relation to notification, provision of information and inclusion upon the child’s school records and the like.
Each of the parties and, indeed, each of their respective witnesses, have been required for cross-examination, as has been the family consultant.
The matter has concluded within the two days allocated to it on the basis of the parties being required to constrain cross-examination to ensure that the matter completed within that time.
This judgment is now delivered at the completion of the Court day and after hours. These reasons are delivered on an ex tempore basis for a number of reasons.
Firstly, the parties require some finality and closure. That is, by and far, the most important of the reasons.
Secondly, the judicial sitting year completes today. As a consequence of the January close-down no longer applying, there is no judgment writing time available in my calendar until May of 2019. Accordingly, the prospects of this matter being determined, if it is to await judgment writing time, will see significant delay, particularly a delay in delivery of judgment beyond that which the Court holds out as its accepted standard (being three months from the conclusion of the trial). Upon returning to sitting duties on 8 January, there is a complete and full diary – over-listed by 300 per cent for the entire year. There is simply no time to deliver reasons other than today.
Even with those difficulties, I would not proceed to determine this matter with the important subject matter - perhaps the most important subject matter that can arise in civil litigation, the interest of a child - unless I was satisfied that I fully understood and was across the evidence that has been presented. I am so satisfied. That is greatly assisted by the submissions put by counsel, including – and I make special mention for no purpose other than its acknowledgement, and to ensure that Mr Dempsey is fully aware and appreciative of the strident efforts made on his behalf in presenting his case – counsel for Mr Dempsey.
The evidence is, I am satisfied, relatively clear and understood by me and I am guided and assisted by the submissions put so as to be able to now deliver these reasons.
As the matter is concluded with an ex tempore judgment after Court sitting hours, I acknowledge that one might expect that more nuanced and finessed reasons to be delivered, given some months of consideration. However, in a busy docket in which 548 ex tempore judgments have been delivered by me in the last 12 months, it is simply impossible to apprehend when that would occur. This is a busy trial Court. There is not the luxury of settling 548 judgments in a year. One would hope that this might be taken into account in the event of any appellate controversy. That will be a matter for the parties to either agitate or defend against and a matter for the Appeal Court in their discretion.
I am also conscious that there is an immediacy and a power in the delivery of oral reasons in the presence of the parties. A written judgement may be urged by appellate Courts as desirable, (indeed, with reasons settled when delivered ex tempore), but a written judgement delivered some months after the conclusion of the trial does not involve speaking to the parties. It does not look them in the eyes.
Conduct of the hearing
I do not propose to discuss and consider each and every aspect of the evidence. It is not necessary and it would not further the principles in section 69ZN of the Family Law Act 1975 (Cth).
To canvass every controversy between these parties could do very little other than to further diminish their already unstable parental alliance, although that is not to suggest a complete absence of confidence that it is improved since the proceedings commenced and continues. One would hope that it may continue to improve.
There are certain aspects of the evidence that are particularly controversial - potentially, in fact, emotionally hurtful to one party or the other. And to canvass that evidence in detail, save and except to the extent that it is necessary to do so to determine the controversy that these parties present, is unnecessary, indeed, mischievous to the best interests of this child. Thus, I do not propose to do so.
I am otherwise conscious that the principles for the conduct of child-related proceedings in section 69ZN have been, as best as can be accommodated, followed in this case. The needs of the child have been considered as well as the impact of the conduct of the proceedings. Whilst one or other of the parties may have felt aggrieved by limitations upon the time that is available to conduct the proceedings, (although such limitations are authorised by reference to Full Court authority) it has also meant that the parties are focused upon the important aspects of their case (or, perhaps, more important aspects of their case), and, thus, need not pursue matters which would be unnecessarily harmful or damaging to a future parenting relationship.
I am satisfied - indeed, appreciative to counsel for each of the parties and the Independent Children’s Lawyer for, as far as possible, within the confines of their duties to vigorously and zealously prosecute their case and follow their instructions in doing so - that the parties have avoided such controversies, where possible.
The proceedings have been actively and directly controlled. The proceedings have, as far as possible, been conducted in a way that will avoid either party being subject to abuse, neglect or family violence. Although the issues that are raised in that regard are very much historical, that does not suggest that they are unimportant or irrelevant. But they are not suggested to impact upon the parties presently, at least not in any meaningful way.
An attempt has been made to conduct the proceedings so as to promote co-operative and child-focused parenting. It must be observed that adversarial termination of proceedings is poorly equipped to achieve that purpose. The proceedings have been conducted with as little delay as possible, at least as regards the hearing itself.
It is important to also have some brief consideration to the history of this litigation before turning to the history of young X’s arrangements and the evidence that the parties lead.
History of proceedings
The proceedings were commenced by an Application Initiating Proceedings filed on 6 June 2017. That occurred some weeks after what has been referred to in the evidence (and I accept that it is an appropriate terminology to adopt) the retention of the child by Mr Dempsey in his care.
Until a date in April 2017, the child had lived in a relatively shared care arrangement between these parties. Until that time, a co-operative parenting arrangements and communication each with the other had been more abundant, at least until proximate to that date.
In April 2017, the young lad returned with the Mother from a visit to Town K undertaken by the Mother and all three children within her household. Ms Nava had been visiting family members. There are some issues tangentially raised on the evidence, although not vigorously addressed in the evidence presented at trial, regarding members of the Mother’s family. Those complaints would appear to relate to the sexuality or gender identity of various members of the Mother’s household. Comments are ascribed to the Father within the family report, although, thankfully, not repeated in the Father’s evidence. Mr Dempsey, no doubt, having been given clear advice as to the forensic purpose and relevance of that evidence and the difficulties with its presentation, determined not to repeat it.
The proceedings arose in those circumstances of some urgency and, thus, came on as quickly as could be accommodated with listing arrangements at that time.
The matter first came before a Judge of the Court on 17 July 2017. On that date, the proceedings were adjourned for a relatively brief period, although three months. That is, within the context of this registry’s availability of judicial resources, a brief adjournment.
During the intervening period, a child inclusive conference was undertaken. On 17 July 2017, an Independent Children’s Lawyer was appointed and a number of Orders in relation to X’s parenting arrangements were made by consent. They included an Order for X’s enrolment at the Suburb J Public School, where he has attended since he commenced his primary school education with kindergarten. Orders were also made investing equal shared parental responsibility in the parents for X to live with his Father and spend time with his Mother each alternate weekend from Friday through to Tuesday and in each intervening week from Monday to Tuesday. The Orders are not expressed in quite those terms, but that is the effect of them.
The Mother gives evidence that she had consented to those Orders on the basis that she was fearful that, without some Order in force, she would not spend time with X during the adjournment. There is some validity to that evidence. Ms Nava is a credible witness, an issue to which I will return shortly. She gives evidence (which would not appear disputed in any event) that she had not spent time with X between X’s retention and the first Court event. For at least one week, X did not attend school.
I do not raise these matters to criticise Mr Dempsey. It was clearly a time of turmoil for this family. However, to the extent that it might be inferred that Ms Nava had consented to the child’s placement and, thus, cannot or should not be heard to vociferously complain as to the child’s placement with the Father, I do not and could not accept it on that basis.
When the proceedings returned before the Court on 19 October 2017, the child inclusive memo was available. It did not assist the parties, either through its contents or the feedback provided to them, in reaching a resolution. The proceedings were further adjourned, this time to enable a full family report to be completed.
Due to difficulties with family consultancy resources within this registry – their absence, rather than any criticism of those employed in those positions – the adjournment of the case to enable that report to be prepared was nearly 13 months. The family consultants within this registry work extremely hard. Indeed, they work at a rate that is potentially appropriately described as “unsafe”. Their workloads are onerous. It is simply a question of the volume of reports that are required. Reports are ordered at a fairly modest rate - about one third of contested parenting cases - but there is such a volume of cases that this adds up to a great many reports. It is reflective of the volume of cases before the Court that means that both Judges and family consultants are faced with a continuous avalanche of work. They complete it relatively cheerfully in the circumstances and to a high standard.
In the intervening period, the proceedings returned as the consequence of an Application in a Case. That Application in a Case came before the Court for interim hearing on 20 March 2018 when a defended interim hearing occurred.
I have not sought to canvass the subject matter of that Application in a Case, although it would appear to relate substantially to a change in the child’s school to accommodate the difficulties that were apprehended, certainly by the Father and commented upon by the family report writer, in the child travelling from the Father’s home - the child’s then, primary place of residence in being in Suburb L - to Suburb Jto attend school each day.
One of the documents annexed to the material in the proceedings is a list of school absences during 2017. The absences cover a period from February to October 2017. It may be that it is for the whole school year. There are 25 partial absences and 32 whole absences. It is important to observe that this represents in excess of one school term for the year. Again, I do not refer to that as an overt criticism of the Father. A number of the absences arose as a consequence of medical appointments and other interventions in relation to the child which were necessary and important. It is simply observed to reflect the basis upon which such an Application might have been made.
The family report was completed after the interim hearing conducted on 20 March and before a judgment was delivered. It is unclear whether a judgment has ever been delivered with respect to that Application in a Case, (although that, also, is not raised as a criticism of either the presiding judicial officer or any other person - it is simply what is recorded).
Following release of the family report, the matter returned before the Court on 14 June 2018. The date had been brought forward as a consequence of child dispute services being able to accommodate the report more quickly and on an expedited basis – an initiative introduced in this Registry to reserve a small number of spots per month to enable matters of this nature to be addressed as quickly as they warrant, deserve and require, rather than being the subject of disadvantage inflicted by significant delay as a function of a chronic absence of resources - a chronic absence of resources which has persisted for the entirety of my appointment to the bench of this Court – nearly nine years – and which has not abated nor is there any prospect it will abate).
Following the mention on 14 June 2018, the matter was referred for hearing on an expedited basis. An Order was also made to prepare an addendum report as X had not been interviewed in the family report. I will return to that issue shortly. Arrangements were then made on a collegiate basis between the then docketed judge and myself to transfer the matter to my docket as earlier hearing dates were available and this matter clearly required urgent hearing.
As a consequence, a further callover occurred in July 2018 and these hearing dates were fixed in what was to have been annual leave. But these parties require assistance for their fractured family, and such compromises must be made when those seized with responsibility for provision of the Court’s resources fail in their responsibilities. Thus, the parties have arrived at this trial and this judgment will conclude their proceedings.
The evidence
In turning to the evidence, I propose to adopt and incorporate the chronology provided by the Independent Children’s Lawyer. I do so not to suggest that it is superior to those provided by the Mother and Father, save and except in one important respect: it is mutualised. It incorporates the relevant events which each allege are of importance in relation to this lad’s arrangements and fairly points to and canvasses the evidence that the parties raise in relation to those matters. I do not incorporate the chronology to suggest that any criticism by either party of the other is necessarily accepted, merely to identify the evidence that the parties have placed before the Court and the issues that they have identified for determination.
I incorporate the chronology provided by the Independent Children’s Lawyer herein.
| Date | Event | Ref |
| 1983 | Mother, Ms Nava, born. Aged 35 years. | F3/2 |
| 1985 | Father, Mr Dempsey, born. Aged 33 years. | F3/1 |
| 2005 | Half-sibling, H, born. Aged 13 years. | F5/4 |
| 2007 | Mother and Father met on an online chat site | M11, F5/5 |
| 2009 | Half-sibling, I (“I”) born. | F5/4 |
| 08.2009 | Mother and Father commence a relationship | M1/3 F5/7 |
| 05.04.2011 | Father proposes to Mother and the couple become engaged | M1/8 F5/9 |
| 2011 | Child, X, is born. | F5/10 |
| 2011 | Father alleges that Mother suffers from significant back problems & takes pain killers Father further alleges that the Mother was diagnosed with general anxiety disorder & chronic depression & takes Zoloft & Endep | F5/82-84 |
| 11.2015 | Family moves to Suburb J together Father alleges that he pays for food & other bills whilst at the Suburb J home Father sleeps in a single bed | M1/12 F5/20-21 |
| 28.03.2016 | Father alleges that he moved out of the Suburb J home but still continues to pay some of the Mother’s expenses Father alleges that he returned to the Suburb J home each fortnight and stayed overnight from Friday – Saturday to spend time with X, H and I | M1/13 F5/22-23 |
| 05.2016 | Mother alleges that she asks the Father to leave the house | M1/14 |
| 05.2016 | Father moves to live with friends in N City | M1/63 |
| 08.2016 | Father finds a place to live in Suburb O. All three children commence overnight spend time. | M1/20-21 F5/35-36 |
| 09.2016 | Father ceases to spend time with H & I Mother alleges that H asks to only stay with Father fortnightly | F5/37 M1/22 |
| 10.2016 | Father commences a relationship with Ms P | M1/23 F5/40 |
| 10.2016 | Mother and Father have a shared care arrangement for X which worked out to be 7 nights with each parent | M1/24 F5/38,75 |
| 06.11.2016 | Father says Mother sent him a photo message of X’s hand with teeth marks and says I bit X | F5/42 |
| 2016 | Mrs Neale, the kindergarten coordinator, tells the Mother that X fell asleep in the playground Father reports X says I locks him in the toilet & bedroom in the dark & he is scared | M1/72 F5/49-51 |
| 06.02.2017 | X diagnosed with asthma | F5/6 |
| 16.03.2017 | X consults Dr Q, Paediatrician | M5/73 |
| 12.04.2017 | Mother accuses Father of entering her home uninvited & taking items. Father denies such allegation. Father contacts FACS as he observes the Mother’s home to be unclean and he takes X from the Mother’s home as he observes X’s underwear ripped. Mother contacted by FACS and referred to Family Service R | M1/33-34 F5/63-68 |
| 04.2017-07.2017 | Sometime during this period, Father moves into Paternal Grandparents home | M1/66 |
| 16.04.2017 | Father due to return child to Mother. Mother sends text message to Father. | M1/36 |
| 17.04.2017 | Mother requests welfare check by Suburb J police | M1/37 |
| 18.04.2017 | Mother texts Father seeking X to be brought home. Father texts Mother advising that he will not be returning child to Mother’s care. Mother seeks legal advice. | M1/38-30 M1/42 |
| 26.04.2017 | Father does not return X to Mother’s care nor school. Mother’s lawyer assists parties to negotiate terms plan mediation. | M1/43 M1/45 |
| 01.05.2017 | X spends time with Mother | M1/48 |
| 03.05.2017 | Mother alleges X said to her “I have been good all day why can’t I come home with you?” | M1/49 |
| 05.05.2017 | Mother and Father agree that child would stay with Mother | M1/51 |
| 21.05.2017 | Mother and X have one-on-one time. X allegedly asks “Why do I have to go back to Dad’s?” | M1/55 |
| 23.05.2017 | Mother attends school to speak with principal, Mr S. Mr S advised Mother that Father had arranged paediatric assessment for child for diagnosis of ADHD, Autism and ODD | |
| 06.2017 | Father alleges that X says he doesn’t have a shower at his Mother’s place | F3/27-28 |
| 06.06.2017 | Mother files Initiating Application | |
| 29.06.2016 | School counsellor report (attached to Father’s affidavit) | M1/82 |
| 30.06.2017 | Father texts Mother to advise that he would not be returning X to Suburb J Public School | M1/79 |
| 07.07.2017 | Father informs Mother that X is enrolled at Suburb J public school to commence 18.07.2017 | M1/80 |
| 14.07.2017 | Father files Response | |
| 17.07.2017 | First return date before Judge Newbrun in FCCP Interim Orders made by consent which provides for parties to maintain X’s enrolment at Suburb J Public School, ESPR, X live with Father & spend time with Mother every Monday from after school to before school Tuesday & each alternate weekend from after school Friday to before school Monday. | |
| 15.08.2017 | X seeks Dr T, Consultant Paediatrician & is diagnosed with ADHD & referred to Dr U, Paediatrician, who confirms diagnoses of ADHD & raises Autism Spectrum Disorder (“ASD). X also referred to Mr V, Clinical Psychologist | F3/9-10 |
| 06.10.2017 | Parties attend CIC with X | |
| 11.2017 | Father alleges that X retuned from his Mother with a red sore penis Father consults GP Mother did not offer any explanation of circumstances | F3/29 |
| 12.2017 | Father attends “parenting program W” | F3/5 |
| 20.03.2017 | Interim Hearing before Judge Newbrun to change X’s school Matter adjourned to expedite preparation of family report | |
| 02.05.2018 | Family Report | |
| 25.06.2018 | Addendum to Family Report | |
| 03.07.2018 | Parties consult with Dr A, Paediatric Psychiatrist & report prepared | F3/13 |
| 14.11.2018 | Date of Assessment requested by Dr A for X | F3/13 |
| 12.12.2018 | Final Hearing to commence |
Before canvassing specific aspects of the evidence that are of importance, it is also germane to observe that this case is, perhaps, emblematic of the difficulties of an adversarial system as a tribunal of fact in getting to the truth. If one has regard, for example, to the theory from quantum dynamics, of “the many interacting worlds”, this case is a perfect example. A predominant difficulty with an adversarial trial is its focus upon one ultimate and objective version of truth. In reality, as this case demonstrates, there are multiple co-existing versions of truth. If one defines truth in an objective sense, it is difficult to comprehend how it could ever be found through an adversarial trial.[1]
[1] See, for example, Finkelstein J, writing in extra curial role, in his paper ‘The Adversarial Trial and Getting to the Truth’ (2011) 37 Monash University Law Review 135.
The Court, as a tribunal of fact faced with several competing perceptional truths - particularly in the context of family law disputes - dealing with relational matter, is ill-equipped to get to truth.
Each of these parties have experienced the same events and have received, whether at the same time or at different times, the same information. And, yet, each has very different interpretations of that information to arrive at their version of truth.
Whilst findings of credit must, to some extent, be made in this case, I note from the outset that I accept, fundamentally, each of the parties as a witness of truth - if one takes truth as genuine belief and adherence to that which the party expresses.
The difficulty in the adversarial trial – that which is undertaken by this Court as a tribunal of fact on this occasion - is that for a party’s version of events to be accepted as true, it must accord with that which is understood by the decision-maker.
I propose to avoid, as far as possible, venturing into areas of controversy between these parties or making criticisms of them. There is no purpose to be served in “beating up” either of these parties.
I make clear from the outset that I accept the submission put by Mr Dempsey’s counsel that these two parties are perfectly adept as parents, even if they do not, necessarily, each accept that of the other wholly, completely or, at times, at all. They are doing the best they can. They are flawed and fractured human beings, as every human being is.
It is timely, perhaps, as we approach the Christmas period, to acknowledge that human beings are tainted, whether with fault, original sin or however else it may be described. All too often – and aspects of this case relate to the proposition – parties conduct their case on the basis that one party is virtuous and the other failing. All parties who come before this Court fail to some extent.
It is pointless to pursue such an inquiry. The parties are the people they are. They are important and have value by and of themselves. They are human and that is what gives them their value in the same way that X has value through his humanity.
It is regrettable, perhaps, that these parties – perhaps more so Mr Dempsey than Ms Nava - cannot bring themselves to accommodate theories such as the African concept of Ubuntu – that their humanity is dependent upon an acceptance and embrace of the humanity of others. Mr Dempsey’s humanity is dictated and defined by reference to Ms Nava’s humanity.
Too much of the evidence, to my mind, has been focused upon blame and criticism. It is unhelpful, particularly for X.
I propose to deal with four discrete aspects of the evidence which are of importance and presented by one or other of the parties as such.
The Child’s Needs and Diagnoses
Young X is now accepted, by both parents, as a child with what has been described throughout as “special needs”. It might, perhaps, be preferable to refer to them as unique needs.
I am conscious that one of the issues which one or both of the parents (and I accept at different points in time, and for different reasons, perhaps both parents) have had difficulty in accepting the diagnoses that have been offered with respect to X. It is now settled between the parties and agreed, as they have described each of them in their evidence, that they are on the same page that X is diagnosed with and experiences ADHD and Autism Spectrum Disorder.
Each of those diagnoses has, at various times and for various reasons, been controversial. It has assumed great importance in the case as one of the significant criticisms of Ms Nava. Her capacity as a parent has been impugned by reference to her suggested failure to accept those diagnoses. The criticism is misplaced. Again, I do not propose to canvass the evidence in relation to those diagnoses in significant detail – the parties have done so.
It is germane to observe that the first real investigation with respect to this young lad’s unique needs was undertaken by the school counsellor at Suburb J Public School and published in a report dated 29 June 2017.
Credit must be given to Mr Dempsey for having instigated those processes (although, sadly, it has led to a great distrust by Mr Dempsey in that school – not the school counsellor, but the school itself). That may be connected with other issues such as Ms Nava being actively involved with the school – vice-president of the P & C and attending the school most, if not all, days to provide assistance in relation to programs at the school. She is, clearly, a very committed member of the school community, bearing in mind both X and I are students at the school and, prior to that, X’s eldest sister also attended. Credit must be paid to Ms Nava for that commitment.
The school counsellor’s report suggested further investigations were required to consider and pursue whether diagnoses of ADHD, ODD and/or Autism Spectrum Disorder might be available. It was beyond the specific qualification of the school counsellor, although otherwise eminently qualified in that role, to offer such diagnoses.
As a consequence of that report, Mr Dempsey instigated various processes to enable investigation of whether such diagnoses might be offered. At paragraph 80 of the family report, it is made clear that:
Mr Dempsey said he was not happy with Dr BB’s diagnosis and returned to his GP, Dr F, who referred him to Dr EE, a clinical psychologist. Dr EE gave X a diagnosis of autism. Mr Dempsey acknowledged that his paediatrician, Dr GG, disagreed with this diagnosis and wanted him to see Dr BB again. He said that he wants to change X’s paediatrician. Mr Dempsey said that Ms Nava was not interviewed in connection with any of X’s diagnoses. He said that X had seen a psychologist, Mr V, for six sessions and he is waiting approval for another six sessions.
That is contained in the primary family report, if it might be so described, dated 2 May 2018.
Between 29 June 2017, when the school counsellor first suggested that investigation was necessary, and the interviews for that family report, which occurred on 17 April 2018, it would not appear that Ms Nava had any significant involvement in the investigations or diagnosis, not through lack of interest but through lack of request to engage, information arising from that which had been undertaken or forewarning of appointments.
I do not suggest a total absence of information provided to Ms Nava, but she was very much drip-fed portions of information. She was, for example, requested to complete an ADHD checklist without any background, context or further information as to why she should do so. That led to an argument between these parents which occurred at the school that X and I attend and as a consequence of which both parties were spoken to by the school principal and given a warning with respect to their behaviour.
That cascaded into significant difficulties between Mr Dempsey and the school, his trust being very much fractured with the school who he perceived had taken the Mother’s side and/or accepted and preferred things that the Mother had said rather than what he had said. As a consequence of that breakdown in trust and communication between the Father and the school, young X did not, from the end of 2017, meet with or engage with or, more importantly, receive the assistance of, the school counsellor - the very school counsellor who had written the report which was instrumental in now leading to the settled diagnoses as to what this child needs by way of unique assistance.
That was addressed by the family report writer in cross-examination. The report writer was quite eloquent in discussing both her past experience in dealing with - indeed, training those within educational facilities who worked with - children with diagnoses of autism, but also being very clear that the school counsellor, working one day a week at Suburb J Public School – a matter of criticism in the Father’s case at least on the first day of trial – has a unique and fundamental role to play in integrating the child into the school community and ensuring that his needs are met.
It is all the more regrettable that, as a consequence of that chain of events, that this child was denied and deprived something that would have been of considerable assistance to him. Indeed, it is at least inferentially, if not directly, suggested and conceded that it would have been of great assistance to him in light of the complaints that were raised by Mr Dempsey in his affidavit material, (paragraph 47), as to his unhappiness with “inadequate counselling” at Suburb J Primary School. The counselling could not be inadequate when the only reason that it has not occurred is that permission has been refused by the parent raising the criticism.
Those diagnoses are now settled. As recently as 14 November 2018, these parties and each of them attended an extensive meeting at the Hospital B. A report and summary of that meeting is annexed to Mr Dempsey’s material, (annexure 5). Present at the meeting were the parents, the paediatric registrar of the hospital, the senior speech pathologist, the social worker, a medical student, (although their participation, presumably, was modest), and an associate professor of developmental paediatrics and head of the child development unit.
Other professionals were involved in consultation rather than presence at the meeting:
a)Dr A, a staff member at the hospital who has been providing treatment to this young lad;
b)Mr EE;
c)Ms HH, the school counsellor who first met X and pointed the parties, more so perhaps Mr Dempsey at that point as he was the one who received the report and information, in the right direction to pursue what was needed for this lad.
Both parties acknowledged that at the meeting they each had the opportunity to participate, to hear information, to provide information, to be asked questions and to ask questions themselves and get answers. Thus, as recently as 14 November 2018 - four weeks ago - they were on the same page as to what is needed to address this child’s unique needs.
Prior to that meeting, the difficulties that have arisen included doubts expressed by Ms Nava as to whether the diagnoses were accurate. There may be some validity to criticisms of Ms Nava for doubting the professional advice offered, but it must again be observed that Ms Nava was very much deprived of fundamental information or the opportunity to participate. The clearest evidence in that regard comes from the psychologist, Mr V.
There are three reports from that good gentleman annexed to the Father’s material, (annexures D, E and F). At the time of the first report, 9 November 2017, it would not appear that the Mother had any or any substantial involvement in that process, although the Father and X had attended five times. Certain comments are related regarding the Father’s information provided to the specialist regarding the Mother, but it is clear from the manner in which that is related within the report annexed that it was not from the Mother and that, at best, she had been telephoned.
By 12 January 2018 - exhibit E - it is described that:
I am aware X’s parents have an acrimonial (sic) co-parenting relationship.
At that point, X had attended six appointments - none, it would seem, with his Mother. It was suggested that there was a significant disagreement regarding how X should be raised as well as the parents having different beliefs regarding the issues. Both parents were advised – the Mother being then engaged – that as long as they disagree on boundaries, parenting style or whether there is, in fact, an issue with X’s development at all, it will invariably interfere with any diagnostic or therapeutic activity they may employ.
The good gentleman noted that
…until both parents agree to raise their child in a more consistent and communicative manner, environmental factors cannot be ruled out [for X’s reported behavioural and learning problems] and I would not be confident in saying conclusively that this child has ASD or autism spectrum disorder.
The Mother, of course, was opining at that point that environmental issues were the predominant cause for X’s difficulties at school. Those difficulties related to some educational delay or disadvantage, possibly social disadvantages.
He was clearly being picked on or bullied or teased at different points whilst at the school, whether as a consequence of his behaviour, presentation or simply the nastiness of those children. X was beginning to engage in what might be described as “strange or unusual” behaviours, such as dropping his pants for the entire class to observe.
It must be remembered that numerous environmental factors had predated that assessment. In April, the child had been retained by the Father and had a period of one week away from school and some weeks away from the Mother and his sisters. X then resumed the relationship, albeit fairly frugally and, thus, the previous shared care arrangement that the parties had negotiated and practised had been brought to a shuddering halt.
By 12 November 2018, (annexure F to the Father’s affidavit), matters had improved somewhat. The child had continued to attend sessions and various improvements in the child had been observed, including demonstrating far greater empathy, a reduction in his tendencies towards obsessiveness and marked improvement in various areas.
Each parent demonstrated that they had been working with X to improve his literacy and focus whilst limiting his screen time, an issue of some significance and a difference between the households. There were marked improvements in social skills. He had made more friends and had a number of friends that he could describe. However, the report writer then observes that X’s parents continued to maintain an acrimonious relationship, noting that the matter is before the Courts.
I pause to observe how much better things might have been for X if, from the beginning in June 2017, his parents had been on the same page, sharing information, both engaged in diagnostic investigations and devoting their time and effort to parenting X and addressing his unique needs rather than engaged in litigation.
The report continues:
Although both parents continue to argue over custody, I believe, through the work we have undertaken over the last 12 months, that both parents are demonstrating a parenting style that, if not communal, is certainly more similar and consistent than before. Where there was previously disagreement on how X should be raised, both parents are demonstrating parental skills and behaviour management techniques that are appropriate and much more alike. I believe this is a significant contributing factor to X’s clinical improvement.
In a nutshell, a reduction in conflict and an improvement in consistency in their parenting has benefited the lad. That is far from surprising. It would apply whether he had unique and special needs or not.
90. What is demonstrated by those three reports, however, is that the parents remain somewhat acrimonious. There is a glimmer of hope. Indeed, a very positive statement made within annexure I to the Father’s material – Hospital B report I have already referred to – commending both parents for attending the appointment together and not being involved in conflict at the appointment. Clearly, it can be done when the parents are minded to do so or perhaps when there is a purpose and sufficient others present to guarantee that it is so.
To the extent that the Mother is criticised as having failed to recognise the child’s unique or special needs, I dismiss the submission. The evidence clearly demonstrates that the Mother has, with the limitations and barriers imposed upon her access to knowledge, information or involvement, accepted diagnoses fairly readily. Indeed, to the extent that the Mother is criticised, the passage of the family report to which I have referred suggests that this has been a difficult journey for both parents as one may well imagine.
It is difficult to imagine any parent joyously receiving news from their treating doctor that their child is autistic. That is not in any way to suggest a deficiency in an autistic child, merely that it would be confronting. It would mean that these parents have to accept that their child has needs which will require some changes in how they parent and which will, no doubt, due to the nature and traits of the child’s peers at school, mark them out for special attention which is less than conducive to their needs.
That would appear to be something which has happened for this young lad, perhaps further accentuated by the relative poverty in which Ms Nava lives. I am not critical of Ms Nava for that. A poignant moment of the evidence was when Mr Dempsey indicated that he drives his daughter to do her shopping once a fortnight because that is when she is paid, when she receives her Centrelink benefits. This woman makes do in a household where she rents, with three children in her care, receiving no child support for her children or nothing beyond the statutory minimum assessment, and living on benefits.
As is readily acknowledged by anybody who has addressed the issue, particularly organisations such as ACOS, it is simply not possible to live on the level of benefits provided by the community safety net at any standard other than at or beneath the poverty line.
The criticisms that are made of the Mother’s provision for young X at the time of his removal from Ms Nava’s care by Mr Dempsey – that being very much a unilateral act, not an agreed arrangement – might also be tempered by those realities.
The Mother is criticised for the state of the children on that occasion. It should be borne in mind they had just returned from a six hour drive from Town K.
Mr Dempsey is suggested to have observed that X’s underwear was dirty and holey. That may well be so, but it does not mean, as was ultimately conceded, that Ms Nava has anything but absolute love and affection for this child. If there is a criticism of her financial provision for the children, perhaps action through the provision of funds might be better than mere criticism.
In relation to the diagnostic issues relating to this lad, his diagnoses are clear. I accept that both parties are now fully accepting of those diagnoses, are working together and have for some little time, in the case of Ms Nava, since she has been permitted to engage with his treating professionals, been meeting his needs perfectly well.
The Mother’s mental health
I do not raise this issue to, in any way, seek to cause embarrassment to Ms Nava. There is nothing to be embarrassed about in having a mental health issue. It is a health issue, no more embarrassing than asthma or diabetes. However, it has been raised as an issue in the proceedings - a significant one at various times. Certainly, at the time of the family report interviews, it was suggested to be a predominant issue of concern.
Ms Nava is clear and candid in her evidence. I accept her evidence in its totality as frank, candid and honest – avoiding the term truthful for present purposes, although I do not suggest it is other than truthful – in relation to her mental health.
Ms Nava makes very clear that, at a time in her life prior to meeting Mr Dempsey, she had been diagnosed with anxiety and depression conditions. There is, of course, the difficulty in criticising a parent for such disclosures created by the absence of a causative link between that condition and its diagnosis and anything to do with a child’s best interests.
There is no evidence in this case, I make clear from the outset, that suggests that X has ever been, (let alone his two sisters), negatively impacted or disadvantaged by the Mother’s mental health.
Ms Nava has suffered from depressive and anxiety based conditions. She has received treatment for them. The evidence that the Mother gives, including during her cross-examination, is that those conditions worsened during her relationship with Mr Dempsey and as a consequence of the circumstances of the relationship.
I do not raise that to criticise Mr Dempsey or suggest that he has directly or consciously done or failed to do anything that has impacted Ms Nava’s mental health. But the relationship, I accept from her evidence and the totality of that which is before the Court, did impact upon her mental health. That was in combination with an injury to her back which caused Ms Nava significant disability for some time, particularly during 2015.
It is to be remembered that the parties were still together in 2015. What is extraordinary regarding the relationship of these parties is that, until April 2017, they got along quite well, even after they had separated, to the extent that, for the benefit - no doubt, jointly envisaged by them - of the three children then comprising their household, they rented a house together even though they acknowledged their relationship as partners was at an end.
The back injury that was experienced by Ms Nava caused her great debilitation. It caused her to require significant assistance with pain management and medication. That, in turn, caused her drowsiness and sleepiness. It caused her pain which caused her to lie down for periods of time, whether asleep or otherwise, so as to seek relief.
During that period in 2015, her involvement in day-to-day parenting of the children diminished. It did not cease, but it diminished. Mr Dempsey’s involvement increased. That is not to suggest he did not have involvement previously, but he was required to undertake a greater level of duties.
One of the criticisms made of the Mother is that she engaged the children, particularly her daughters, in household duties. Ms Nava gave very clear, persuasive, indeed, compelling evidence, that her engagement of all three children within the household in household chores was an important part of her parenting. Indeed, it is. As she describes, it teaches the children the skills they need in life as they grow up. She described with some warmth and obvious happiness that young X particularly enjoys assisting her with cooking. Why she would be criticised for involving the children in those activities is unclear.
The debilitating effects of the increased symptomology of Ms Nava’s depressive and anxiety-based conditions had abated by 2016. It must be so, one would think, because, as the parents had separated, they then entered into and practised a shared care arrangement. Clearly, the presentation of Ms Nava at that time, physically or mentally, did not cause sufficient concern to Mr Dempsey to cause him to believe, as he later did in April 2017, that it was necessary to remove X from Ms Nava’s household.
I am not concerned that there is any issue in relation to Ms Nava’s mental health that causes any difficulty in her self-care or that of the three children in her care. She receives assistance. She is clear and candid as to the medication regime in which she is involved. She attends regular appointments with her doctor and psychologist. She is engaged with a service that assists her on a regular basis. It is not a criticism, nor should it be seen or perceived as a weakness, for a party to require some assistance.
Assistance is important for some, great assistance important for others. Some people can get by with little or no assistance. The fact that it is sought, that the need for it acknowledged and that engagement with that service is undertaken, is the important factor. It demonstrates insight. In the language of the mental health jurisdiction, Ms Nava demonstrates compliance, insight and resilience.
The Mother’s household
Issues are raised in relation to the Mother’s household simpliciter. They can be dealt with in fairly short order.
The Mother is a renter. She has no control over the state of her accommodation other than its cleanliness. There is no complaint or concern about the cleanliness of the accommodation.
A complaint was raised by the Father with the Department of Family and Community Services regarding the Mother’s home. It was not based on first-hand knowledge but a suggested report to the Father, directly or overheard, by another. In June 2018, a complaint to the Department resulted in Departmental officers attending at and investigating the Mother’s home. The complaint, as it is initially recorded, (exhibit RCL1, tag ICL7) is for “neglect, physical hazard in the home”. The report stated that there was mould all throughout the home that was impacting upon the health of the children.
The assessments identified that this was a malicious report. There was one small area on the bathroom ceiling that had an old faded mould stain. There was no fresh mould anywhere throughout the home. The report records that “the parents are presently engaged with the Family Court process in relation to X, who lives half the time with his mum and the other half with his dad” [that is perhaps a slight overstatement of the arrangement].
The home was messy but not unsafe. Again, it must be remembered that the Mother runs a household with little income and three children. That the home is messy is to be expected. Indeed, it is perhaps to be preferred. It suggests that these children are actively engaged in play.
Follow up occurred through the agency with which the Mother is engaged and receiving assistance so that she could be provided with more drawers and shelving - again, a symptom of poverty, not of poor parenting. She simply has nowhere to put things. It does not suggest that she has an absence of things for the children, (although material possessions are far from the gauge of parenting quality).
The Department assisted in contacting the real estate agency through whom the Mother privately rents so that certain repairs could be effected that would make the home more pleasant for the Mother and children. Again, they are not criticisms of the Mother, but perhaps the landlord or managing agent.
There is a more extensive version of the report and what occurred at ICL8. Therein, the criticism is raised that X is required to undertake work in the home, cleaning up his own room and the like, but all children doing so and being encouraged by a parent to do so. That is good parenting.
The final narrative in relation to that complaint is at tag ICL9. At that point, the Departmental officers followed up with the school to obtain information from the school principal. The school raised no concerns with respect to young X or, for that matter, I, although the focus of the report was X. The principal described:
Presents well with no concerns. Clean and tidy always. Always has food. No issues. 90 per cent attendance with no concerns with attendance. Appropriate, given ages. Sometimes off sick only.
Clearly, school attendance in 2018 has improved from 2017. The principal also indicates:
The Mother is the main contact at the school. The Father transports X to the school when he has care but will not come into the school. The Father wanted to change school for X and does not agree that he should attend Suburb J Public School.
I make clear that the Minute tendered by the Father’s counsel at the conclusion of the case now concedes that X should remain there in the context of the equal shared time arrangement that is now proposed and to which I will shortly turn to consider.
The principal’s report continues:
The Father had argued with the Mother in the playground last year and we had speak (sic) with them both and gave them both a warning as they both argued. But particularly the Father was the issue and aggressive and the instigator.
I am conscious the Father suggests that the school has been somewhat exaggerated in that regard and sides with Ms Nava. I do not suggest that a finding is made that that record is accurate, nor need I pursue it. It concludes, however:
After that incident, the Father will now not attend the school or speak with the school but will drop off and pick up X. The Father has made complaints to the Department of Education. The Father refuses consent for X to see the school counsellor and did not state why but issues with the Father’s dislike of the school.
The diagnoses with respect to the child are also disclosed by the principal. It would not appear at that point, June 2018, that there was any significant controversy presented by the school and one might infer that both parents, at that point, were accepting. As a consequence, no further action was taken by the Department, and explicably so.
I am not concerned that there are any risk issues in relation to this child in the care of the Mother or the Father. Indeed, no other finding could be available. No agitation was put during submissions that such a finding would or could be made and the proposals of these parties entirely contraindicate such a finding, let alone agitation for it.
X’s siblings
The criticism is put by counsel for the Mother that the Father has been dismissive of the importance of these relationships. He has certainly minimised their importance, even if falling short of dismissal.
There are a number of aspects of the evidence that clearly point to the warmth and affection of the relationship between this young lad and his siblings. That evidence is in contradistinction to some of the bases for concern that had been raised in the past by the Father, but not agitated at trial, and which relate to the siblings, suggesting, for example, that I has bullied young X and locked him in the bathroom. It would seem conceded that at times she has or at least that she generally is “bossy” towards him and that she has caused him to be concerned, if not miserable, whilst within the Mother’s household.
Concerningly, the Mother describes, (indeed it is reported by the family report writer in the family report and in the child inclusive memo), that young I has internalised a degree of blame for X no longer being in her household, suggesting to her Mother that if she left the household, X might return. That statement suggests that she is a self-sacrificing and empathetic child, to be sure.
One of the tenders in the Father’s case is a record of interview with this young lad undertaken by Departmental officers in April of 2017, shortly after the child’s retention by the Father. The interview is curious for a number of reasons, not the least of which is the abject lack of skill demonstrated by the case worker who has interviewed the child.
At one point, the case worker took a positive statement by the child in relation to the Mother and his siblings and, turning it around as a criticism, placed a leading question to the child which then elicits a negative response. One would have thought such poor interviewing might have passed since the various Royal Commissions that have been undertaken in that jurisdiction. Sadly, it would seem that such deficiencies persist.
The other concern is that aspects of that interview were tendered in the case of the Mother and the Father respectively. One version of the interview is unredacted, the other somewhat heavily redacted, and by comparing the two, redaction is somewhat random and unnecessary. The redaction does not delete any reference to a reporter or material that might identify reporters as the Children and Young Persons (Care and Protection) Act1998 (NSW) requires. One might argue that some aspects of the redaction delete details of the child’s siblings to protect their confidentiality or privacy. That would seem somewhat pointless bearing in mind other portions of the document are not redacted and clearly disclose them.
The significant concern is that most of the redaction is, effectively, random. It deletes a question here or there, or an answer or portion of an answer there, with no apparent reason.
Those issues aside, the interview is telling for a number of reasons. Firstly, and without drawing too much from it, if one will excuse the pun, the interview commences by X being asked to draw a picture of his family. He is asked, “Who would you draw first.” He replies, “X.” He is asked who he would draw next - he identifies his sisters. Then he is asked who next and he replies, his Mother and, lastly, his Father.
I do not suggest that the prioritisation of who he identifies as members of his family gives any real basis to suggest a mathematisation of the child’s warmth or affection towards those persons. But the fact that he draws his sisters immediately and first, before either parent, clearly identifies, to my mind, the importance of his sisters to him. It begs the rhetorical question, “Why they are dismissed as figures of importance?”.
The document is tendered in the Father’s case as a consequence of the portion wherein the child is suggested to raise criticisms of the Mother for hurting and smacking him and squeezing his hand. That is the curious part of the document where the child commences with a positive statement about his Mother. He is asked, “What do you like about your mum?” He replies, “Not hurting me, not smacking me, not squeezing my hand.” He is then asked, “Does she do these things?” to which he replies, “Yes.” “So that’s the thing you don’t like?” In the space of three lines a positive statement by the child is turned into a criticism.
The child discloses that the Mother squeezes his hand and yelled at him, telling him to “back up”. That is then passed over and the child is asked about his Father. If it was such a concern, one would think Departmental officers might have pursued it a little further. They do return to it, however. At the very end of the interview he is asked, “Tell me about when mum squeezed your hand.” And he replies, “To get me off the road she grabbed my hand,” and, presumably, by reference to the earlier portion, pulled him back from the road, the very evidence the Mother gave. She should be commended for that behaviour, grabbing the child and pulling him back from danger, not criticised or investigated for abuse of the child.
The child suggests that his Mother smacks him from time to time with her hand, and hard. He is asked appropriately whether it is hard because she is an adult and he says, “Yes.” A parent smacking a child is not illegal. It is not for this Court to engage in a paternalistic or moralistic discussion as to whether parents should smack their children. Discipline is a matter for them. Provided they do not overstep the bounds of state law as to how they discipline their children, reasonable physical chastisement is recognised as lawful.
This Court has not yet reached the point of what might be described in the vernacular as a “nanny state” of dictating to parents how they parent. If Parliament wishes to devolve those duties to the Court, then no doubt we can socially engineer all future separated families. Curiously, we do not intervene in intact families, nor should we. The Court need not, and should not, engage in dictating how a parent will parent (to conflate the noun and verb). It is inappropriate. The Court need not prescribe for competent parents how they are to parent.
I am not concerned that this document provides me with any real assistance other than to demonstrate the strength and importance to X of his relationship with his siblings.
Similarly, the family report, and the addendum family report, touch upon those matters, as does the child inclusive memo. X’s observations with his Mother and siblings is warm and kind. It is exactly the same with his Father. If the point has not already been made clear, I repeat it: these are two good, competent parents. They love their child, their child loves them.
It is regrettable that they cannot necessarily concede that of the other. The Mother does so, as is put in submissions by her counsel in the closing of her case. That is in contra-distinction, perhaps, with some aspects of the Father’s evidence, but not all of it.
The Mother concedes that the Father loves the child, and the child his Father. The Mother concedes that the child has a good relationship with them both. The Mother does not want the child pitted against parents or involved in their disputes. The child loves them the same. Those are ready, generous and appropriate concessions.
One would have hoped the same concessions would have been forthcoming from both parties. The tragedy of this case is that if things had been done differently and attitudes changed at an earlier point, (accepting and assuming for one moment they have changed now or are in the process of changing) these parties could have continued the very shared care arrangement that they had practised consensually and without the need for this Court’s intervention until April of 2017.
The sibling relationship is commented upon throughout the family report. The family report writer is clear that they are important relationships, not only in the abject or objective sense, as would apply for all children, but for this child in particular. At paragraph 116 it is noted that it would be a significant disadvantage for X if by living with his Father it decreases his engagement with his siblings as well as his Mother, with whom he has a warm relationship.
His observations show no sign that he has any fear or concern in relation to those siblings, notwithstanding the complaints that were raised about, particularly, I.
The child inclusive conference undertaken in October 2017 should have been a clear signal for these parties, particularly with the feedback that they each received from the family consultant as to a path to settlement.
When young X was interviewed, (as set out at page 4 of that report), he is described as “shy and reluctant to express opinions”. The family report writer, particularly during cross-examination, made clear that she feels that this is very much a reaction to his awareness of the conflict between his parents. Notwithstanding this, the family report writer was also clear in cross-examination that he was able to express positive opinions about his Mother and siblings. Particularly, in relation to his sisters, he commented, “They are nice to me,” and he indicated that he often plays with them at school. At that point in time, they would have all been at primary school together.
When asked if his siblings were ever mean to him he said that he sometimes says to H that he loves her and she replies, “I don’t care.” They are, after all, siblings. I do not accept that the comment by young X could, or should, be taken as implying a deliberately hurtful path of behaviour by his sister, H. Siblings argue. Siblings fight. Siblings are sometimes cruel and mean to each other.
Certainly, it would have been distressing for X - it was sufficiently distressing for him to raise it with his Father and his Mother - to have been locked in the bathroom in the dark by I, something that scared him. But it was dealt with by his Mother when she heard about it. She did not condone it. She addressed it appropriately and that behaviour ended. That should have been the end of the Father’s criticism as well.
When asked about the various arrangements that were sought – being the arrangements presumably that his parents were each then proposing – he indicated that he liked both houses and would like to spend one week in each, commenting “that would be awesome”. The Mother’s Amended Application, filed in only August 2017, changed her position. Prior to that Amended Application, she had proposed equal time, the very thing the Father now proposes.
When asked how he would feel if the existing arrangement – that being the arrangement that was ordered on the first return date of the proceedings and which subsists – five nights with his Mother, and nine with his Father each fortnight during school terms – he indicated that that this would make him “very, very sad” and that he would be happy were he to live more with his Mother.
It is tragic that these parties, since the release of that memo 13 months ago, have not been able to do better for their son. If they had turned their minds to it at that point, they could well have met the child’s then expressed desire and returned to that which, only a few months earlier, they had been consensually practising since their separation - equal care. That would now appear, at least on the Mother and Independent Children's Lawyer’s case, impractical, although the Father now seeks it.
A clue is given as to why that could not have been addressed consensually between the parties at that time on the first and third pages of the memo, wherein Mr Dempsey is quoted as indicated to the consultant, “Ms Nava is not a capable mother,” and he “does not think she is capable of being a mother to X.” Mr Dempsey has clearly demonstrated through practice that she is more than capable of being a mother to X, as well as to I and H.
The sibling relationships are also touched upon by the addendum report. At paragraph 2, X is observed to be noticeably guarded when any mention is made of his family or siblings - a decrease in his willingness to discuss those arrangements. At paragraph 3, he talks about his school and his sisters, volunteering their names, and saying that he sees I at school “but I don’t talk to her”. It then goes on to indicate:
X said this in a manner which indicated that he thought he should not interact with I at school. He said that, “I sit and eat with her,” and smiled when the family consultant said that she saw him playing with I in the puppet theatre the last time they came to Court.
That passage does suggest that this young lad has become involved in the turmoil between these parties. It is also to be observed that in the family report, that very issue - the lad interacting with his sister at school - was raised by Mr Dempsey. It was raised as a criticism of the Mother that she encourages the child to seek out his sister I at school and to interact with her and eat his lunch with her rather than play with his other peers and colleagues at the school. Again, that criticism is raised in the context of complaint that he is bullied and has no friends. Clearly, whether that complaint was ever relevant, it no longer is. He now has friends. He would no longer appear to be bullied or teased, at least not beyond the usual bounds of childhood cruelty.
Young X has a right to have his parents agree about future parenting, and yet for the currency of these proceedings they have been unable to, not because there has been any real barrier other than attitude.
The child’s right to know and be cared for by both parents should be given as fulsome an expression as possible, and I am satisfied, again, that this dictates X spending as much time as possible with each parent, albeit short of equal time.
Spending regular time and communicating with both parents will also facilitate his relationship, importantly, with his siblings - the most important relationship he has outside of his parents - as well as each of his grandparents.
The parents sharing duties and responsibilities also speaks to the allocation of parental responsibility. I am conscious of that which has fallen repeatedly from the High Court and Full Court, that to deprive a parent of a role to play in decision-making for their child is a serious and important step which the Court should contemplate with real reservation and caution. That issue was discussed eruditely by Tree J, for example, in Johns & Jasapas [2016] FamCA 471.
I will consider those issues by reference to the presumption, as well as section 60CC of the Family Law Act (supra), but at this point I make clear that I propose to make an Order for equal shared parental responsibility, but tempered with guidance as to how to break deadlocks, as it were, as proposed by the Mother. That is not in any way to reject the submission of the Independent Children's Lawyer. It is, perhaps, a compromise position, achieving the same outcome but with less brutality, at least as perceived by the Father and, possibly, young X in years to come.
The objects and principles both support the Mother’s alternate proposal - and tempered and augmented, as I have already indicated - by increasing the time so it is five rather than four nights a fortnight. That will maximise the involvement of this committed, devoted and highly competent Father in this child’s life.
I must then turn to the presumption of equal shared parental responsibility and section 61DA of the Family Law Act (supra). The presumption would apply in this case, I am satisfied, as I could not be reasonably satisfied, (nor is it agitated that I should), that a finding could be made of family violence or abuse. That does not mean that the presumption cannot be rebutted, however, on the basis that it is contrary to the child’s best interests, including a consideration of practicality.
It is germane to observe that, if an order is made with respect to equal shared parental responsibility, the obligations upon these parents are then dictated by section 65DAC of the Family Law Act (supra). They must consult with each other about the decision and make a genuine effort to come to a joint decision. The section does not compel that the decision cannot be made other than jointly, simply that there must be consultation and a genuine effort to arrive at joint decision.
Ultimately, either parent can make good decisions. Thus, support is leant, I am satisfied, to the alternate proposal of Ms Nava that the parents have equal shared parental responsibility. Although it is in its very early stages, communication is sufficient to support its practical operation and efficacy even if somewhat aspirational. The “deal breaker”, as proposed by the Mother, (that if the parties cannot agree, that the Mother will then make the decision having engaged in that consultation), is consistent with section 65DAC and the child’s best interests, ensuring that a decision is made and without the ability for further criticism or proceedings arising from the decision being made other than jointly and consensually. The child is then provided with the greatest benefit possible.
The Mother has also suggested that past consultation and discourse has typified by her “giving in” in the past. The Orders I propose to make will empower her to express her view. It will require her to consult with the Father, who has made perfectly appropriate decisions for this child’s investigation of need and address of need, the only shortcoming being, as is conceded, that the Mother might have been included at a far earlier time and more abundantly. It will ensure that both parents have the opportunity to have input but without the potential for disadvantage through absence of decision-making.
On that basis, I am satisfied that the presumption can and should apply, noting that reasonable practicality can be ameliorated through that step rather than through stripping one parent of any say.
That being so, I am obliged to consider equal and substantial and significant time. I propose to consider all arrangements at large by reference to section 60CC of the Family Law Act (supra).
I must commence with the primary considerations, being the benefit to the child of a meaningful relationship with both parents and the need to protect the child from physical or psychological harm - the latter prioritised over the former by section (2A) but, thankfully, in this case, not applying.
That leaves me to consider purely the benefit to this child of a meaningful relationship with both parents, confined at this point to parents – see Burton & Churchin & Anor [2013] FamCAFC 180.
This lad has a wonderfully profound, deep and warm relationship with each parent - what could only be described as a meaningful relationship.
The only danger to it is the enduring conflict between these parents abating, as it may be demonstrated to be by the meeting of 14 November, but still with a great deal of work to be done before that is demonstrated as a sustainable pattern of co-parenting.
The meaningful relationship that this lad has with each parent is of such quality that it will survive on any of the proposals that are put. This lad’s meaningful relationship with the Mother has subsisted and continued notwithstanding the significant change that occurred 20 months ago through the Father’s unilateral retention of the child and the subsequent Orders entered into (which have continued until the present on the basis of the Mother desiring certainty that she would practice a relationship rather than running the risk she would not).
The fact that the child’s meaningful relationship has endured is proof positive that the child’s meaningful relationship with the Father will endure if he spends less than nine nights with the Father or, as the Father proposes, a reduction to seven nights. I make clear, a consideration of reducing the Father’s time beyond seven nights to the five that I propose to is not intended to be undertaken as punitive, (although I accept that Mr Dempsey may perceive that it is so). It is not a punishment for perceived past misdeeds or behaviour. It is a reflection of what will best meet this child’s unique and special needs at this point in time - needs which the Father has played a prominent and significant role in assisting in the identification of, although subject to the difficulties described above.
The child’s meaningful relationship with both parents will better endure if the child is less exposed to the negativity that he is exposed to, I am satisfied, by reference to the above discussion of evidence, from the Father and those about him.
One would hope that the message would be received that this simply needs to stop. If it continues, it will impact on this child’s health, his happiness and, ultimately, his meaningful relationship with both parents. He may reach the point where he is so sick of hearing criticism, he absents himself from practicing a relationship with his Father to avoid it - whether for his own protection or his Mother’s. If he is forced to choose sides, he will.
He is only a few years away from adolescence, when that will become very important for him. His egocentric view of the world will then be fuelled with hormones that will make him empowered to make such a decision for himself. That decision may well be to terminate his relationship with his Father. It may be to terminate his relationship with his Mother and move to his Father - voting with his feet, as it were. Either outcome would be disastrous for this child. He needs both of his parents.
X needs his parents on the same page, as they have described, but also working together - not just parenting in the same fashion as parallel parents, but becoming and embracing genuine co-parenting. This boy has unique needs. They will be best met through time and devotion of energy to meeting those needs, rather than fuelling conflict, or fuelling negative and completely misplaced negative perceptions of the other.
I am satisfied the primary considerations support the alternate relief I have described.
Additional considerations
Views
This child’s views are important, as is submitted with some real force by counsel for Mr Dempsey. Authorities such as Harrison v Woollard (1995) FLC 92-598 and Re R children’s Wishes [2000] FamCA 43 do not discount weight being attached to the views of a child of this age. A child’s views are not taken into account having regard to their age, however, they are taking into account having regard to their maturity and level of understanding and the other circumstances which the Court thinks relevant to that weight.
What screams off the page is the child inclusive memo and this child’s statement that I have already referred to: that whilst he indicates that he would like week about, (“it would be awesome”), but if the present arrangement continued where he spends less time with his Mother and sisters than with his Father, he would be “very, very sad”. And, yet, nothing was done by these parents – individually or collectively – to change that.
He could not have been clearer to his parents what his view was. He wanted to return to the arrangement that they had been practicing for some little time. Yet, nothing was done.
The time has now passed, I am satisfied, and recriminations have become too deeply entrenched to permit that return at this point. It may be worked towards aspirationally in the future if these parents can genuinely commit to sustainable communication which requires a positive view by each of them of the other, as it were, to use the popular expression, not only “talking the talk but walking the walk”. Not saying, on the one hand, that “we are now communicating much better” but then the very next day swearing an affidavit that contains heinous and unsupported criticism, and expressing attitudes which could not support sustainable communication.
The child’s views are repeated in the addendum report when he was interviewed. He is quite clear in that report that he wants more time with his Mother and sisters. Ultimately, the family consultant, who had not ventured in either of the reports an opinion, did express an opinion during cross-examination that more time should now be more time with the Mother than the Father.
The inability of these parties to hear this child’s voice in this dispute, particularly in relation to his love for his parents and his siblings, has led to this present difficulty where, sadly, one party will perceive that they are hard done by. I make clear that the parties cannot be hard done by in these proceedings as their feelings, their emotions, their rights – non-existent as they are, but often perceived as real – are not important. What is important are the child’s best interests - his rights.
Parents have a right to be treated with dignity, appropriately so in light of the Universal Declaration of Human Rights,[3] and to be afforded due process. There ends their rights. The legitimate interests of parents, as Kirby J refers to in AMS v AIF (1999) 199 CLR 160, are not irrelevant, but they are subservient and secondary to this boy’s rights. Neither parent has a right to have X with them for any period of time - it is X’s right to be with them for the periods that will best meet and serve his needs.
[3] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948).
Both parents are equally capable of meeting his medical and psychological needs. It is his emotional needs that are problematic. They are better met by the Mother, as she holds a more positive attitude and is more supportive of the relationship - the factor of predominant importance, if not determinative, identified by the report writer.
Ultimately, I am satisfied that the child’s views might be described as supporting a real and strident desire to spend more abundant time with his Mother and siblings.
Whilst X has expressed a view in both the addendum report and the child inclusive memo to practice an equal time arrangement, I am not satisfied his views are dispositive. That is for a number of reasons.
I have some concern that by the time X was presented for the addendum report interview in June 2018, that some influence had been brought to bear upon his views. Paragraph 3, for example, is difficult to reconcile with anything other than his involvement in adult issues. He very quickly blurts out that he wants to change his school because of the travel, identical to a concern expressed by his Father, (although I do not suggest his Father has directly sought to influence his view, X seemed aware of it). But the balance of the paragraph is entirely positive as to his experience of his school, suggesting that he has no desire to change it at all and, indeed, he would consider it disadvantageous and upsetting if he were required to.
Thus, his views could not, I am satisfied, be dispositive. They are not entirely without influence, not necessarily of either parent but from the conflict of these parents.
The passage of time, through the great benefit of having the same report writer prepare three reports over a longitudinal experience, suggest that the child has “clammed up” more and more between the two times that he has been interviewed. He was initially quite willing to talk about matters, although quiet and somewhat reluctant, but by the second occasion he is guarded. But, still, even in that context, he was happy to express great positivity about his sisters and Mother.
I accept that this would support some weight being given to an interpretation of the child’s views that, whilst an equal time arrangement would satisfy him and meet his needs, that it might well feed to an innate sense of fairness, as the family report writer described, to please both of his parents - something he very deliberately expressed to the report writer as what he wanted to do for both of his parents to be happy (paragraph 4 of the addendum report). More importantly, his views express a real, earnest yearning to be spending greater time with his Mother and sisters.
Nature of the relationship of the child with each parent and others
At this point, the Court can consider relationships other than the parents. Primary amongst those are his relationships with his siblings. Those relationships have been interrupted.
From birth until April 2017, this child lived with his siblings either full-time or half of the time. That was terminated completely for a month or so, then resumed with a frugal arrangement. It is beneficial to this child to accentuate those relationships. As the report has described, they are life-long relationships, and one would hope they are relationships that will outlive the parents. No parent wishes their child to pass before them. One would hope X will not. That is to wish a long and happy life to each of these parents, but an even longer and happier life to X and his siblings, who will stay together, one would hope, throughout their life and provide support to each other in the same way that young X has described with some real warmth - expressing his interaction with his sister at school, even though that is the subject of criticism and conflict.
The nature of those sibling relationships supports the relief that the Mother seeks, subject to increasing and maximising the Father’s time and involvement.
The relationship that would be practiced with grandparents and other extended family is equal on any proposal.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spending time or communicating with the child
Neither has. If one were to consider the drafting of this section prior to the June 2012 amendments though, and the drafting of subsection (4) which required a consideration of the extent to which each parent had interfered in the other’s capacity, more is told by reference to the evidence.
Prior to June 2012, the Court was also required by the then drafted subsection (c), to consider the extent to which each parent had promoted, encouraged, fostered and facilitated the child’s relationship with the other parent - what was often erroneously referred to as the “friendly parent provision”, (suggesting that any parent who was unsupportive must be criticised, even if to be supportive was to place the child in danger, which was never the intention of the section). The section required the Court to consider the extent to which parents reasonably and appropriately supported relationships. The Mother is ahead in that term.
If considering the extent to which parents have interfered in the capacity of the other to be involved, particularly in decision making, again, the Mother is ahead. The Father’s failure to engage the Mother in the medical processes and then to use that as the basis for his criticisms is, at best, disingenuous. Chronologically, it does not align. The Father’s criticisms predate any issue with respect to exploration of this child’s medical needs. Accordingly, they could not be the basis of the criticism as the Father had already formed those views by April 2017 when he retained the child.
The school counsellor did not did not issue their report until more than two months later. Thus, I am satisfied the Father can and should have gone about things differently, and better, by involving the Mother. Why he did not, based upon suggested conflict between the parties, is to some extent manufactured. The conflict relates to the non-provision of information and the non-involvement and, thus, it is self-perpetuating when the Mother is not given that information or involvement. It favours the Mother’s case.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
Each party maintains this child while he is in their care.
As already observed, the Mother has three children in her care for whom she receives little or no financial support save from Centrelink assistance - thankfully so. She meets the children’s needs as best she can with frugal budgeting.
It is germane to observe, as the school principal reported when the Department were investigating the Father’s complaints, that the child is always presented at school with lunch, well cared for and well kept, irrespective of which parent’s care he is in.
Both receive some assistance from extended family. Neither is a person of great financial means, nor will they be in the future. The Father works limited casual work and he is to be commended for the fact that he has subjugated his participation in the workforce for his care and responsibilities as a Father. It makes no difference whether he is male or female, a Mother or a Father - he has stepped up to meeting those responsibilities and done well, save and except in his attitude towards the Mother and the inability to recognise and accept the importance of the Mother and the child’s siblings to this child.
This child loves his parents, is loved and is well cared for within the confines of the ability of the parents to lavish wealth and enjoyment on this child. These are not parents who can afford to take their child skiing each year or take their child on overseas holidays or on theme park trips to the Gold Coast. These children will see those ads on TV and these parents will have to explain why it cannot be so, much like more than 95 per cent of the parents in the world. It is a very small privileged few who can raise their children in that fashion, some of whom choose to ventilate their disputes before this Court.
These parents simply do not have those means, but they should not be criticised for it. Poor parents are good parents. They love their children and they do what they can. There is no correlation and should be no conflation between poverty and love.
The important thing, as I have already observed, from the International Convention on the Rights of the Child’s preamble is that the child grows up with happiness, love and understanding. X receives that. If he eats generic brand food rather than name brand, that will not make any difference whatsoever to the love and affection that he will feel from his parents - merely to the quality of his diet, but that is beyond the control of these parents.[4]
[4] And I do not suggest one product is superior to the other.
Why the Mother’s relative poverty is a criticism or was ever raised as one is unclear. Thankfully, it would now seem to be put aside and I accept the insightful submissions of Mr Dempsey’s counsel - who has fought Mr Dempsey’s corner hard and stridently, yet appropriately within the bounds of ethical obligation - that these parents may well receive some cathartic, if not therapeutic, benefit from this process. Again, the only tragedy or regret is that it was not received earlier, particularly from the child inclusive memo which spoke so clearly of this child’s desires.
Likely effect of change
There will be a significant change for this child passing from living with his Father predominantly to living with his Mother predominantly. He should be eased through that by having as much as time as is practicable with his Father, and I am satisfied that is less than equal but more than is proposed on the primary position of the Mother and the Independent Children's Lawyer. This child, again, has a great deal to benefit from if each of his parents are able to provide that benefit and permit the other to do so.
There is also positive change though. The child will resume living with his siblings, something of real importance to him. He will continue at the same school that he has been attending since he started school, something that is with the consent of the parents at this point, although perhaps with some reservation in light of that which is related above in relation to the Father’s past difficulties with the school. One would hope those difficulties can also be put aside as this little boy would benefit vastly from his Father, for example, attending reading groups at his school on a Friday morning when the child will be in his care, (assuming reading groups occur on Fridays) or attending to assist with sports or other activities.
The parents will need to change a few things about how they feel about each other and relate to each other for both be present at the same time without again being warned by the Principal. But they are capable of that and the love that they express for this child – and I accept wholeheartedly when Mr Dempsey asserts that he wants what is best for his child – should be their motivation.
Perhaps what is at play is that both parents have such a strident focus upon their own perception of what is best - their own individual truth - that they are unable to comprehend or apprehend any other truth, even though they co-exist.
Overall, I am satisfied that the effects for this child will be positive by the Orders I propose. The most positive change for the child will be a continuation of improvement in co-parenting and relationship.
Practical difficulty and expense
The parties live somewhat a distance apart, at least 30 minutes by car. Those difficulties are made more problematic by the Mother being dependent upon public transport - not as a slight to Sydney’s excellent public transport system, but acknowledging that these parties do not live on the same line, thus there would be a need to change trains, meet at midway points and the like.
To date, the parties have been meeting at Suburb II railway station, although there is controversy as to whether those meetings have or should have occurred at the concourse or ticket booth or at the car parking space adjacent to the station, whereas the Mother describes there is “less security or vigilance”.
The family report writer has indicated that, all things being equal and absent conflict between the parties - perhaps somewhat patriarchally and patronisingly describing, “provided the parents can behave” - changeovers would occur home to home. Ultimately, I am not satisfied that a public place inspires any greater behaviour in a parent than their own home. It may make one or other of them feel more secure or more intimidated but, ultimately, it is what is best for the child.
X deserves the dignity of going from home to home. It also indicates that, if Mr Dempsey’s involvement with this child is maximised, that changeovers can and should, for the majority of occasions – certainly during school terms – be school to school. That has the benefits the family consultant has identified and as is trite to observe, that Mr Dempsey will be able to, subject to his desiring to do so – the school principal having previously reported that he refuses to do so but that should change – be involved with young X’s friends, their parents, the school teacher - checking in on classwork, even being involved in the classroom.
They are all enormous benefits to this child as Mr Dempsey is an excellent Father. The only thing that precludes it and has precluded it in recent past is the attitude towards the school, whether based in lived in experience or not.
The distance between the parents’ homes makes that an ideal arrangement. Mr Dempsey has indicated he has some concern for the boy if he was travelling such a distance during school terms but on the basis that he accedes to an Order that the child attend Suburb J– although I need not make an Order, he will simply continue there – that travel should occur as having that trip each Thursday afternoon home and then Friday morning back and each second week, Friday afternoon home five times a fortnight is far from onerous for this little boy and is outweighed by the benefits, spending time with his Father in the car and his Father being able to interact with the school if that can be achieved.
During school holidays, changeovers should occur home to home. I appreciate that Ms Nava has the difficulties described with transport, but she also has her loving and caring Father, who suggests that he can assist from time to time and, if it is only twice during each school holiday period - eight times a year - it is a far from onerous burden and one would hope she could obtain that assistance.
The capacity of the parents to implement an arrangement for equal or substantial time is demonstrated by past practice.
It is a cruel irony that these parties practiced equal time for a very long time and now have practiced substantial and significant time for 20 months, and will now, into the future, do so again in reverse. Clearly, they can do it.
Their capacity to communicate and resolve difficulties is not ideal, but it is as good as it has been since late April 2017 and there is some hope for a positive prognosis.
The impact on the child I have already discussed.
The capacity of each of the parents to meet the child’s emotional and intellectual needs
Both of these parents can meet young X’s intellectual needs. They can both meet his emotional needs. Ms Nava is, perhaps, slightly ahead in that regard, purely by reference to the attitude that she has towards Mr Dempsey and her acceptance of him as a good parent, as opposed to Mr Dempsey’s criticisms - if now somewhat more tempered but still strident.
Maturity, sex, lifestyle and background of the child and the parents
This young child has had a rather rough ride for the last three years. His Mother has experience significant issues with her health in 2015, which whilst I am not satisfied these caused him any disadvantage, would have caused him distress. He loves his Mother a great deal and he would have been very upset if she was poorly. He has then had his parents separate. He has had the artificial, but thankfully cordial, experience of them living separately and apart under the one roof.
He has then experienced a shared care arrangement between his parents. That also led to him spending less time with his sisters, and it is no suggestion that he does not enjoy or benefit from the time he spends with his Father, it is away from his sisters and thus, the pain that any child would feel of being separated from the parent they are not spending time with is multiplied by others whom he loves and relies upon. He has then had the experiences, since April 2017, of the significant deterioration in the ability of these parents to cooperate and work together.
That is on the mend. The improvement must continue. If it does not, it will end poorly for this boy. However, I am satisfied that this factor would support a minimum change for this child, which sees a change certainly to living predominantly with the Mother but spending substantial and significant time with the Father.
Aboriginality
Neither parent identifies as Aboriginal or Torres Strait Islander and, thus, the factor is not relevant.
The attitude of the parents
This is canvased at some length above.
Family violence
This is raised as a factor in the sense of the Mother expressing behaviours which she has perceived as coercive and controlling. However, the Mother has not sought to conduct her case on the basis of alleging that family violence is an issue of significance. It is not a criticism of her, nor to suggest that she is, in any way, disingenuous in any of the evidence that she has led. As I have indicated, I accept her as a witness of truth. However, I need not consider it further on that basis.
There are no family violence orders between these parents and there never have been, although Mr Dempsey indicates in his evidence that, at one point in time after the verbal altercation between the parties which led to the child’s retention by Mr Dempsey, that he had considered obtaining such an order. Thankfully, he did not, as it would appear. from what each of the parents describes of that event and their past relationship to have been unnecessary, if not unfounded.
Whether it is preferable to avoid the institution of future proceedings
There is little that can be done in that regard.
The parents have participated in family counselling services and, thus, the Court can make Final Parenting Orders per section 65F of the Family Law Act 1975 (Cth). What they have learnt from those services is not immediately apparent, but what is learnt may not become apparent for some time. Change is a difficult process. These parents have, since shortly after their physical separation from each other, been involved in these Court proceedings, have had to deal with the issues in relation to X’s diagnosis and management and treatment of his conditions and they are real stressors.
All of those stressors have been a distraction from the knowledge and learning that they have obtained from those services sinking in and full advantage being obtained. One would hope that will be forthcoming in the not too distant future.
For all the above reasons, however, I am satisfied that Orders can and should be made as follows.
I certify that the preceding two hundred and eighty-five (285) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 30 November 2020
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