NIU & MAPLE

[2014] FamCA 421

FAMILY COURT OF AUSTRALIA

NIU & MAPLE [2014] FamCA 421

FAMILY LAW – CHILDREN – Best interests – with whom the child shall live and spend time – child’s views – capacity of each parent to cater to the child’s needs and support the relationship with the other parent – child to live with the mother and spend alternate weekends and half school holidays with the father – child to have reasonable telephone communication with both parents – where the child has lived in a shared care arrangement for some years – where the child is 11 years of age and her views are to be given reasonable weight.

FAMILY LAW – CHILDREN – Parental responsibility – mother to have sole parental responsibility – where the parties have been in constant dispute when making joint decisions about the child’s welfare.

FAMILY LAW – INJUNCTIONS – Father restrained from being in the vicinity of the mother’s residence – where the father has contravened previous injunctions – where the father purchased a property in the same street as the mother.

Family Law Act 1975 (Cth) ss 60CC, 64B
APPLICANT:	Ms Niu

RESPONDENT: Mr Maple

FILE NUMBER: (P)NCC 1862 of 2007

DATE DELIVERED: 20 June 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 24, 25 and 26 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levick

SOLICITOR FOR THE APPLICANT: Attwaters

COUNSEL FOR THE RESPONDENT: Mr Graham

SOLICITOR FOR THE RESPONDENT: Flintoff Lawyers

Orders

1. That all prior parenting orders in relation to V Maple born

   
   

   … 2002 (“the child”) are discharged.

2. That the mother have sole parental responsibility for the child with respect to the long term issues (including medical treatment) subject to specific orders in relation to education and medical treatment.

Education

1. The mother shall notify the father of the high school in which she proposes to enrol the child and shall provide the father with details of open days for parents for 2015 enrolments at that school.

2. The mother shall include in the enrolment application for the child at high school all relevant information and contact details for the father.

3. The father is at liberty to attend open days (enrolment) and events at the child’s school to which parents are invited to attend and shall let the mother know in advance whether or not he will be attending.

4. The mother shall provide a copy of these orders to the school which the child presently attends ( and the High School she attends in due course) and, to the extent that it is necessary, authorise those schools to provide to the father copies of all documents relating to the progress and welfare of the child at school (including but not limited to school reports, newsletters, applications for school photographs and invitations to events to which parents are invited).

Medical Treatment

1. The parties agree that the child should be seen by Dr K when she requires medical treatment or any other doctor from that practice if Dr K is unavailable other than in the event of medical emergency or accident which makes that course impractical AND IN THAT EVENT the father is to notify the mother immediately of treatment obtained.

Residence

1. That the child shall live with the mother.

Time and communication

1. That the child shall spend time with the father as follows:

   (a)During school terms on alternate weekends from after school Friday to before school on Monday (or Tuesday if Monday is a public holiday) commencing on Friday 2 May 2014 with the father to be responsible for collection and return of the child to school.

   (b)During school holiday periods (as nominated by whichever school the child attends):

   (i)for the first half in even numbered years commencing on the first day after the last day of term;

   (ii)for the second half in odd numbered years commencing on the mid-point day of the total holiday period; extending to the whole of the holiday period between the end of Term 2 and the beginning of Term 3.

   (c)From 4.00 pm on Christmas Day to 4.00 pm on Boxing Day in the  Christmas holiday periods when the child is spending time with the father in the second half of the holiday period commencing 25 December 2015.

   (d)On the weekend of Father’s Day from 6.00 pm on the Saturday prior to return to school on the following Monday.

   (e)At such other and/or additional times as agreed between the parties.

Suspensions

1. In the event that the child is spending time with her father on the weekend on which Mother’s Day falls, then time is suspended from 6.00 pm Saturday for the balance of the weekend period, which time shall be spent with the mother.

2. Time is suspended from 4.00 pm Christmas Day until 4.00 pm Boxing Day, which time shall be spent with the mother, when the child is spending time with the father for the first half of Christmas school holiday periods commencing 25 December 2014.

Changeovers

1. Unless otherwise stated in these Orders changeovers shall be at (or outside if closed) Mcdonald’s Family Restaurant in ...

Restraints

1. The father is restrained from being or residing within 500 metres of the mother’s place of residence.

Travel

1. Each parent is at liberty to travel overseas with the child during holiday periods defined by these Orders and to that end:

   (a)Each parent shall do all acts and things necessary to ensure that the child maintains a current passport.

   (b)The mother shall hold the child’s passport and shall provide it to the father within seven days of notice that an overseas trip is proposed provided that details of travel have been provided NOTING that details of travel must include flight numbers or other trip identification, dates of departure and return, an itinerary if known and telephone contact details for the travelling parent.

   (c)The mother shall provide the father with details of travel if she takes the child outside of Australia.

   (d)The father is to return the child’s passport to the mother promptly after the conclusion of travel or a decision not to travel.

2. Each parent is at liberty to travel within Australia with the child during holiday periods as defined by these Orders.

Telephone calls

1. Each parent shall allow the child to make and receive telephone calls from the other parent at any reasonable time.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Niu & Maple has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC1862 of 2007

Ms Niu

Applicant

And

Mr Maple

Respondent

REASONS FOR JUDGMENT

Introduction  

1. These are competing parenting applications in respect of one child, V (“the child”) aged 11.  The applicant is the mother, Ms Niu (33).  The respondent is the father, Mr Maple (40).  The parties met in mid-2000 and began living together at the end of that year. 

2. In 2002 the child V was born.

3. In late 2002 the parties married.  Six months later, in June 2003, they separated on a final basis.  The child was then nine months old.  They were divorced in 2004.

4. The mother formed a new relationship with Mr N (41).  They married on in 2007. 

5. The mother’s household consists of herself, her husband, his son A (18) and two children of the marriage, L (five) and T (almost three).

6. The father’s household consists of himself and the child V when she is living with him.  The father has lived at his current residence for about 12 months and has had a considerable number of short term residences with family and friends prior to that time. 

The applications

1. Each party seeks an order for sole parental responsibility for the child and that the child  live with that party.  Likewise, each party proposes that the child spend time with the other parent on alternate weekends from after school Friday until before school the following Monday and for half school holidays.  Other special times are proposed which are not particularly controversial.

2. The position of the father is contained in his Outline of Case document filed on 21 March 2014.[1]   

   [1]Exhibit 2

3. The position of the mother is contained in her Application filed 20 August 2012.  The mother also seeks a continuation of an order restraining the father from being or living within 500 metres of her residence.  This has been a controversial issue between the parties, the father having purchased a property in close proximity to the mother, despite such an order being in place.

History of the matter

1. The first application in this matter was filed in 2003.

2. In 2005, almost nine years ago, final  orders were made by consent.  The arrangement was for the child to live with the mother and have contact with her father in two blocks each fortnight.  A block of four nights from Thursday to Monday and one night from Thursday afternoon to Friday afternoon.  Orders were also made for where the child was to attend pre-school and kindergarten when she was old enough to commence school in 2008.

3. On 15 June 2007 the mother filed a Contravention relating to the father’s unilateral decision to withdraw the child from the nominated pre-school. 

4. On 2 July 2007 the mother filed an Initiating Application to adjust the orders in anticipation of the child starting school the following year.

5. On 6 July 2007 the father was found to have contravened the order in relation to the child’s attendance at pre-school.

6. On 18 July 2007 the father filed a Response proposing fresh orders for the child to spend week about time with both parents.

7. On 18 October 2007 interim consent orders were made in the Federal Circuit Court about provision for holidays and passports.  Thereafter the father filed an Amended Response and the mother an Amended Application.

8. A family report was prepared in February 2008.

9. On 19 March 2008 a second set of final orders was made by consent.  In summary:

   ·       The parties to have equal shared parental responsibility;

   ·       The child to live with the mother and father for equal periods of time week about with the changeover to occur after school on Monday afternoon;

   ·       Provision for special occasions, changeovers and the use of a communication diary.

10. On 13 November 2008 the mother filed a fresh Application seeking to define Christmas holiday time.

11. In late 2008 the mother’s first child L was born to her current marriage.

12. On 2 December 2008 the father filed a Response seeking to further define arrangements for telephone contact, a restraint on the mother’s husband contacting him other than in an emergency and a variation to enable him to take the child to the doctor of choice, in the event that the regular general practitioner was not available.

13. On 15 December 2008 orders were made by consent in respect of those matters.

14. On 17 February 2009 the father filed a Contravention application in respect of the mother having taken the child to medical specialists without advising him in advance, refusing to allow certain phone calls and for failing to ensure that the child attended a particular out of school activity.

15. On 17 March 2009 the mother was found to have breached orders.  Both parties were directed to attend a Keeping in Contact style program and other outstanding Contraventions were dismissed.

16. On 27 June 2011 the father moved to … W Street, Suburb S, despite an order made by consent on 19 March 2008 as follows:

    21.2 The father is restrained from entering upon [W] Street, [Suburb S] between [X] Street and [Y] Street          unless with the consent in writing of the mother.

17. In mid 2011 the mother’s second child T was born.

18. On 16 August 2011 the mother filed a Contravention application and in November amended that application, with allegations of contravention of the order in respect of the father buying the house and moving into the street where the mother lived.

19. On 27 March 2012 the Contravention against the father was proved and an order for costs against the father was made in the sum of $5,855.

20. On 20 August 2012 the mother filed a fresh Initiating Application proposing that the child live with her and that the mother have either sole parental responsibility, or at least sole decision making in relation to medical and education issues.  She also sought orders about where the child was to be  taken for medical treatment; a restraint on the father removing the child from the school during school hours and other orders in relation to provision of details when the child went away on holidays.

21. On 28 September 2012 the mother filed a Contravention application against the father for being present on a number of occasions in the street where she lived.

22. On 10 October 2012 the father filed a Response, continuing to ask for equal shared parental responsibility with a variation on how the child spent time with each of the parties, although effectively still shared care.   Interim orders were sought, again in respect of the father’s presence in W Street.

23. On 6 November 2012 the matter was adjourned for a further Contravention hearing.  A Children and Parents Issues Assessment (CAPIA) was ordered and released on 23 November 2012.  In the area of the report relating to the parents understanding of the child’s needs, Mr C reported this:

    The mother expressed a very strong view that [the child] was not coping well.  She described [the child] as often behaving in a manipulative way at home and school.  She said [the child] was frequently violent towards her four year old half-sister and volunteered examples of verbal teasing or deliberate tripping without provocation.  She reported high levels of stress in her household.

    The father expressed an equally strong view that [the child] was coping very well.  The father said the child loved having both parents living in [W] Street and that she was functioning well socially and academically.

24. In summary the family consultant identified that it would be appropriate for one parent to have sole parental responsibility, since current shared parenting was not working and not sustainable.

25. On 20 December 2012 the father’s application for interim orders was dismissed and the father was ordered to pay costs.

26. On 25 February 2013 the mother filed a further Contravention application, identifying contraventions by the father of the order in respect of coming within the stated distance of her residence in the second half of 2012.  Subsequently the mother’s applications for Contravention were withdrawn and dismissed and the mother filed a fresh application on that day in respect of the same matters.

27. On 3 May 2013 the matter came before me.  The Contravention application of the mother was heard.  The father was found to have contravened without reasonable excuse the relevant order and was ordered to enter into a 12 month Good Behaviour Bond.  A family report was ordered.

28. The Family Consultant made a strong recommendation that the equal time shared care parenting arrangement cease as soon as possible.  He also said this:[2]

    It is extremely pleasing and of enormous relief that the parents now accept that the current equal time shared parenting arrangements are not working and it is not appropriate that those arrangements continue.  Both parents propose that [the child] live predominantly with them and spend significant and substantial time with the other parent…Ironically this recent situation represents a child focused approach and is fully supported by the report writer.  It is noted that [the child] is also seeking a change from the existing equal time arrangement.

    [2]Family Report dated 14/08/2013, par 62

29. The Family Consultant recommended that the parent with whom the child predominantly lived have sole parental responsibility for her health care and recommended that in the event that the parents conflicting views on the child’s medical needs were equally plausible, then the child should live predominantly with her mother, given that that was consistent with the child’s clearly stated preference. 

30. The Family Consultant had some reservations about the extent to which that preference was stated in a completely independent way by the child.

The issues

1. The relevant issues in this matter are as follows:

   a)Which of the parents has the greater capacity to identify and meet the child’s needs; including her physical, psychological, educational and financial needs?

   b)Which of the parents has the greater capacity to support the relationship between the child and the other parent?

   c)The significance of the father buying and maintaining a property in the same street as the mother and having been found to contravene orders in regard to that matter more than once.

The evidence

1. The parties relied upon the following documents:

   a)Initiating Application of mother filed 20/08/2012;

   b)Second Amended Response by the father filed 27/09/2013 (superseded by the orders in the father’s Case Outline, filed 21/03/2014);

   c)Affidavit of mother filed 24/02/2014;

   d)Affidavit of Mr N filed 24/02/2014;

   e)Affidavit of the father filed 24/02/2014;

   f)Affidavit of H M filed 24/02/2014;

   g)Affidavit of O M filed 24/02/2014;

   h)Affidavit of Z M filed 24/02/2014;

   i)Children and Parents Issues Assessment dated 23/11/2012;

   j)Family report dated 14/08/2013.

Ms Niu, the mother

1. The mother presented as an accurate and careful witness over the course of a full day of cross-examination.  She wavered at times and showed signs of stress in her voice and demeanour.  The family consultant refers back to the first family report from February 2008 where the report writer Ms K wrote:

   The nature of the parental relationship is acrimonious, lacking trust and constructive communication.  There is a long history of conflict characterised by power struggles and destructive interactions.  The parents have been locked in a cycle of conflict and litigation which has been emotionally exhausting for both.  The parents have used the court forum as their main problem solving option in relation to disputed issues and to assert themselves.  The focus of the conflict is more associated with adult issues, rather than the needs of the child. 

2. Mr C noted that to his observation, very little had changed.  That accords with my own observation that despite being loving and committed parents, each of them is determined to prevail over the other. 

3. The mother is clearly an effective and efficient parent in a household with four children ranging between 18 (although A is an occasional member of the household, not full time) and two years of age.  She has systems and rosters.  Together with her husband she insists on the children participating, especially the child V and A, in the work of the household.  She works three days a week as a health professional and also assists her husband in managing the partnership which runs his health services practice. 

4. She has clearly been attentive to the child’s needs.  However I have the impression that she has felt immensely frustrated with the father’s attitude to parenthood, at least since separation when the child was nine months old, perhaps since she was born. 

5. The mother may have underestimated the level of interest, commitment and love the father feels for the child. Alternately she may understand that but resent what she perceives as both his lax attitude to parenting, and his willingness to allow her to do the work of parenting whilst reserving his right to criticise her efforts.  I consider it more likely to be the latter.

6. The tenor of the  cross-examination of the mother indicates that the father regards her as pedantic, obsessive and rigid in her approach to child-raising.  The mother sees herself as responsible, careful and attentive to detail.  There is some truth in both perspectives.  Unfortunately I also have the impression that because the father has been a more relaxed and indulgent parent, the mother has felt forced into the role of the stricter parent, imposing discipline and teaching manners.

1. I conclude that to some extent the child has become somewhat manipulative in both achieving what she wants from her father when her mother says no and telling each parent what they would like to hear by way of negative comments about the other household.  The mother says and the father agrees, that in 2009 the child was having trouble expressing her feelings.  As she grew older she expressed her feelings explosively from time to time.  It is hardly surprising. 

2. The mother blames the father to a considerable degree for the child’s behaviour.  However from the child’s perspective, she has a father who loves her, spends money on her quite generously and takes her away on interesting holidays.  She is clearly the apple of his eye and she knows it. 

3. In her mother’s household she is the second of four children, the only child who has a different father.  She has begun adolescence and would have very little in common with her five year old sister and two year old brother at this time.  Mr N’s son A at 18, will clearly be moving swiftly to adulthood and independence.  It is easy to see that the child might feel somewhat isolated and undervalued in the mother’s household, although I am satisfied she is not.

4. There was a significant focus on the mother’s strict adherence to orders about medical treatment for the child.  She was cross-examined on the basis that she was unbending in her insistence on the child being taken to a particular medical practice (Dr K), with a fall-back position to G Clinic or the hospital in emergencies.  Her explanation was credible.  She said that she was  looking for consistency of treatment for the child so that G Clinic notes would be forwarded back to the primary GP in a way that casual visits at other medical centres would not.  I accept that was her motivation.  Her other perspective was that she was doubtful about what the father would tell other doctors about her treatment and management of the child, because she holds the view that he is untruthful, particularly about her.

5. The mother is medically trained and the thought of treatment being inconsistent; for instance when the child had conjunctivitis which continued to relapse over two or three months, is anathema to her.  She is also pro-active.  She had the child’s eyes tested in case she needed glasses and it seems likely, having heard her evidence, her default position is a conservative one.  She opted for the child to have glasses; although she readily accepted that she had been told the long-sightedness diagnosed when the child was seven was something she could grow out of.

6. The father’s approach, which is equally understandable, is that a wait and see approach could be taken.  This is the approach that the father is more likely to take; wait for a while, see if there is a problem, act swiftly if there is.  The mother conceded that looking back she should have included the father in her decision to have the child’s eyes tested.  However I accept that she may have assumed that the father would not be interested in such an exercise, where there was no immediate problem with the child’s eyes and could well regard it as looking for trouble when there was none.[3]

   [3]Exhibit 8

7. The mother sees the father’s approach as lax.  The father sees the mother’s approach as obsessive and they do not accommodate each other’s point of view.  The victim of all of this is the child, who saw three separate optometrists over four years and does not need glasses. 

8. The exact same difficulty for the child is revealed in other health issues; her breathing difficulties, her stomach aches, her gait and her behaviour. 

9. The story played out in much the same way.  The child mentioned to her mother that she had difficulty with her breathing.  The mother followed it up and the child is on a waiting list at J Hospital on the basis of a referral from Dr K.  The mother is a health professional and interpreted the scans which were taken of the child.  She did not regard it as a serious problem, but she was not prepared to do nothing.  It is a responsible view to take.

10. Through his counsel, the father was critical of the mother for pursuing the possibility of the child having asthma, or any other condition.  The proposition was also put that she did not actually believe that there was any problem, but was pursuing the matter for her own sake; that she would have pursued it more vigorously if she was concerned.  This is to misunderstand the mother’s approach which is captured by this question and answer:

    Q:       You didn’t really have concerns about [the child’s] breathing.

    A:Not true.  My daughter reported to me that she was having trouble breathing.

11. I am satisfied that the mother would feel she had been a neglectful parent if she did not fully investigate such health issues.  Again the problem has fallen on the child, who complains to the mother that her father does not believe in her breathing difficulties and complains to the father about treatments and investigations that her mother pursues with her.

12. In relation to the child’s feet, the mother again did not mention to the father that she intended to take the child to the chiropractor about her feet.  She ended up seeing two podiatrists.  The parents continue to be in dispute about whether or not she should be using orthotics in her shoes.  The mother thinks she should but feels constrained by the father as he does not agree.  The father appears to have compromised by having some kind of insole put in her school shoes.  Both parents are dissatisfied.  The child herself must wonder whether either of her parents is genuinely interested in her own views and her own authentic expression of the symptoms that she has had.

13. When the child was referred to a psychologist in 2009,[4] the parents had a disagreement about what should happen when that psychologist went off on maternity leave.  They appear to agree that attendance on the psychologist had been helpful for the child and they both attended as required. 

    [4]Exhibit 4

14. Unfortunately when the mother took the child back to the psychologist in 2011,[5] the father became quite irate as to why she was going.  It is understandable.  The mother was having difficulties with the child’s behaviour, which she attributed to some extent to the father, but also assumed were happening in the same way in his household. 

    [5]Exhibit 5

15. The father attributed the need to go to the psychologist, as the difficulties that the child was having in the mother’s household which were nothing to do with him.  Clearly the child was unable to communicate to her parents that it was difficult managing two households with such very different rules and attitudes and that she would have appreciated some compromise and respect between her parents for her benefit.

16. The mother was cross-examined about the evidence in her affidavit about a child around the same age as the child V.[6]  Although this is not a health issue, it has played out the same way for V.  The mother is somewhat wary of this child’s family and household.  The child has a lot of older siblings and boyfriends and girlfriends staying in the house, there is smoking in the house and the mother thinks that the child is not an appropriate friend and that the family do not represent good role models for her daughter.

    [6]Affidavit of mother filed 24/02/2014, pars 176-202

17. The father clearly likes the family and enjoys the friendship between this child and his daughter.  It is a way of having an enjoyable time with her, enhanced by her friend being present. 

18. The father regards the mother as judgmental and unreasonable.  The mother regards the father as un-protective.  Each parent has given the child advice about the value of her friendship with this child.  The girl in question is a year older than the child and in the ordinary course of things, when she went off to high school, the friendship might have changed in its character, but because her parents disagree so strenuously, it is likely that the child has experienced quite a bit of emotional turmoil over the significance of this friendship.

19. The mother was quite dismissive of the reported view of the Principal on the topic of friends.  He referred to the child as having a nice group of friends in his comments to the family consultant.[7]  The mother said that she thought the Principal, Mr B, would not be able to identify the child in the playground, let alone comment on her friends.  In my view the mother has become somewhat embattled about the child and feels the need to protect her on all fronts. 

    [7]Family report dated 14/08/2013, par 57

20. The next battle that is looming is which high school the child will go to.  Naturally the parents do not agree.  The father proposes one independent school.  The mother proposes a faith based school.  They have not discussed the matter, no doubt because each one dreads what is likely to happen; conflict, disagreement and perhaps another court application.

21. In relation to discipline, the father thinks the mother is too strict.  The mother thinks the father is indulgent and to some extent, employs bribery, spending too much money on gifts, treats and outings.

22. The cross-examination of the mother about travel was instructive.  Whenever the father went away, which has been quite often inter-state or on cruises with the child, he has let the mother know and given some detail.  It might be described as “good enough” information. 

23. The mother expects full compliance with the order to provide such information and I accept was anxious unless she had the details of where the child would be staying and all contact numbers.  What it reflects is that the mother overlooks that she has fundamental faith in the father to care for the child when she is in his care, but cannot help but question him because she does not trust his approach as a parent. 

24. The father no doubt feels resentful that he has to account for every little detail, no matter what the orders say.  Unsurprisingly, given their personalities, the parties have quite different ideas about the significance of Court orders.  The father appears to regard orders as general guidelines; the mother is strictly compliant.[8]

    [8]Exhibit 7

Telephone contact

1. Sadly the mother has given up telephoning her daughter when she is with her father.  I accept that the father has directed the child not to accept calls on her own mobile phone; that he has told her not to use it when she is with him.  I consider that the mother has, out of concern for the child, withdrawn from this particular battle.  She said this:

   I don’t base my relationship with her on the phone call.  I love her and I’d like to phone, but if it doesn’t happen I’m not concerned.

2. It has probably become a charged issue for the child, where she does not look forward to phone calls with either parent since she must know by now that what she says and does is reported back through these court proceedings. 

3. I have no doubt that the mother loves her daughter very much and is hurt  on occasions when her daughter is insolent and dismissive.  Her sense of commitment is very strong and if the child is mainly in her care, there is no doubt that her mother will provide for her financially by continuing to work in the way she does, will ensure that she attends school and does not miss school for holidays and trips away, will see her educated in the school that the mother would choose, would insist on good manners and a contribution to the work of the household. 

4. The real issue is whether the mother is able to support the relationship between the child and her father, despite her genuine misgivings about his willingness and ability to be a father to the child and not just a friend.  I consider that she does have that capacity, despite a rigidity in her own views which would be enhanced if the father expressed himself more respectfully about her to their daughter.

Mr N, the mother’s husband

1. Mr N is 40.  He was born in south east Asia and has lived in Australia since he was a child.  He is a health professional.  With the assistance of the mother he is self-employed in a health services business. 

2. Mr N gave his evidence in a quietly spoken and respectful way.  His commitment and support of the mother was on display.  When he married the mother  his son A, aged almost 11 and the child V, then aged four, became a family unit. 

3. Mr N has played a significant role for the child as her step-father.  He has been sensitive in my view to her being the odd child out in the household; that is, the only child who is not biologically his child.  I accept that he has not instructed the child to refer to him as dad nor has he instructed her not to.   He has allowed her to react on the basis of her own feelings.

4. Likewise I accept his evidence that the child seeks him out for conversation and that he allows her to lead where those conversations go.  She talks to him about her ideas, her hopes for the future and friendships.  He clearly has encouraged her to highly value as good an education as she is capable of obtaining.  The child V has with the other children, participated with Mr N in swimming, bushwalking, playing board games and talking about ideas.  Mr N together with the mother, expects and I believe receives cooperation from all the children in the household in relation to the doing of the domestic chores.  Mr N has taken a lenient view of those occasions when the child has been rough with her younger sister and notes that although V does tease L, she also plays with her and looks after the younger children as a “devoted big sister”.[9] 

   [9]Affidavit of Mr N filed 24/02/2014, par 29

5. I unreservedly accept that the child has confidence in Mr N as a supportive and loving adult in her life whom she trusts, and a neutral person to talk to about the conflict between her parents which is evidently very painful for her.

6. I accept the oral evidence of Mr N that he does accept the responsibility of sharing the parenting of the child with her mother in his household and that that has extended to showing respect for her father. 

7. The proposition was put to Mr N that on an occasion when the father’s car had broken down in the street where they both owned properties, that Mr N had driven past five times laughing and waving.  He gave candid and straight forward evidence which I accept, that he had driven past, returned to the home to collect something he had forgotten for work and then driven past again on the usual path that he takes to work; that he had identified the broken down car as the father’s car, had seen the child in it and had honked his horn and waved to her.

8. Mr N, together with the mother, has had to contend with the fact that the father, in breach of Court orders, bought a house in the street within sight of their own house, which introduced both tension and  expense into their household.  The father acknowledges that he did the wrong thing in buying the house, nevertheless he still owns it, his father lives there and it must have been a most testing situation. Whatever Mr N felt about the situation he maintained restraint.

9. There is no other allegation of any kind raised against Mr N.  From his perspective, he appears to have managed the feelings of the four children in his care with considerable sensitivity and has been open to the child telling him whatever she wants to.  I consider the presence of Mr N in her life is a significant benefit to the child.

Mr Maple, the father

1. The father is now 40; he is self-employed and hard working.  He has no other children besides the child V and is not presently in a committed romantic  relationship. 

2. The father answered the great majority of questions either yes or no.  He made concessions that he was somewhat at fault for the state of the parents’ relationship, although candidly stating he thought it was more his former wife’s responsibility  than his own.

Orders 19 March 2008

1. It is a matter of some significance that the father in June 2011, moved into a property at W Street, Suburb S.  He had bought the property probably in combination with family members.  The father now concedes that this was a direct contravention of an order 21.2 made in 2008 by consent.

2. The first contravention in respect of this matter was found in March 2012 and the father was ordered to pay costs.  A further contravention was found in May 2013 and the father was placed on a 12 month Good Behaviour Bond.  The father readily conceded that his view was that the particular order should never have been made.  This is a concerning insight into his attitude to orders.  I have the impression that he has consented to orders more than once, without a settled intention to comply with them.

3. I do accept that the father believed that it might be a good thing for the child to have both parents living close by so that she could move freely between the houses.  However to accept that belief is to also accept that the father was entirely insightless about the likely outcome as opposed to the desired one.  There was obviously a degree of provocation in buying the house and breaching the order, but I consider that it was the father’s way of forcing the issue believing that once the mother saw the benefits for the child, she would adopt his approach to the orders; that is to disregard  them.

4. The impact on the child was predictable. The child’s psychologist reports that the child suffered as a result of the conflict being brought so close to home.  The father acknowledges that that happened.  However I am certain that he believes that it is the mother’s problem and that she passed up the opportunity to view the world as he does and to take a different approach.  I am confirmed in this by the fact that the father said he did not tell the mother in advance of his intention to purchase the property because he knew that she wouldn’t want him to do it.

5. I accept the proposition put by counsel for the mother that the father’s actions in this regard would have been, and were, seen by the mother as a fundamental breach of trust.  I further note that the father’s idea that the mother should be more flexible was not reflected in his contravention applications brought against the mother, mainly for the mother making appointments for the child without prior notice to him with an optometrist and a podiatrist.

6. The evidence of the mother is that if the order is not continued as a final order, she and her husband will sell their house and move.  Nevertheless the father’s oral evidence was that there would be “ways around [the mother’s] concerns” if he  moved into the property again.

Medical issues

1. In relation to the child’s glasses, the father asked and the mother agreed, for the glasses to be placed in a safe deposit box after an optometrist confirmed that she no longer needed them.  This was because the father did not trust the mother not to get the child to use the glasses.

2. In 2012 in relation to problems with the child’s feet, the father sent an email in which he confirmed his view that the child did not need orthotics in her shoes, but:

   ..  if the mother bought them and had a nominated podiatrist install them, if they were only inserted into school shoes and if the child could stop wearing them if she wished to and if either parent could say stop wearing them if they considered it appropriate, then he would agree to orthotics. 

3. The father regards himself as a compromiser but the evidence does not support that position.

4. I had the impression of the father that he has been indulgent with the child, not just in providing holidays, trips away and material goods, but in being seen to be the one who provides good times.  He had the child ring her mother from the shoe shop to get her consent to a particular pair of shoes that she wanted.  I accept counsel’s assertion that this put the mother on the spot. 

5. In relation to a question from me about the school which the child should attend, the father said that he would want input from the child into the high school she attended; because she might be manipulated into thinking he had made a bad choice.  I infer that the father was anxious at the thought that the child would be critical of him or angry with him if he chose a school she did not like.  It lends some substance to the mother’s perspective that the father does not take on the sterner side of parenting in terms of discipline and saying no.

1. I also consider that the father has reached a point where he believes that the mother has so affected the child’s thinking, that he rejects out of hand statements that she makes which are inconsistent with his own views.  This is particularly so in the matter of the child’s friendship with a neighbourhood child, E.  I have the impression that there is nothing that the child could say to her father which would persuade him that she no longer wished to have holidays and other special experiences with E as a member of the party.  To deny the child’s feelings in this way does harm to her own emotional development.

2. I accept the evidence of Mr C that it is likely that the child does have her own independent feelings, which may be supported and amplified by the mother’s feelings.  It will be more difficult for the child as she moves further into adolescence to be told that her ideas are not her own and have been instilled in her by her mother.

3. The fact that the father has installed tracking software on his daughter’s telephone to identify messages sent and social media postings, indicates that he does not have the easy trusting relationship that he suggests.   I have no doubt that the father loves his daughter and wants to do whatever he can for her to make her life enjoyable and successful.  I am not entirely satisfied that he has the capacity to meet her needs in terms of supporting her relationship with her mother, allowing her to be completely candid with him and enforcing reasonable age appropriate rules.

Z, H and O M

1. The paternal grandmother and two paternal aunts provided affidavits in support of the father. They were not  required for cross examination, for the stated and in my view sensible reason, that the parents were the central witnesses. Accordingly their evidence is unchallenged. That evidence is warmly supportive of their son/brother. Sadly it also documents two things; the breakdown of relationships between various members of the two extended families and the child’s personal efforts to bridge those gaps.

Mr C, Family Consultant

1. Mr C’s observations of the child are helpful, as is the information obtained by him from the Principal and teachers at the child’s school and from Ms Q, the psychologist who has provided therapeutic counselling for the child.

2. The family consultant reports that he reminded the child, as he had no doubt previously explained when she was seen by him in the previous year, that she did not have to move on to talk about her own situation, her own thoughts or specific views about living arrangements for herself.  However the child was keen to express her views.  Further Mr C sounded a note of caution about the child’s expressed views given her exposure to the opinions and feelings of both parents, particularly her mother’s.[10]

   [10]Family Report dated 14/08/2013, para 53

3. Taking that into account I do give reasonable weight to the child’s views.  It appears to me that her views were that she would prefer to spend the majority of her term times in her mother’s household because there were other children to play with there, namely her younger brother and sister and at times, her older step-brother A, and also because her mother had the time to sit and do homework with her, to take her to the doctors if she needed to go and to arrange tutors for her if needed.  She was looking forward to taking over A’s bedroom because he would be away at university in 2014, as has proved to be the case.  She also spoke positively about things that she does with her father, such as holidays and outings.

4. It seems to me that the child had given genuine thought to the matter and that the most enjoyable aspects of time with her father were those holidays, outings, extended family occasions and other such enjoyable times.  Whereas she recognised that her mother’s focus on education, health and contribution to family life were the main attributes of living in her mother’s home; the day by day obligations. 

5. It was strongly put to the family consultant, as it had been to the mother, that these reported views of the child’s were not her own but those imposed on her by the mother.  I do not agree.  The child has been shared between her parents all her life; for the last six years, equally.  I am comfortably certain that she has had enough of being equally shared and very much wishes to be fully part of one household, that household being the mother’s.  That is not to say that she does not challenge her mother and fight with her brothers and sisters and kick against the rules in the household.  She does all of those things.  Indeed my impression is that she tests the boundaries strenuously.  For instance when directed by her mother to pick up her swimmers and towel from where she had dropped them at the front door, she insolently responded, “Do it yourself”.

6. The mother says and I accept; that she believes in natural consequences.  Accordingly the swimmers and towel were left where they were until the child realised that she would not able to use them again, unless she picked them up and dealt with them as she had been directed, and indeed as she knew she was supposed to. 

7. The family consultant said and I accept; that the child spoke to him about understanding that what was good for her was not always exactly what she wanted.  I believe that the child delights in the concerts, sea cruises and special events which her father arranges for her and has worked out that she can maximise that enjoyable time at weekends and in holidays, whilst drawing on what she wants and needs from the mother, her step-father and her siblings in that household.

8. It would be impossible for the child not to know that her parents dislike each other, are mistrustful of each other and disapprove of each other’s parenting style.  Accordingly when she has been told by her father that her mother has put ideas in her head and that she should think with her own brain inferentially, not with her mother’s brain, she receives that as a criticism, if not an insult, knowing what her father thinks about her mother.

9. Likewise the mother’s poor opinion of the father’s parenting style has led to the child looking for evidence in her father’s household, on her aunt H’s phone and by just quietly listening to all that was said.  She has been under pressure for a long time.  The emotional outbursts described by her mother and step-father are consistent with release of that pressure from time to time, where it is safe to do so.  Loyalty to each of her parents in a context of their anger and disloyalty to each other has been hard on her.

10. Her psychologist reports a telephone call from the child’s teacher in mid-2011, nothing that the child had problems with friendships and socialisation, was possessive of one particular girl and alienated other children; that she had behaved in a way that was sneaky and manipulative.  She was reported as distracting herself and others in class due to worry about what other girls were doing.  Most concerningly, the teacher reported that the child showed no emotion about anything.

11. The child’s counselling in 2011 was one of the issues in this case.  The specific issues that were explored with the counsellor were:[11]

    ·   The child’s adjustment to her parents’ separation and their strained relationship enhancing the child’s resilience to cope with this.

    ·   Developing strategies with the child and her mother to improve the child’s behaviour, reduce anger and enhance her mood.

    ·   Improve peer relationships particularly at school.

    ·   Symptoms of anxiety and strategies to cope and improve sleep.

    [11]Exhibit 18 - Records of John Waring & Associates, orange flag M

12. Ms Q the psychologist noted that the child appeared to have benefited from counselling and demonstrated an improvement with her ability to cope with her parent’s strained relationships.  What followed was an improvement in her behaviour and friendships at school and a more positive experience generally.

13. The child does well at school.  Her NAPLAN results reflect that.[12] That is not to say that her mother is wrong about her being well behind.  She is a bright child and it could be that she is capable of being in the top bands rather than towards the top, but socially her confidence and her ability to form friendships easily have clearly been effected by the relationship between her parents, which has affected her behaviour and self-esteem.  This is reflected in the child’s comment to the family consultant that:

    If she had an important function that she was involved in she would want both her parents to come but to sit on extreme opposite sides of the room.

    [12]Exhibit 19

14. I infer that the child most understandably, does not enjoy being present when her parents are together, although she greatly enjoys being in the company of each of them.  I accept that the child’s expressed views are undoubtedly affected and influenced by her relationship with each of her parents and I take that into account, but I do not discount her views on the basis that she has been coached or manipulated into saying things, such that they are not her own.

15. The family consultanat raised with the Court through his report that if the parent’s respective views on the child’s medical needs were equally plausible and not the result of poor psychological function by the mother such that there was obsessive attention to the child’s needs, or over-servicing of them, then the child’s views and stated preference to live with her mother should be given at least some weight.  It is a helpful recommendation. 

16. I do consider that the parents views and approaches are equally plausible; that the father’s more casual laid back approach of wait and see to health problems and the mother’s front foot approach to investigate concerns when they are raised, are simply different ways of being parents equally valid and in those circumstances, I do give weight to the child’s views, but not only for that reason as discussed above.

The law

1. The objects of the Act in relation to parenting Orders are to ensure that :

   a)     Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests

   b)     To protect children from physical and psychological harm

   c)     To ensure that children receive adequate and proper parenting to help them achieve their full potential

   d)     To ensure that parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children

2. These are applications for parenting orders pursuant to s 64B(2) of the Act.  In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration.  The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3). 

3. There is also a presumption when making a parenting order that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental responsibility

1. Both parents seek sole parental responsibility and both parents acknowledged that shared parental responsibility has not worked for them or for the child.  The child wants an end to shared care. 

2. The child has been the one to experience multiple trips to see treating practitioners of all kinds, because her parents have been concerned about her health, but suspicious of the other parent’s choice of practitioner.  The child has experienced this on more than one occasion. She has been taken to Dr K, who is the parent’s first choice of general practitioner, but also to other doctors because the father does not comply strictly with the orders.  He believes it is unreasonable to expect him to do so.  The mother expects total compliance from the father.

3. Exacting highly detailed orders for the sharing of parental responsibility have been spectacularly unsuccessful in my view. Equal shared parental responsibility is not sought and has proven to be unworkable. The presumption is rebutted.

4. To some extent I support the reported view of Ms Q, the child’s psychologist as follows:

   Ms [Q] advised that while it was clear that both parents were intelligent and loved their daughter a great deal, [the mother] tended to be anxious and over-protective and [the father] tended to be unaware of insensitive to [the child’s] emotional needs and the impact of his decisions upon her (citing examples of him moving into [W] Street and going out with [the child’s] friend’s mother).

   Ms [Q] believed that [the child’s] concerns were genuine and it is likely those concerns were amplified by her mother’s reactions.[13]

   [13]Family Report dated 14/08/2013, para 56

5. The evidence suggests that the mother is somewhat over-protective.  That is reflected in the orders she seeks in the level of details she requires before the father takes the child away on holidays within Australia, and her concern about there being a positive order for overseas travel, provided travel details are given in advance. 

6. However I consider that the father is un-attentive to the child’s emotional needs and dismissive of too much analysis of feelings and reactions.  I wondered whether the father is worried that the child will grow up to be like her mother, which he might find difficult to tolerate. 

7. In any event the mother has attended to matters of parental responsibility, even if it has been in a slightly over-anxious way.  The child’s eyes are a good example.  The mother took the child to have her eyes tested in case she needed glasses.  She was advised that glasses were an option for a child like her, who is experiencing typical seven year old long sightedness, or to wait and see.  The mother opted for glasses.  Had it been up to the father, there likely would have been no optometrist unless there was a proven problem with eyesight.  Again, both approaches are well within the range of good parenting, but the proactive step of the mother led to a contravention and much more importantly, to a second and third optometrist, until the issue was settled and agreement was reached that the glasses were to be locked away.

8. In respect of some complaints, breathing problems and a problem with the child’s feet, the mother’s proactive approach has led to the father becoming engaged most appropriately to assure himself that the problem, if it exists, is a minor one and can be easily addressed.  I am confident that the mother will report accurately to the father on the steps she takes and will provide him with copies of relevant reports.

9. There is a need for both parents to be fully engaged in the child’s education and to participate to the limited level that parents do in the high school environment for the child’s benefit.  However they must remain conscious that it is not enjoyable for the child unless they mend fences and develop a friendship, which seems unlikely at this time, that the child does not enjoy seeing them together at the same place at the same time and for that reason, they will need to give each other notice of which events they are attending.

10. In circumstances where the parents agree that one of them should have sole parental responsibility, but do not agree which parent it should be, in my view the appropriate parent is the mother.  I take into account the child’s views in the way described and give them some weight, given she is the one who has experienced shared care and is entirely fed up with it.

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of their parents

1. The child has her most important relationships with each of her parents

2. The child will benefit from maintaining her relationship with both parents.

Additional considerations

1. The additional considerations are set out in s 60CC(3) of the Act.  These are:

Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The child expressed what Mr C describes as a very clear and strong view that she wished to live mostly with one parent, rather than continue with the equal time arrangement that she had experienced for the previous five years.  The child, whose parents separated when she was nine months old, would have no memory at all of having lived together with both of them.  I can easily accept that the child’s reason for this strong view being that she could “more easily get used to one set of rules rather than continuing switching between two sets of rules”.[14]

   [14]Family Report dated 14/08/2013, para 41

2. Having heard the evidence in this case, it is very clear to me that the sets of rules for the child are hugely different.  In her mother’s house, there are well communicated rules about bedtime, homework, television viewing, reading, completion of household tasks such as washing up and tidying the bedroom.  In the father’s home the child is the only other member of the household and there are no particular rules in play.  The child is allowed to do more of what she wants and not very much that she doesn’t want to do. 

3. The family consultant says that when questioned, the child was confident that she could easily manage the other parent’s rules on weekends and on school holidays.  She could think of no disadvantages of this form of parenting arrangement.  She was also dismissive of the possibility of missing one parent when not living with them, explaining that she could always  ring them if she wanted to.

4. I accept that this would be the child’s genuine view.  She has her own mobile telephone and is a confident user of that phone and of social media.  Further, approaching 12 years, her attachments are solid with each of her parents and she has no fear and there is no reason for her to have a fear; that either parent would withdraw from her life, quite the contrary.

Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child) 

1. In addition to her parents, other significant people for the child are her step-father Mr N, her younger siblings L and T and her older step-brother A, now a young adult. 

2. Her paternal grandmother and paternal aunts and paternal cousins are important relationships for her and perhaps, although I have not heard so much about them, the maternal extended family also.

Section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent

1. The parents are both fully engaged in the child’s life.  It could not be said that they had failed in making decisions about the child or spending time or communicating with her.  Rather it is that the competition between them to participate in decision making has become a problem.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or other person

1. There will be a positive benefit to the child in ceasing shared care with the consequential benefit of a reduction in conflict over decision making.

Section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

1. Each of the parents does have the capacity to meet the child’s needs, intellectual and financial.  However her mother in my view is able to meet her emotional needs, especially to express her emotions more easily than her father.

2. The father is clearly anxious about the coming years of the child’s adolescence.  He has installed spyware on the child’s telephone and has described her behaviour as “sneaky, secretive and deceptive.”[15]  He is critical of her for “not using her own brain”.  He considers she is over-influenced by the mother.  However it is the mother’s ability to talk to her daughter and to allow emotions, including anger and defiance, to be expressed and then addressed; that is more likely to assist the child through the coming years.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

[15]Affidavit of father filed 24/02/2014, Annexure ‘A’

1. The child is a girl almost 12 years, at the beginning of adolescence and in her final year of primary school.  She is an only child for her father and her mother’s first child.  She knows she is precious to them both.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. Each parent has been unable to conceal their negativity towards the other and in my view each has refused to give up the idea that the other one can be forced to change to the way that the other parent operates. 

2. If each of them could give up the idea that the other one can and should change and instead simply accept each other’s different approach to being a parent, the child’s life will be easier.  That said, the father should comply with Orders for his daughter’s sake, whatever his personal opinion of those orders is.

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. Each of these parents has brought contravention applications against the other with varying degrees of success.  A significant contravention was the father buying and living in a property in the street where the mother lives.  Non-compliance with orders by both parents has led to a great deal of litigation and trouble. 

2. At the child’s age it should be the case that she is free now to ring each parent at any reasonable time, to travel with each parent according to that parent’s willingness and ability to travel with the child, however the orders are defined with certainty for the time that she spends with her father and for the authority for the mother to manage her health and medical issues, other than in relation to attendance on Dr K as first port of call when possible.

Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant

1. This is a matter where 11 years have passed since the first parenting application.  In six and a half years the child will be an adult.  This should be the last time that the parents use the Court to define their obligations and as a means of criticising the other.

2. In the coming years, each parent will have the opportunity to lay the ground work for a friendship with their young adult daughter when she reaches 18.  Until then, the orders define the arrangements and unless otherwise agreed, for the child’s sake, the orders should be complied with on every occasion.

I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 20 June 2014.

Associate: 

Date:  20 June 2014