Nye and Novak

[2016] FCCA 2469

FEDERAL CIRCUIT COURT OF AUSTRALIA

NYE & NOVAK [2016] FCCA 2469

Catchwords:
FAMILY LAW – Parenting – 10 year old child – significant anxiety in child –  equal time arrangement since separation 4 years ago – poor parental alliance – parental capacity issues – whether equal time should continue. 

Legislation:

Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Cases cited:
H v W (1995) FLC 92-598
MRR v GR [2010] HCA 4
R and R; Children’s Wishes (2000) FLC 93-000

Applicant: MS NYE

Respondent: MR NOVAK

File Number: SYC 1131 of 2014

Judgment of: Judge Sexton

Hearing dates: 15, 16 and 23 June 2016

Date of Last Submission: 23 June 2016

Delivered at: Sydney

Orders made: 23 September 2016

REPRESENTATION

Counsel for the Applicant: Mr T. Hodgson

Counsel for the Respondent: Mr R. Schonell SC

Solicitors for the Respondent: Barkus Doolan

Counsel for the Independent Children’s Lawyer: Mr A. Ladopoulos

Solicitors for the Independent Children’s Lawyer: Legal Aid Commission

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged with the exception of orders made by consent on 23 June 2016 (which are included below). 

2. The parties have equal shared parental responsibility for the Child X born on (omitted) 2005.

3. X live with the Mother.

4. X spend time with the Father during school terms in each alternate week from Monday after school until Sunday at 5p.m, such time to recommence after each school holiday period on the Monday of the first week of the school term (whether the school term starts on the Monday or later that week) if X has spent the first half of the school holidays with the Father, and otherwise on the second Monday of the school term.  

5. Within 14 days, each party make an appointment with Ms B (X’s therapist) or another therapist approved by the Independent Children’s Lawyer, to provide her with updated information about X’s progress in and out of school, in particular in relation to her ability to express herself in the classroom and in day to day social situations.

6. In the event Ms B (or the alternative therapist) recommends further therapy for X, each party take all necessary steps to facilitate her attendance at such therapy in accordance with the therapist’s recommendations.

7. The Mother consult Ms J or an alternative therapist for such time and frequency as recommended by the therapist and within 14 days advise the Independent Children’s Lawyer of her contact details.

8. Within 14 days, the Father engage a clinical psychologist or therapist for individual therapy as recommended by Dr B and consult the therapist for such time and frequency as recommended by the therapist and advise the Independent Children’s Lawyer of the therapist’s details as soon as appointed. 

9. The Independent Children’s Lawyer provide copies of Dr B’s report and these Orders and Reasons for Judgment to each party’s therapist and to X’s therapist.

10. The Independent Children’s Lawyer’s appointment be extended for a further 6 months and the Independent Children’s Lawyer have liberty to relist the matter at 3 days’ notice to the other party within that period.

11. Within 3 calendar months, each party confirm with the Independent Children’s Lawyer their compliance with all orders relating to their individual therapy, their joint therapy and X’s therapy.

THE COURT ORDERS BY CONSENT AND ON A FINAL BASIS THAT (Orders made on 23 June 2016):

Living arrangements – during the school holidays

1. The child shall live with the Mother for one half of her school holiday periods, being the first half in odd numbered years and the second half in even numbered years.

2. The child shall live with the Father for one half of her school holiday periods, being the first half in even numbered years and the second half in odd numbered years.

3. The first half of the term 4 school holiday period shall commence at 9am on the first Monday following the conclusion of the school year and the party with whom the child is not spending time with for the first half of the Term 4 holiday period, shall spend time with the child from the conclusion of the school year until 9am on the following Monday.  The time which the child spends that that parent from the conclusion of the school year to the following Monday shall be added to the time the child spends with that parent during the Term 4 school holiday when calculating the equal division of the school holiday period.

4. During the school holiday periods, in the event that the commencement of week 1 or 2 of the holiday period falls on a long weekend or the child is not at school on a Monday, then changeover shall occur at the home of the parent with whom the child is to commence living and the parent with whom the child has been living shall deliver the child to the home of the other parent.

5. That each parent may elect to spend time with the child for one two-week period in each calendar year, during the child's school holiday periods at the conclusion of Terms 1, 2 and 3, provided that:

   (a)such time is to start at 9:00 am on the first Monday of the school holiday period and end at the start of the school day (or 9:00 am if not a school day) on the Monday two weeks later;

   (b)such election must be communicated to the other parent in writing not less than four months prior to the start of the two week period; and

   (c)at the end of the two week period, the child shall spend a continuous period of two weeks with the other parent and thereafter the week about arrangement shall resume.

6. That the child shall spend additional time with the Father as follows:

   (a)on the Father’s Day weekend, if Father’s Day does not otherwise coincide with the child being with the Father pursuant to these Orders, as follows:

   (i)from 9:00 am on Father's Day until the start of school (or 9:00 am, if not a school day) the following day; and

   (ii)the Father shall collect the child from the Mother’s home at the start of the time and return her to school or to the Mother’s home (as appropriate) at the end of the time;

   (b)on the Father’s birthday, if such birthday does not otherwise coincide with the child being with the Father pursuant to these Orders, as follows:

   (i)from the end of the school day until 6:00 pm if a school day; or

   (ii)from 9:00 am until 1:00 pm if not a school day, and

   (iii)the Father shall collect the child from school or from the Mother’s home (as appropriate) at the start of the time and return her to the Mother’s home at the end of the time;

   (c)on the child's birthday, if such birthday does not otherwise coincide with the child being with the Father pursuant to these Orders, as follows:

   (i)from the end of the school day until 6:00 pm if a school day; or

   (ii)from 9:00 am until 1:00 pm if not a school day, and

   (iii)the Father shall collect the child from school or from the Mother’s home (as appropriate) at the start of the time and return her to the Mother’s home at the end of the time; and

   (d)at such other times as the Mother and the Father agree to in writing.

7. That the child shall spend additional time with the Mother as follows:

   (a)on the Mother’s Day weekend, if Mother’s Day does not otherwise coincide with the child being with the Mother pursuant to these Orders, as follows:

   (i)from 9:00 am on Mother's Day until the start of school (or 9:00 am, if not a school day) the following day; and

   (ii)the Mother shall collect the child from the Father’s home at the start of the time and return her to school or to the Father’s home (as appropriate) at the end of the time;

   (b)on the Mother’s birthday, if such birthday does not otherwise coincide with the child being with the Father pursuant to these Orders, as follows:

   (i)from the end of the school day until 6:00 pm if a school day; or

   (ii)from 9:00 am until 1:00 pm if not a school day, and

   (iii)the Mother shall collect the child from school or from the Father’s home (as appropriate) at the start of the time and return her to the Father’s home at the end of the time;

   (c)on the child's birthday, if such birthday does not otherwise coincide with the child being with the Mother pursuant to these Orders, as follows:

   (i)from the end of the school day until 6:00 pm if a school day; or

   (ii)from 9:00 am until 1:00 pm if not a school day, and

   (iii)the Mother shall collect the child from school or from the Father’s home (as appropriate) at the start of the time and return her to the Father’s home at the end of the time; and

   (d)at such other times as the Mother and the Father agree to in writing.

8. That, unless otherwise specified in these Orders or the Mother and Father otherwise agree in writing, changeovers shall occur as follows:

   (a)at the child's school if the changeover occurs on a school day; and

   (b)for changeovers that occur at other times, the parent who has had the care of the child shall return the child to the other parent.

Telephone Communication

1. That each parent facilitate telephone communication between the child and the parent with whom the child is not living, between 7:00 pm and 8:00 pm on any evening or at such other times as may be agreed between the parents.

Authorisations and Provision of Information

Health

1. That the Mother and the Father shall:

   (a)provide each other with and keep each other advised of the names and addresses of the child’s treating doctors;

   (b)inform the each other in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to the child; and

   (c)ensure that the other parent is provided with a copy of any report by any such specialist medical consultant in relation to the child, within 14 days of the having received the report.

2. That both the Father and Mother shall be entitled to:

   (a)attend any appointments with any treating doctor or specialist medical consultant relating to the child; and

   (b)discuss the children’s condition with such treating doctor or specialist medical consultant and these Orders authorise any treating doctor or specialist medical consultant,

   (c)however, such attendance(s) shall be at the discretion of the treating doctor or specialist medical consultant.

3. That each parent shall ensure that the other parent is notified as soon as practicable if, while in his or her care:

   (a)the child is admitted to hospital;

   (b)the child is involved in a medical emergency;

   (c)suffers from a significant health issue or illness; or

   (d)the child will be required to take medication when she moves to the care of the other parent, in which case the they shall advise the other parent of the details of the medication required to be taken and shall provide the other parent with sufficient medication to cover the first 72 hours following child’s move to the other parent’s care.

Education

1. These Orders authorise any school which the child are attends from time to time to provide both the Mother and the Father with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by either parent in relation to the child.

2. That both the Mother and the Father be permitted to attend:

   (a)any school event relating to the child to which parents are ordinarily invited; and

   (b)any of the child’s extracurricular activities to which parents are ordinarily invited.

3. That neither parent shall change the child's school or enrol the child in a different school or high school or other educational institution without the consent of the other parent.

Contact Details

1. That the Mother and the Father shall notify each other:

   (a)of any proposed change to their address, at least seven (7) days before such change; and

   (b)of any proposed change to their telephone and email contact details, at least twenty-four (24) hours before such change.

Passports

1. The Mother and Father ensure that the child has a valid Australian passport at all times and do all acts and sign all documents necessary to renew the child's passport as and when required.

2. In the event that one party (“the defaulting party”) refuses to do all acts and sign all documents necessary to renew the child’s passports within 7 days of the request from other party (“the requesting party”), then

   (a)The requesting party be at liberty to apply for and then renew an Australian passport for the child and the consent of the defaulting party shall be dispensed with; and

   (b)The requirement for the defaulting party’s signature on the Australia passport application for the child be dispensed with and an Australian passport issue for the child.

3. The child’s passports when not required by the Mother or Father for overseas travel, shall be held by a mutually agreed third party and if not agreed within 14 days, then by the Registrar of this Court.

Overseas travel

1. The Mother and Father are at liberty to remove the child from the Commonwealth of Australia to travel overseas for holidays for up to 28 days, once every second year for each party, provided that:

   (a)The overseas trip coincides with the child’s time with that parent and occur in the school holiday so far as practical;

   (b)The Australian Government, Department of Foreign Affairs and Trade has not issued a travel warning advising 'not to travel' to that country;

   (c)With the exception of Bali, the travel destination is a signatory to the Hague Convention on the Civil Aspects of Child Abduction;

   (d)The travelling parent provides the non-travelling parent with 60 days written notice of their intention to take the child overseas for a holiday, such notice to include tentative dates for travel and the destination for travel.

   (e)the travelling parent shall furnish to the other parent a detailed itinerary at least fourteen (14) days prior to the date of departure including:

   (i)the departure date from and the date of return to the Commonwealth of Australia;

   (ii)the country or countries the child and the travelling parent will be travelling to;

   (iii)the dates on which the child will arrive and depart each country; and

   (iv)telephone number and address at which the child and the travelling parent can be contacted in each country;

   (f)the travelling parent shall:

   (i)organise and pay for full travel insurance for the child while the child is travelling outside of the Commonwealth of Australia, such insurance to include emergency medical evacuation back to Australia; and

   (ii)provide a copy of the insurance policy to the other parent at least 7 days before leaving the Commonwealth of Australia.

   (g)while the child is absent from the Commonwealth of Australia, the non-travelling parent shall communicate with the child during the period of travel via telephone, Skype or video conference on three occasions per week and, in the event that this is not possible, the travelling parent must notify the other parent of alternative communication arrangements; and

   (h)the child’s absence from the Commonwealth of Australia on each such occasion shall not exceed twenty-eight (28) days.

2. Unless otherwise agreed in writing, provided the travelling parent complies with Orders 31(a) to (f) then pursuant to section 11 of the Australian Passport Act 2005, the child be permitted to leave the Commonwealth of Australia with the travelling party.

3. Unless otherwise agreed in writing, if the travelling party fails to comply with Orders 31(a) to (f), then the child is not permitted to leave the Commonwealth of Australia with the travelling parent.

4. The mutually agreed third party shall provide the child’s passports to the travelling parent upon their compliance with Orders 31(a) to (f) and not less than 7 days prior to the departure date.

5. The travelling parent shall return the child’s passports to the mutually agreed third party within 7 days of the child’s return to Australia.

6. The non-travelling parent will not seek the immediate return of the child in the event the child's return to Australia is delayed due to unforeseen circumstances such as airline strikes or adverse weather conditions which are beyond the travelling parent's control, provided the travelling parent keeps the non-travelling parent fully informed of the circumstances relating to the delay.

Other matters

1. That the Mother take all steps necessary to enrol in and complete, within six (6) months of the date of these Orders:

   (a)the Triple P – Positive Parenting program; and

   (b)Keeping Kids in Mind – Parenting after Separation.

   (c)provide to the Father a copy of a certificate evidencing completion of each such course/program.

2. That the Father, within six (6) months of the date of these Orders:

   (a)take all steps necessary to complete the Parenting after Separation course/program that he had commenced as at the date of these Orders; and

   (b)provide to the Mother a copy of a certificate evidencing completion of such course/program.

3. That, within fourteen (14) days of the date of these Orders, the Mother and the Father take all steps necessary to engage with a counsellor/therapist at either The Relationspace, (“the practitioner”) for the purpose of obtaining assistance in improving their respective parenting skills and in improving their communication and co-operation with respect to their parenting of the child.

4. That the Mother and the Father attend as required by and follow the recommendations of the practitioner.

5. That the Mother and Father be equally responsible for the costs of the Mother’s and the Father’s engagement and sessions with the practitioner.

6. That the Mother and the Father be at liberty to provide to the practitioner and their respective treating therapists:

   (a)a copy of these Orders; and

   (b)a copy of the Family Report prepared by Dr B dated 25 February 2016.

7. That the Mother and the Father shall:

   (a)be restrained from:

   (i)discussing these proceedings (save and except for the effect of the terms of these Orders insofar as the Orders affect the child) in the hearing of or presence of the child;

   (ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child;

   (iii)take all reasonable steps to prevent any other person:

   (iv)discussing these proceedings (save and except for the effect of the terms of these Orders insofar as the Orders affect the child)  in the hearing of or presence of the child;

   (v)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child.

Extracurricular activities

1. The Mother and the Father shall ensure that the child attends all of the extra-curricular activities in which they are respectively enrolled as at the date of these Orders and unless otherwise agreed, both parties are restrained from unilaterally cancelling the child’s enrolment in their present extra-curricular activities.

2. In the event that either the Mother or the Father are unable to facilitate the child attending their extra-curricular activities as required by Order 44, then they shall contact the other parent as soon as possible to advise of same and the other parent shall be at liberty to collect the child and take them to the relevant extra-curricular activity and then to return the child to the parent with whom the child would otherwise be spending time at the conclusion of that extra-curricular activity.

1. Unless otherwise agreed, the Mother and Father shall not enrol the child in any extra-curricular activity without the prior consent of the other parent if the child’s participation in the extra-curricular activity occurs whilst they are living with the other parent.

IT IS NOTED that publication of this judgment under the pseudonym Nye & Novak is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1131 of 2014

MS NYE

Applicant

And

MR NOVAK

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case concerns parenting arrangements for the parties’ only child, X, aged 11 years. After an approximately 7 year period of cohabitation, the parties separated in mid-2012.  Since then, for the most part, X has lived in a week about arrangement with each party, changeovers occurring to and from school each Monday. 

2. The Mother believes that X is suffering under the present regime. The Mother seeks orders providing for X to live with her and to spend alternate weekends and one afternoon a week with her Father. The Father wants the present week and week about arrangement to continue with changeovers on Mondays, or in the alternative for X to live primarily with him and to spend 4 nights a fortnight with her Mother.

3. During the course of the hearing, the parties reached agreement on all issues, except the question of how much time X spends with each party during school terms and the question of parental responsibility.  A number of orders were made by consent on the final day of hearing which are included in the Orders at the commencement of these Reasons.  

Background

1. The parties met in 2004 and commenced a relationship when the Mother was still at school in (country omitted).  They married in (country omitted) on (omitted) 2005 when the Mother was aged 17 years and was 4 months pregnant with X. The Father was then 32 years of age.  The Mother migrated to Australia (to live with the Father in Sydney) in (omitted) 2005. She had no family in Australia.  She is now a permanent resident but not a citizen here as she has chosen to retain her (country omitted) citizenship. 

2. X was born on (omitted) 2005 in Sydney. The parties separated in mid-2012 and divorced in September 2014.    

3. The Mother, aged 29 years, was born in (country omitted) where she lived until after the parties’ marriage. She has worked in a variety of positions in Sydney and is currently employed casually as a (occupation omitted) from midday until 6 p.m. on 3 days a week.  In January 2015, the Mother started a relationship with Mr G, aged 29 years, with whom she is now living in an apartment in (omitted).  Mr G has his own businesses with flexible working hours, working much of his time from home, with occasional trips of a few days to (country omitted).  When the Mother works, Mr G collects X from school.  The Mother plans to change her working arrangements to be available to X before and after school, now that she has Mr G’s financial support.  

4. The Father, aged 44 years, is Australian. He is not in the paid workforce. He is supported by Austudy Allowance and with the financial support of his parents, while studying to work in the (omitted) industry.  He is living in his parents’ apartment in (omitted).  His sister Ms R lives in the same apartment building with her daughter A, aged 7 years, with whom X has a close relationship.  The Father has not re-partnered.

5. X is in Year 5 at (omitted) School and participates in extra-curricular activities both inside and outside school.

Litigation history

1. This is the second time the parenting matter has been before the Court for a final hearing. The Mother commenced proceedings for both parenting and property orders in February 2014.  At that time X had been living in an equal time arrangement since approximately October 2012, a few months after the parties’ separation. The Mother was then seeking an order for sole parental responsibility, for X to live with her and to spend alternate weekends with the Father.  The Father was seeking an order for him to have sole parental responsibility, for X to live with him and to spend alternate weekends with the Mother.

2. By report dated December 2014, Family Consultant Ms R recommended an order for equal shared parental responsibility and for the equal time arrangement to continue, an outcome each party told her they supported at that time.  On 12 March 2015, final parenting orders were made by consent providing for X to spend equal time with each parent, alternating week by week. The property proceedings remain pending.

3. On 21 September 2015, the Father did not return X in accordance with the Orders, alleging that X refused to return to her Mother.  It was the first week of X’s school holidays. On 22 September 2015, the Mother filed an application in a case for a recovery order.  On 7 October 2015, by way of response, the Father sought an order that X live with him and for him to have sole parental responsibility.  Judge Henderson made an order made two orders for X to be returned on 28 September 2015.  The Father did not comply with either of those orders. On 15 October 2015, X was seen by Family Consultant Ms D presenting as “extremely anxious, withdrawn, and uncomfortable.” She did not “speak a word during the interview”. Both parents described her as “having extreme social phobia and selective mutism.”[1]

   [1] Child inclusive memorandum prepared by Ms D on 15 October 2015

4. The Court was required to intervene on a third occasion before X was returned to her Mother’s care on 21 October 2015.  The Court made an order that from 2 November 2015, the equal time arrangement be reinstated.  

Orders sought by each party

1. At interview in early 2016, the Mother told Dr B that she would support the equal time arrangement continuing, with reassurance that the Father would comply with the orders.  However, she recognised that the significant communication issues between them would continue to make an equal time arrangement problematic. By the Mother’s Amended Application filed 20 May 2016, after the release of the Dr B’s report, she sought orders for X to live with her and to spend time with the Father on alternate weekends from Friday to Sunday as well as one evening each week.  This remained her written proposal at hearing, though in oral evidence she proposed the alternate weekend be extended from after school Friday until before school on Monday. The Mother did not change her position under cross examination. The Mother deposes to X being confused, unsettled and unable to express herself in the equal time arrangement.  The Mother believes X needs the stability and security of living in one household and the constancy of one carer.  This would occur if X was living primarily with the Mother “rather than being cared for by a number of different people in the Respondent’s household.”[2] 

   [2] At paragraph 33 of Mother’s affidavit sworn on 6 June 2016

2. By his Amended Response sworn 14 June 2016, the Father seeks orders for X to live week and week about with each party, for the parties to share parental responsibility, or in the alternative (if the Court is not satisfied an equal time arrangement is in X’s best interests) for X to live with him and spend 3 nights each alternate weekend and a night in the alternate week with the Mother.  The Father’s argument to Dr B for challenging the week about arrangement centred on his concerns about the Mother’s parenting capacity.  

3. On 3 June 2016, (two weeks before the hearing was listed) the Father sought an adjournment of the hearing on property and parenting issues. He deposed to the parties not being ready for the property hearing.  He deposed to the parties not having complied with trial directions, to him having retained new solicitors two days earlier, to his efforts to comply with the recommendations of Dr B and to his surprise that the Mother was seeking a sole parental responsibility order and an order for majority time with her.  The Court determined to confirm the hearing dates in relation to parenting issues only. The property application was adjourned for mention with directions for financial disclosure.  On 14 June 2016, the first day of hearing, the Father again sought an adjournment of the hearing on the basis of his counsel’s sudden unavailability.  The application was adjourned until 15 June 2015.

Expert opinion and recommendations

1. Dr B, clinical psychologist, prepared a family report for the Court dated February 2016.[3] In his opinion, it is not in X’s best interests for the equal time arrangement to continue if the parties are unable/unwilling to markedly improve their communication and their level of cooperation. In Dr B’s opinion, X is living under a damaging level of pressure.  He highlighted X’s drawing of her family to support his assessment. His report reads:[4]

   The ‘separateness of the two parties was starkly represented by X’s drawing, which showed these differences through distance of a long road drawn between the two family sub-systems and by a car blocking the road entry to each sub-family. The nature of the [equal time] arrangement has meant that the onus is placed completely on X to adjust to these vastly different households…. [this] is likely contributing to her impaired confidence in being able to interact effectively with the wider community. 

   [3] Exhibit 1

   [4] At paragraph 95 of Exhibit 1

2. Dr B considered the three options before the Court.  First, week and week about continuing; second, majority care with the Mother; and third, majority care with the Father.

3. Week and week about:  Dr B noted the parties expressed a wish to work better together but noted the same was said in the earlier family report with “little change evinced.”[5]  In his opinion, the events of September/October 2015 suggest a deterioration in the communication and cooperation between the two households, not an improvement.  He strongly opposes parallel parenting.  The more separately the parties function, the more pressure they impose on X.  His report reads:[6]

   …Should the current arrangement remain in place as it stands, the majority burden rests upon the child to tolerate and effectively traverse the parental conflict as best she can.  Based on current signs of X’s development to date, this does not augur well for the future, unless the parents are able to overcome their current level of acrimony and absent cooperation…. 

   …Should such changes be made by both parents in a united effort, it has the potential to be the most successful avenue for the unification of these two disparate worlds  and ultimately lead to significant improvements in X’s wellbeing.   

   [5] At paragraph 96(a) of Exhibit 1

   [6] At paragraph 98(A) of Exhibit 1

4. Dr B was severely critical of the parties’ inaction regarding X’s ‘selective mutism’ despite clear feedback from the (omitted) School and (omitted) School.  He noted that parental interactions remained hostile and distant with minimal communication.  In his opinion, the Court would have to be satisfied that the parties had developed a new found genuine desire regarding the importance of effective co-parenting, for the Court to order equal time. In addition, both parties need to be far more proactive in identifying and addressing X’s developmental and health needs.  The Father must subjugate his own needs to those of X. The Mother must become more assertive and involve herself in all aspects of X’s life including her school life and psychological treatment.  This may reduce the likelihood of further litigation but is “not without significant reservations”.  He directed both parties to enrol in and complete various courses in clear terms.    

5. Majority care with the Mother: X would have greater consistency of parenting and more stability in her life.  The Mother has shown herself to be a capable mother and placed X at the forefront of her considerations throughout the interview.  The Mother (compared with the Father) has demonstrated the more appropriate parenting practices, particularly having regard to the Father’s inaction during 2015 “despite a growing awareness [of] his daughter’s reportedly increasing resistance and distress.”[7] The negatives may be the Mother’s financial capacity, her limited interaction with the school and treating psychologist. However, the Mother indicated increased  motivation to be more communicative with the professionals engaged in X’s development.  If living predominantly with the Mother, Dr B recommends 5 nights a fortnight with the Father, being a block of 4 nights each alternate weekend and one night in the other week during her primary years, moving to a block of 5 nights on alternate weekends when she starts secondary school.

   [7] At paragraph 96(b) of Exhibit 1

6. Majority care with the Father:  If the Father were the majority carer, X would experience greater consistency of parenting and more stability in her daily routine. But the Father’s inaction regarding X’s emotional wellbeing during 2015, his defiance of Court orders, the negative impact of his behaviour on X and his disregard for the court ordered assessment, all point to his “willingness to serve no other purpose but his own.”  His style of parenting, encouraging dependence and ensuring “a degree of perpetual control” by him, is likely to cause X to experience significant anxiety. Dr B highlighted his concern that X was still sleeping in her Father’s bed with him, which “constrains her developing individuation… restricting her maturation and thereby exacerbating her difficulty in ‘out-growing’ her seriously impaired self-confidence.”  He was concerned by his observation of X’s reunion with the Father at interview, when she assumed a foetal position in her Father’s lap, which demonstrates dependency issues.  

7. During cross examination, Dr B said “we wouldn’t be here today if the week about process was actually working properly”.[8] He expressed particular concern for X’s elevated anxiety.   Although, having read the parties’ affidavit evidence he commended the Father’s efforts to engage in a parenting after separation programme and a Triple P parenting course since his report was released, he was not confident the Father’s apparent change in attitude represented a genuine intention to change his approach long term.  Dr B observed that the parents have seriously incompatible personalities and do not seem to be “on the same page about anything”.[9]  In summary, he said[10]:

   …the prospect of equal parenting remains quite viable. The question and the challenge for the parents is to gain a far greater insight and understanding about the enormous impact their behaviour towards each other is having on...their child.

   [8] At page 3 of 15 June 2016 transcript of proceedings

   [9] At page 4 of 15 June 2016 transcript of proceedings

   [10] At page 4 of 15 June 2016 transcript of proceedings

8. He identified the questions for the future as whether there has been sufficient insight gained by the parties to understand the importance of them working together for X, and, in light of the Father’s decision to withhold X from her Mother, whether he will respect the authority of the Court.  Dr B says there are difficulties for X if the current week about arrangement is changed, as well as potential advantages.  If living predominantly with one parent, she may have the opportunity to form a more secure attachment with one of her parents, “rather than currently being enmeshed in this competitive cycle where both attachments are being threatened effectively by the constancy of change.”[11] If a change occurs, Dr B would lean towards X living predominantly with her Mother. While this option, with a 9/5 night split each fortnight, may cause X initial distress, this would likely resolve within 12 months

   [11] At page 8 of 15 June 2016 transcript of proceedings

9. In cross examination at hearing, Dr B said that X’s interests are best served by a continuation of the equal time arrangement[12] if, and only if, the parents “do better”.[13] In his view, there is great potential for X to take ownership of the outcome should the court make a substantive change to the care arrangements and, “she may blame herself.”[14] Dr B believes the Court’s options are limited given the potential impact of change in arrangements on X.  What the Court may be able to achieve is assisting the parties to gain insight into what their actions are doing to X.[15] Her shyness, timidity and absence of confidence are behaviours described as “internalising behaviours…she is…sucking all the stress in and not wanting to express any of it.”[16]

   [12] At page 35 of 15 June 2016 transcript of proceedings

   [13] At page 36 of 15 June 2016 transcript of proceedings

   [14] At page 36 of 15 June 2016 transcript of proceedings

   [15] At page 36 of 15 June 2016 transcript of proceedings

   [16] At page 38 of 15 June 2016 transcript of proceedings

10. In answer to a question from the Mother’s counsel about the equal time option, Dr B said[17]:

    ..thinking that an additional fraction of the week one way or other is going to alter the world of this child substantively, it’s not going to happen…the parents need to understand that they are the architects of this child’s world and they are the ones that are – unless they change – irrevocably sabotaging her future.

    [17] At page 36 of 15 June 2016 transcript of proceedings

11. Dr B recommended that each party complete a 6-8 session Parenting after Separation programme, the Triple P parenting programme, and stressed the critical need for both parties to be directed to attempt mediation via an experienced accredited Family Dispute Resolution Practitioner to facilitate the parties reaching agreement on financial arrangements, future school, X’s health and medical needs, passport and travel arrangements. I note here that these recommendations were included as consent orders made at the end of the hearing.

Legal principles

1. These proceedings were commenced in February 2014 (after 7 June 2012). Relevant amendments made to the Family Law Act 1975 pursuant to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 therefore apply.

2. The legal principles are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3). Although the two primary considerations must assume greater importance than the additional considerations, when determining what orders are in the best interests of the child, I must consider all the factors before making a determination.

3. The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.

4. Section 60CC(2A) requires the Court, in applying the primary considerations, to give greater weight to the consideration set out in section 60CC(2)(b).

5. The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:

   ·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   ·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

1. The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). An additional object has been included to give effect to the Convention on the Rights of the Child.

The Father’s credit

1. I am not satisfied the Father was always a witness of truth.

2. As addressed below, I do not accept the Father’s narrative as to what occurred leading up to and including the events of September/October 2015.  Nor do I accept his explanation (over that of Dr B) as to the problems he caused Dr B in undertaking the Court ordered assessment. I note that he gave a different explanation to Dr B than he provided in his affidavit as to why he had to leave early on the first day. While the Father says he did not appreciate the importance of the meeting with Dr B, I find that the Father’s approach to the expert assessment an example of his attitude generally to the Court’s orders.  He left early on the first day; he arrived late on the second day; he failed to contact Dr B’s office as requested. I do not accept there was a breakdown in communication.  The Father was shown the letter in which it was clearly stated that he would be required for the majority of the first day.[18] I accept Dr B’s evidence that he was absolutely clear about what was required of the Father. 

   [18] At paragraph 21 of Exhibit 1

3. I do not accept the Father’s denial that he told Dr B (as reported) that X co-sleeps with him at least every second night.   

4. I do not accept the Father’s evidence that the Mother failed to facilitate X speaking to him by phone on Christmas Day 2015. I prefer Mr G’s evidence that X did speak to the Father on Christmas Day. 

5. I find that the Father attempted to mislead Family Consultant Ms D when he told her the Mother has a narcissistic personality disorder, a diagnosis confirmed by a psychologist and told Dr B that the Mother has a narcissistic and borderline personality disorder.  When questioned about the source of this belief by Dr B, it was revealed that this was only the Father’s opinion.  Dr B suggested to the Father that his conduct throughout the process, out of the two parents, demonstrated more traits along that pathway of personality type than the Mother. Dr B assessed the Father to have narcissistic personality traits.[19] 

   [19] At page 15 of 15 June 2016 transcript of proceedings

The Father’s conduct in September/October 2015

1. On 21 September 2015, the Father did not return X to the Mother in accordance with the final orders made in March 2015. The Mother was due to collect X at 10 a.m. on 21 September from the Father’s home for the first week of the school holidays and had booked and paid for a holiday house at (omitted). The Mother described X’s excitement on the phone on Sunday 20 September about the holiday the next day.  However, at 9.57a.m on Monday 21 September, three minutes before the changeover time, the Mother received an email from X in which she said she wanted to live with her Father.  The original letter[20] was dated 20 September 2015 and the subsequent email read[21]:

   …dear mummy I would like to live with daddy.  I would like to live with daddy because at your house I get scared when you get very very very mad. At your house you never help me with my homework and I never get to do my extra homework.  At daddy’s daddy helps me with my homework and my extra homework.  These are some of the reasons I want to live with daddy. 

   [20] Exhibit 4

   [21] Annexure D to Mother’s affidavit sworn on 6 June 2016

2. At 10.01a.m on 21 September 2015, the Father sent the Mother his own email in which he said that X was refusing to go back to her and wanted to live with him on a full time basis.  His email read[22]:

   X is refusing to go back to you, and has said she wants to live with me full time. She has also given me many reasons for this decision, and it appears for these reasons to be in her best interest.  You can talk to her today at 10a.m. if you want, but please don’t make a scene.  X has only agreed to the meeting if I promise to remove her immediately if there is a scene. 

   [22] Annexure E to Mother’s affidavit sworn on 6 June 2016

3. The Mother deposes to total surprise at the content of both emails. The Mother took a copy of the Court orders to the police who advised she needed to return to this Court. While the Mother spoke to X by phone that evening, the Father refused the Mother’s request for time with X, alleging X did not want to see her.     

4. On 22 September 2015, the Mother filed an Application for recovery of X. On 28 September 2015, the Court made an order for the Father to deliver X to the Court by midday on that day.  The Father failed to comply with the order.  He says that X refused to go to the Court with him and threatened to run away.  When the Father returned to the Court without X, a further order was made for the Father to deliver X to the Mother’s residence by 4 p.m. The matter was adjourned until 13 October 2015.  However, the Father did not return X on 28 September 2015, as ordered.  The Mother annexes email correspondence between herself and the Father which reveals the Father’s clear intention to ignore the Court’s orders and to keep X in his primary care.   

5. On 6 October 2015, the Mother attended X’s school to collect her after school. The school notified the Father in advance, and he attended the school. The Principal said to the Mother “it is best for X to continue to live with her Father for the present time.”[23]  X, highly distressed, was taken from her classroom, and brought to the Principal’s office.  The Father was also present, crying. The Mother deposes to X appearing “withdrawn, anxious and distressed.”[24] She decided not to exacerbate X’s distress by forcing the issue and left the school without her.  In an email to the Mother[25] dated 9 October 2015, the Father asks the Mother to agree to his proposal for him to “temporarily” primarily care for X without recourse to the Court, but with counselling at Relationships Australia. He writes that X is adamant she does not wish to live with the Mother and asserts that his proposal is the only way forward.  He tells the Mother that he is arranging counselling for X to “give her a chance to tell her story. If there are valid concerns in your house I imagine they will come out in these sessions.”  The Father offers the Mother 3 hours with X on the following Sunday evening. However, he later cancelled the Sunday evening arrangement.  On the Father’s case, he did not read the Mother’s email accepting the offer, however I find it more likely that the Father’s cancellation of the contact was related to the Mother not accepting his interim proposal for X’s living arrangements. On 12 October 2012, the Father sent the Mother an email[26] outlining his concerns about the Mother’s mental state and suggesting she undertake an anger management course.  On 13 October 2015, the Court made an order for a child inclusive conference on 15 October 2015.  On 14 October 2015, the Father took X to her first appointment with Ms B at CAFÉ (children’s counselling service). The Father told Ms B that X was refusing to go with the Mother. 

   [23] At paragraph 50 of Mother’s affidavit sworn on 6 June 2016

   [24] At paragraph 50 of Mother’s affidavit sworn on 6 June 2016

   [25] Annexure I to Mother’s affidavit sworn on 6 June 2016

   [26] Annexure I to Mother’s affidavit sworn on 6 June 2016

6. In her memorandum of 15 October 2015, Family Consultant Ms D raises serious concerns about X’s emotional state.  Ms D did not accept at face value X’s statement that she wished to live with the Father. She was critical of the Father’s “constant questioning” of X and found nothing at observation to suggest that X was fearful of her Mother.  Ms D recommended an expert report be prepared given X’s presentation to her and her “extreme social phobia” reported by her parents.

7. On 20 October 2015, the Father tells the Mother “X has said to me she only wants supervised visits with you…” and offers a supervised visit.  From 21 September until 21 October 2015, the Father permitted X to see her Mother twice only for approximately 30 minutes on one occasion and one hour on another, under the Father’s supervision. The Mother says that X, though pleased to see her Mother, presented as quiet and withdrawn on those occasions.

8. On 21 October 2015, the Court made further orders for X to be returned to the Mother from after school that day and the Father and his family were restrained from attending school or communicating with X that day. X was returned to her Mother in accordance with those orders. The Mother deposes to X being quiet as she left the school but to settling in to the Mother’s new apartment at (omitted) (which X had not seen) very quickly. The Court had ordered the week about arrangement be reinstated from 2 November 2015.  However, on 25 October 2015, the Father emailed the Mother[27] questioning whether the Court was in error on 21 October 2015 in relation to X’s return date to him, asking the Mother to return X the following day (in accordance with his interpretation of the March 2015 orders) or in the alternative suggesting that X remain in his care for two consecutive weeks when she was returned on 2 November (as ordered).

   [27] Exhibit 6

9. Though not spending time with him, X was communicating with the Father by telephone between 21 October and 2 November. The Mother heard the Father asking “who is in the room with you?” and when X said “it’s mummy” the Father yelled “you told me you were alone”.[28]  On 26 October 2015, the Mother sent an email to the Father[29] asking him to “choose wisely the way you speak to X on her nightly calls.”  The Mother suggests that he think about allowing X to speak freely in front of either parent so she does not feel she has to hide anything from either of them.  She asks that he keep the conversations positive so “our daughter [can] go to sleep reassured that she is loved by both her parents and be relaxed rather than stressed and upset.” The Father’s reaction to this letter was immediate stating[30], “You are a liar Ms Nye. Plain and simple… You are the manipulator and you are the liar. Stop harassing me.”  

   [28] Exhibit 5

   [29] Exhibit 5

   [30] Exhibit 5

10. On 28 October 2015, X was taken from school to the police station by a mother of one of her friends, without notice to the school or to the Mother.  It is contended that X told her friend that she knew how to get to the Father’s home and the friend’s mother contacted him.  The Father says he was worried that X may run away and says he asked the mother to pass on his concerns to X. The Father does not explain why the friend’s mother took the action she did. The police returned X to the school.  X recommenced the week about arrangement on 2 November 2015. 

11. The Father explains his conduct on 21 September 2015 and following at interview with Dr B, in his affidavit and in cross examination. He contends that X had been increasingly resistant to returning to her Mother for many months, particularly between August and September 2015.  He had not discussed the problem with the Mother because she had blocked his number on her phone.  On Monday 21 September 2015, X had refused to go down to the foyer to meet the Mother.  She was in a “heightened state of defiance, more than I have seen on any previous occasion.  This involved verbally [sic] defiance and also physically hiding in her bedroom and bathroom.”[31] The Father said he did not know how to handle the situation. He believed X was justifiably fearful of her Mother.  He suggested to X that she write the email to her Mother (as above) and inserted the Mother’s address on the email.  X wrote the email without his assistance and sent it. He told X she should call her Mother, which X refused to do.  The Father then sent his own email to the Mother to help her “to understand how X was feeling”.[32] He invited the Mother to come to his apartment to talk to X several times over the next 2 hours but she declined the opportunity.[33] Whilst she spoke to her Mother that evening, he says that X remained adamant the following day that she did not want time alone with her Mother. The Father wanted to attend mediation but the Mother ignored his requests.  He was served with the Mother’s Application in a Case on 28 September 2015 and appeared on his own behalf before Judge Henderson on that day.  When the order was made for him to bring X to Court by midday the same day, he went home and told X she had to come to the Court. She refused and said, “I quit court.”[34] He deposes to her[35] “kicking and screaming and then [she] locked herself in the bathroom and refused to come out.” The Father returned to Court without X and left his sister Ms R to supervise.  He was then ordered to deliver X to court at 4 p.m. He says, “I felt like I wasn’t being heard” [by Judge Henderson].  The Father could not persuade X to come to court, so took her to the GP who referred her to a child psychologist.  X called her Mother twice and said, “I want to live with Daddy.”[36]  He prevented the Mother from collecting X from school on 6 October 2015 because “X was upset by this.”  He notified the school and involved the Principal, who pulled X out of class.  X was “crying, screaming, hiding and clinging onto things in the classroom to avoid going with Ms Nye”. The Principal then determined that X should not go with her Mother. 

    [31] At paragraph 141 of Father’s affidavit sworn on 12 June 2016

    [32] At paragraph 147 of Father’s affidavit sworn on 12 June 2016

    [33] At paragraph 148 of Father’s affidavit sworn on 12 June 2016

    [34] At paragraph 156 of Father’s affidavit sworn on 12 June 2016

    [35] At paragraph 157 of Father’s affidavit sworn on 12 June 2016

    [36] At paragraph 169 of Father’s affidavit sworn on 12 June 2016

12. The Father emailed the Mother over the next few days suggesting mediation and counselling. The Mother would not talk to him without her lawyer, said that she was getting an “AVO against him”, and alleged that he had threatened her.  

13. After the conference with Family Consultant Ms D on 15 October 2015, X again told the Father she did not want to go to her Mother.   On 17 October 2015, because X asked him to be there, the Father ‘supervised’ X spending time with the Mother, telling her to talk to the Mother about why she did not want to spend time with her. 

14. The Father thought the Judge had made a mistake on 21 October 2015, in relation to the date X was to be returned to him but the Mother would not agree to vary the Court’s order.  On 28 October 2015, the Father contends that a mother of one of X’s friend’s told him, “X said to (omitted) that she knows how to get to your house via (omitted).”  The Father said that (omitted) should tell X not to do that as it would be dangerous.  (omitted’s) mother then took X to the police station and left her there.  She was taken back to school and remained in her Mother’s care until the week about arrangement recommenced on 2 November 2015.     

15. I find the narrative the Mother gave Dr B of the events of 21 September 2015 until X’s return to the Mother on 21 October, consistent with her affidavit evidence and the observations of the Court experts.  I agree with Dr B that the Father failed to narrate the story accurately:  

    a)I am satisfied that X was chatting excitedly to her Mother on the afternoon of 20th September 2015, the day before they were due to go away on holidays together and do not accept that she woke the next day demanding to live with her Father and refusing to go on a beach holiday with her Mother on the basis she was scared of her Mother and wanted to live with her Father because of his commitment and her lack of commitment to her homework.  There is no evidence to support any such finding about homework in each household. X’s school reports say homework was consistently done in each household.  There is no evidence to support a finding that the Mother caused X to be fearful.  Notably, after X resumed spending time with her Mother, the Father told Dr B that the Mother had completely changed her parenting approach. X was no longer neglected, was now “standing up to her Mother”, had   “control and power” and “Ms Nye is an excellent mother now.”  There is no explanation offered as to why the Mother would have suddenly changed her parenting approach in this way as the Father had claimed.  There is no evidence to suggest that X was resistant to time with her Mother in the months before September.  Notably, the school had not observed any resistance to going to her Mother prior to the Father keeping her in September 2015.  The Principal found no differences in her behaviour on changeover days from either parent’s residence to the other at any time, nor when she was in the care of one parent or the other.[37] 

    [37] At page 33 of Exhibit 1

    b)I am satisfied there was no change in the Mother’s parenting approach and no need for a change. I find the Father’s actions unjustified and the timing noteworthy. The orders of March 2015 permitted the Mother to travel overseas with X from her 10th birthday in (omitted) 2015, the Mother was shortly to move in with her partner Mr G and the Mother had planned a holiday with X. The Mother told Dr B “usually whenever I plan something, Mr Novak will try to ruin it.”[38]

    c)I do not accept that X wrote the letter to her Mother without at least significant input from the Father, and find it probable that the letter was drafted on 20^th September, (as it was dated) not the 21^st.  

    d)I do not accept that if X had been resistant to going to her Mother for many months, as the Father contends, that he would not have mentioned it to his sister Ms R, whom he sees almost daily, yet that was Ms R’s evidence. 

    e)I accept Ms R’s evidence that the Father was very distressed when he returned from Court on 28 September 2015, with an order that he take X to the Court and find it likely that X was highly distressed and disturbed by witnessing and being directly involved in her Father’s overt distress.  Ms R says that the Father was upset and X defiantly refused to go. 

    f)I am satisfied the Father intended to take control of the situation by emailing the Mother directly (without lawyer or Court interference) in an attempt to intimidate and control her, with complete disregard for the Court’s orders of March 2015 and 28 September 2015. I find the Father’s emails to the Mother during this period directive, controlling and likely to have been intimidating to the Mother. 

    g)I am not satisfied that the Father made adequate efforts to facilitate X spending time with the Mother during the 4 week period of his retention of X.  I found the Father’s answers to questions on this issue unreliable and unsatisfactory.  He presented as uncomfortable and evasive.  

    h)I find that even when the Court made further orders on 21 October 2015, the Father again attempted to control the Mother and avoid the authority of the Court by his email to her of 25 October questioning the Court’s orders[39]. I find his response to her email about the content of his phone calls dated 26 October 2015, aggressive and revealing.   

    i)I find the Father directly and inappropriately involved X in his ongoing battle with the Mother from 21 September until 21 October 2015 and directly and inappropriately involved X in the Court process on 28 September 2015.  I find his actions are likely to have caused X significant distress and confusion.

    j)I find the Father’s inclusion of only part of the Mother’s text to him[40] on 30 September 2015 to support his case, intentionally misleading, including only the part in which she says he is a “great father…” and “I don’t want any money or anything and I will tell the Court that all I want is to see my daughter.  This has been the hardest week of my life.” He omitted the Mother’s plea to him in the same email, “please find it in your heart to let me hug my daughter and see her beautiful smile.  She is my world and all I have here…Please, it would mean so much to me.”[41]  

    k)I find it noteworthy that the Father was a ‘close friend’ (according to the Principal’s report to Dr B) of (omitted’s) mother and that it is likely that the Father was directly involved in (omitted’s) mother’s decision to take X from school to the police station. 

    [38] At page 20 of Exhibit 1

    [39] Exhibit 6

    [40] At paragraph 282 of Father’s affidavit sworn on 12 June 2016

    [41] Exhibit 3

1. Dr B was highly critical of the Father’s decision to retain X in breach of Court orders.  He said that:

   …limiting contact in the form of breaching orders and encouraging disregard of the other parent impacts negatively on the child’s relationship with the parent but even more importantly, negatively impacts upon the child’s view of themself.  Any disparaging comment made about either parent in ear-shot of the child causes harm to the child, particularly the child’s self-esteem which has been identified as an area of pre-existing sensitivity.[42]

   [42] At paragraph 93 of Exhibit 1

2. Dr B observed the Father to become highly defensive when asked to reflect on or to take personal responsibility for many of the issues under review.  He presented a “posture of elevated self-confidence”.  He considers the Mother a subordinate “with whom he is reportedly quite autocratic, condemnatory and often appearing self-righteous.  Many of the above features are consistent with elevated narcissistic personality traits.”[43]

   [43] At paragraph 34 of Exhibit 1

3. I agree with Dr B when he says, “throughout this narrative [the Father] evidenced little insight into his contribution to these events.”[44] When asked about how the shared care arrangements resumed, the Father told Dr B a “forced changeover” at school was necessary as it was “the only way to make X go with her Mother.”  When challenged as to details, the Father became “visibly uncomfortable”, said he was “getting anxious” and asked for a break because he did not appreciate how Dr B was speaking to him.  In relation to his non-compliance with Court orders, the Father told Dr B that whilst the Court was “upset…the court also recognised there was an underlying issue with [the Mother’s] parenting.”[45] Dr B says the Father appeared unable to consider that the Court may have been “upset” because of his non-compliance with orders. When the Mother attended the school to collect X on 6 October, Dr B says the Father failed to disclose his part in causing yet “another emotional tug-of-war between the parents, but this time in front of the Principal.”[46] He repeatedly criticised the Mother during his narrative of X’s return to the Mother, without disclosing the Court’s or the Mother’s repeated efforts to get her back.  

   [44] At paragraph 23 of Exhibit 1

   [45] At paragraph 24 of Exhibit 1

   [46] At paragraph 25 of Exhibit 1

4. Dr B believes that taking into account her age and X’s persistent desire for fairness, the prospect that in September 2015 X saw her mother as re-partnered and her Father as ‘lonely’ (and the Father likely to be expressing this to X), probably set the scene for X’s ‘reported’ resistance to going to her Mother’s, though he finds the evidence regarding the reality or strength of this remains equivocal.  The fact that the Father allegedly was aware of X’s increasing resistance to returning to her Mother each week for 6 months or more, yet electing not to tell the Mother, or seek any professional assistance, raises concerns.  His actions in simply sending an email to communicate he would not be complying with Court orders which necessitated the Court making repeated orders to achieve compliance, put X in “highly distressing situations”.[47]

   [47] At paragraph 96(a) of Exhibit 1

5. I agree with Dr B’s opinion.  I find the Father’s conduct during September/October 2015 demonstrates a serious lack of insight into X’s needs.  I find his repeated failure to comply with the Court’s orders a disturbing demonstration of the Father’s narcissistic personality traits, identified by Dr B.    

6. I give significant weight to my findings here. 

PRIMARY CONSIDERATIONS  

The benefit to the children of having a meaningful relationship with both the children’s parents

1. It is common ground that both parents love X and neither seeks to diminish the strength of her relationship with the other parent.  On each party’s case, X will spend substantial and significant time with the other parent. The Mother describes her close and loving relationship with X, to her excitement seeing her after school, to her physical affection. They play games and read together and the Mother helps her with homework. The Father also deposes to his routine with X.  I am satisfied he engages X in a diverse range of activities, including time with her cousin and his close-knit family. Each party facilitates and supports X’s social life with her friends and her involvement in a number of extracurricular activities.   

2. I am satisfied that on each party’s proposal, X will continue to benefit from a meaningful relationship with both her parents.

The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. “Abuse” is defined in section 4 of the Family Law Act 1975 as:

   (a)     an assault, including a sexual assault, of the child; or

   (b)     a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)     serious neglect of the child.”

2. Section 4AB(3)  says that “For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.”

3. I am not satisfied that X is at risk of abuse. 

4. “Neglect” is not defined in the Family Law Act and therefore must be given its ordinary meaning. I find no evidence of X being neglected in either party’s household. 

5. Family violence is defined at section 4AB(1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family….or causes the family member to be fearful.”

6. The Mother told Family Consultant Ms D in October 2015 that the marriage was characterised by “altercations, yelling and shouting”, often in front of X. She said the Father was “verbally abusive and manipulative towards her”.  The Father, on the other hand, alleged the Mother was “psychologically harmful, intimidating and very unpredictable regarding her moods and behaviour.” He claimed the Mother was verbally abusive towards him. 

7. I accept each party’s evidence about verbally abusive exchanges between them during the period of cohabitation, often in X’s presence. I accept the Mother’s evidence that the Father behaved in a controlling manner towards her during the relationship and that she felt intimidated by him.  I note that Dr B’s assessment of the Father’s personality traits is consistent with the Mother’s evidence about the Father’s behaviours.   

8. I am not satisfied X is at risk of physical harm in either party’s household.  While I have concerns about X’s potential exposure to psychological harm in the Father’s household, I do not find violence, abuse or neglect to be the cause of such risk.  This factor therefore does not apply.

ADDITIONAL CONSIDERATIONS

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the child’s views

1. In December 2014, X told Family Consultant Ms R that she was used to the week about arrangement, loved both her parents and did not want her situation to change.  At interview with Family Consultant Ms D in October 2015, X said she wanted to live with her Father and she also said, “I want all this to be over.” After her interview, the Father asked her in the Consultant’s presence whether she had had a “chance to discuss about how she was feeling and what she wanted the Judge to know.” X nodded in response. I share Dr B’s opinion that the Father’s questioning of X was completely inappropriate and suggests that X is being used as “a potential decision-maker”.[48] Family Consultant Ms D said X’s expressed view was not necessarily her genuine view.  It is noteworthy that X’s school Principal expressed some concern about “whether X was being overtly influenced to express such a wish about not living with Ms Nye.”[49]

   [48] At page 25 of 15 June 2016 transcript of proceedings

   [49] At paragraph 80 of Exhibit 1

2. At interview with Dr B in early 2016, X did not want the equal time arrangement to change.  However, Dr B cautions that children of X’s stage of development want it to be “fair” and it was the Mother’s belief that X’s motivation for seeking to continue the equal time arrangement was X’s wish to be “fair” to each parent.   

3. The Full Court in H v W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:

   …including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.

4. X has been in the centre of a tug of war between her parents from a young age.  Her Father has inappropriately involved her in the conflict and in the Court process.  I agree with Dr B that the Father has encouraged X’s emotional dependence on him, and during the September/October 2015 period, actively obstructed her relationship with her Mother, and engaged the school and others to support his cause against the Mother.  In these circumstances, I am not satisfied that X’s views should be given more than minimal weight. 

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. I have addressed X’s relationships with her parents.

2. I am satisfied that X has a close relationship with the Father’s sister, Ms R, who lives in the same apartment block as the Father and with whom X spends a lot of time when in the Father’s care.  Ms R has known X since she was born and deposes to being “extremely close”[50] to the Mother when the parties were married.  X and Ms R’s daughter A, aged 7 years, are cousins and close friends and play together on most days when X is in her Father’s care, put on concerts together, play in the apartment block heated pool or gardens and in each other’s homes. The Father and his sister share meals together several times a week, go to local cafes together, holiday together with the two girls, having recently enjoyed trips to (omitted) and the (omitted).  Approximately twice a year, the Father, his parents, his sister and A travel interstate with X or to the mountains.  I accept the Father’s sister’s evidence that X is engaged in a diverse range of child focussed activities/excursions when with her Father and the extended paternal family.  The Father and his sister rely on each other to care for each other’s children when needed and the two children enjoy occasional sleepovers.  Given their close relationship, I found Ms R’s evidence that she never talked to X about her resistance to spending time with her Mother during the September/October period, or her apparent wish to remain with her Father, significant.   

   [50] At paragraph 3 of Ms R’s affidavit sworn on 12 June 2016

3. The paternal grandparents live with the Father’s sister when they are in Sydney, often for several days of the alternate weeks X spends with her Father.  I accept X has close relationships with both her paternal grandparents and they all enjoy their routine alternate Monday evening meals together. 

4. X relates well to Mr G. The Mother deposes to a “warm and comfortable relationship” between them. They play games together, go for walks, to the beach, play (hobbies omitted) as well as enjoying outings as a family.  Sometimes Mr G helps X with her homework, particularly English. Dr B found that Mr G appropriately acknowledged his secondary role to that of the Father, and his view of the importance of both parents’ role in X’s life.     

The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long‑term issues in relation to the child; to spend time with the child; and to communicate with the child.

1. I have nothing to add here.

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

1. Neither party has a child support liability.  The Father is not in paid employment and relies on his parents for financial support. The Mother earns a modest casual income and since October 2015, has relied on Mr G for financial support.

2. Each party contributes to the costs of a number of X’s extracurricular activities and uniforms; the Father assisted by his parents and since October 2015, the Mother assisted by Mr G. The Mother solely meets the costs of X’s tutoring.  Mr G provides financial assistance for the purchase of X’s clothes, shoes and school items.  Mr G took X to an optometrist and paid for the appointment and her prescription glasses. Mr G is paying the rent for the Mother and X and provides the Mother with a car to transport X.   

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 any other child, or other person (including any grandparent or other relative of the child) with whom the he or she has been living.

1. This is a significant factor. X has been in a week about arrangement for almost 4 years, with the exception of the month in 2015 when the Father retained her. According to Dr B, X is at an age when children want the arrangements to be ‘fair’.  Dr B fears that given her significant vulnerabilities, if the week and week about arrangement is changed, X may internalise feelings of blame for the impact on the ‘losing’ parent.  Dr B believes that a move to X spending majority time with the Mother will cause the Father to react badly and given his limited insight into X’s emotional needs, the Father is likely to involve X.  I agree with his opinion and take this finding into account.

2. I address these issues further when discussing X in more detail later in these Reasons. 

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. This is not a factor here.  Neither party lives far from X’s school or from each other’s home.

The capacity of each of the child’s parents and any other person (including grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

1. Dr B highlights deficits in each party’s parenting capacity and recommends that each party participate in parenting courses and individual therapy. In Dr B’s view, neither party has made appropriate efforts to address X’s challenges.  They made a poor choice of school for her originally, failed to engage with her progress at that school and took no steps to help her when given feedback about her presentation at both schools. While the Father finally arranged counselling for X, each party took far too long to recognise the extent of her anxiety and her need for professional help. 

2. The Mother presented to Dr B as “highly submissive and quite dependent.”[51] She steps back or gives in which has not been helpful to X.  In his opinion, the Mother needs to be more authoritative in respect to X’s welfare.  At the other extreme, Dr B says the Father has “an excessive sense of self”, wanting acknowledgement or admiration for himself.  In his opinion, as the Father was not getting enough of this from the Mother, their relationship broke down. Dr B points out that the Mother’s very young age when the parties married, her poor English when she arrived in Australia and the Father’s controlling behaviour, put the Mother in a very vulnerable position from the beginning, particularly as she has a submissive and dependent personality. I accept his opinion that the Mother’s dependency would fuel the Father’s narcissism.

   [51] At page 9 of 15 June 2016 transcript of proceedings

3. However, Dr B reports that the Mother gave considered responses at interview, presenting as calm and measured.  She was noted to speak respectfully of all parties including [the Father] with whom she has prolonged conflict. Dr B sees the Mother having the greater capacity to promote X’s individuation than the Father.[52]

   [52] At page 11 of 15 June 2016 transcript of proceedings

4. I find that the Mother remained focussed on X’s needs throughout the period X was kept away from her.  She did not involve the police as she could have asked the Court to order. She did not force X to leave the school with her on 6 October 2015 in the face of X’s awful distress and what I find was the Father’s emotional manipulation in X’s presence. I am satisfied the Mother managed the transition for X back to her on 21 October 2015 in an authoritative, appropriate and loving manner.    

5. I accept Dr B’s opinion that the Father demonstrates narcissistic personality traits; that he sees X as an extension of himself, that he knows best, knows what X is thinking, takes action he believes is best for her but as the events of September 2015 showed, “were potentially far more damaging to the child had he been able to look at things through X’s eyes.”[53] In Dr B’s view, the Father needs to be far more sensitive to the welfare of X, to foster her as an independent person.  He referred to the Father’s report that X ends up in his bed up to 3 or more times a week, which he described as “completely inappropriate”, especially as this is a Father who formed an intimate relationship with a just turned 17 year old [the Mother].[54] Dr B says he had a very clear discussion with the Father about this. Dr B was also worried by X’s behaviour on reunion with the Father after his interview.  X had been under the supervision of an intern. On reunion, the Father immediately encouraged X to hop on his lap and she assumed the foetal position in posture until Dr B asked that he separate from her.[55] Dr B found it noteworthy that X drew herself (in her family drawing at interview) as her Father’s reflection, “which may partially be the result of the Father’s parenting style”[56] which encourages dependence.  Dr B said that the Father needs personal therapy in relation to his capacity to form relationships, both with children and with adults. Dr B says the Father’s sense of entitlement combined with his lack of sensitivity to the wants and needs of others, impacts on X in that it results in her anxiety features, reduces her self-confidence and causes her to be fearful about confronting the world.  The Father needs to learn emotionally attuned parenting, so he can separate from X while still being an active care provider, actually “learning to celebrate and promote her independence from him rather than her dependence upon him.”[57]

   [53] At page 8 of 15 June 2016 transcript of proceedings

   [54] At page 69 of 15 June 2016 transcript of proceedings

   [55] At page 70 of 15 June 2016 transcript of proceedings

   [56] At page 40 of Exhibit 1

   [57] At page 8 of 15 June 2016 transcript of proceedings

6. I share Dr B’s opinion that the Father has demonstrated a limited ability to self-reflect or to consider the emotional impact of his behaviour on X.  He has demonstrated an unwillingness/inability to accept responsibility for his significant contribution to X’s ongoing struggle with anxiety.  I find that the Father involved X inappropriately at the child inclusive conference when he asked her whether she had the opportunity to say what she wanted the Judge to know and having seen her only a short time before, asked her whether she had vomited or coughed.  Dr B says his approach is concerning in the sense of, “potential infantilisation behaviour of seeking to make the child less confident.”[58]

   [58] At page 75 of 15 June 2016 transcript of proceedings

1. I agree with Dr B that the Father needs ongoing therapeutic assistance to learn ‘emotional parenting’. As already noted, the Father’s conduct during the September/October 2015 period is troubling, particularly the way he orchestrated the events of 21 September, the way he avoided compliance with the Court orders of 28 September and the way he involved himself at the school on 6 October 2015.  Managed appropriately by the Father, I find that X could have been spared the emotional trauma of all those events.

2. I agree with Dr B that the Mother is more child-focused than the Father.  I agree with him when he says the Mother can separate her needs and emotional states from that of X and can focus and direct her attention on X herself. Whilst Dr B raised the possibility that the Mother may be less emotionally stable than the Father, given the Father’s allegation in 2015 of the Mother’s “reported anger and reduced frustration tolerance with X”[59] I find no evidence to support such a finding. 

   [59] At page 8 of 15 June 2016 transcript of proceedings

3. I have regard to the fact that since the release of Dr B’s report, the Father has done a 6 week Triple P parenting skills programme and had started a parenting after separation course at the time of hearing.   

4. I give significant weight to my findings under this factor.  

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.

1. The Mother breastfed X until she was 12 months of age but I am satisfied that both parties were actively involved in her care prior to her starting school. From the date of separation in mid-2012 until approximately October 2012, X lived primarily with the Mother, spending time with the Father on alternate weekends. Thereafter the parties arranged for X to spend equal time with each party, on a week about basis.  

2. X was 7 years of age when the equal time arrangement started. At the first Family Report interviews in December 2014, both parents said the week about arrangement was working well for X, who they said “is settled and doing comparably well at school.”  However, both remarked that X never talked about the other parent when in their care. Neither party raised concerns regarding X’s health, behaviour or overall development, “even though she can come across as anxious or shy”.  However, Ms R observed X’s “timidity and inhibition”; she had difficulty engaging with X verbally.  She reported[60], “when [X] spoke, she spoke in very soft hushed tones and tended to answer and respond to the family consultant with relatively short answers.”   

   [60] At paragraph 19 of Exhibit 7

3. In October 2015, when the Father had kept X in his care and away from her Mother for a month, the parties and X were seen by another Family Consultant. The parties described X to Family Consultant Ms D as having “extreme social phobia and selective mutism”, to being socially awkward, with difficulties talking to friends but academically gifted. Ms D observed[61]:

   X presented as extremely anxious, withdrawn and uncomfortable. She avoided eye contact…would shrug her shoulders or nod/shake her head in response to any questions…. She did not speak a word during the interview.

   When asked to write down 3 wishes for the Judge, X hesitated but eventually wrote, “I want to live with my daddy, and I want this all to be over.”  However, despite the Father’s allegations about X’s fear of the Mother and resistance to spending time with her, X was observed to be very comfortable playing with her Mother and showed no sign of any fear of her. Ms D reported that she appeared comfortable with the Father, although he asked her a lot of questions which she tried to avoid answering. Ms D believed his “constant questioning could be adding more pressure to X causing an increase in her anxiety.”  

   [61] Exhibit 9

4. X was 10 years of age at the time of Dr B’s assessment in February 2016.  He described her as “a very complex child.”[62] X’s “lack of social confidence was immediately apparent” at the assessment.[63] She could not go into a shop to buy a drink, she could not speak at school without great prompting. Dr B found it unusually challenging to engage X in conversation. Her responses profile was strongly suggestive of an anxiety disorder.[64] Dr B drew the Court’s attention to X’s family drawing at interview.  She drew herself very close to both parents, but “incredibly separate from each other”, and of concern and significance was the fact that she drew herself twice, “rather than try and articulate or demonstrate an alignment of herself with one parent versus the other.”  This means she does not want to have to express herself.  Dr B says X is absorbing the stress, internalising her feelings and behaviours. Dr B expressed significant concern about X’s level of anxiety, being placed in the position of having had to negotiate an equal time arrangement between hostile and uncooperative households over many years. In her drawing, a car blocked the road between the two households. Dr B says that there is no homogeneity between the two households and “they are completely stark.”[65] In her drawing, X wanted the two sides (her with Mother and Mr G) and her with the Father, to match exactly.  Dr B says that, “It’s certainly a child under stress.”[66]  She even changed the pencils she was using to make the colours of the hair the same. The impact of the lack of cooperation between her parents is seen in her psychological profile, in “her absence of resilience to be able to meet and confront the challenges of the world.” He says “she is not coping” and these are the years where she is building the “cornerstones of how she will cope with the world.” Dr B says that she has, “a weak foundation.”[67] As she gets older, her level of anxiety becomes more concerning because “it’s becoming a more consolidated set of behaviours”.[68]

   [62] At page 54 of 15 June 2016 transcript of proceedings

   [63] At paragraph 77 of Exhibit 1

   [64] At paragraph 79 of Exhibit 1

   [65] At page 30 of 15 June 2016 transcript of proceedings

   [66] At page 68 of 15 June 2016 transcript of proceedings

   [67] At page 7 of 15 June 2016 transcript of proceedings

   [68] At page 14 of 15 June 2016 transcript of proceedings

5. The Father engaged X in counselling with Ms B from October 2015. Ms B apparently told the Father in May 2016 that X no longer needed to see her. Her confidence had improved and she was communicating more freely.  At hearing, Dr B was concerned that X was not still engaged in counselling.  He would like to have known whether there have been any real changes in X’s life since the assessment, whether she was progressing in the real world.  He recommended that both parties and the school give feedback about X’s progress ‘in the real world’ to her counsellor.   

6. X is in Year 5 at (omitted) School where she was enrolled in September 2012, soon after the parties’ separation.  She had been attending the (omitted) School at (omitted) where the parties agree she struggled due to not having the language and due to her introverted personality. The parties agree she was well behind when she moved to (omitted) School.  X now has (hobby omitted) lessons on Mondays afternoons, (hobby omitted) on Tuesdays before school, (hobby omitted) on Wednesdays before school, (hobby omitted) on Thursdays after school. She has maths/English tutoring on alternate Tuesday afternoons when in her Mother’s care. Both parties agree that X enjoys going to school, has made friends and is progressing academically. 

7. The Mother observes X to be happy and stable in her household, sharing games and activities with the Mother and Mr G, playing with her pet cat “(omitted) the rascal” and caring for hers and the family’s goldfish. The Father deposes to X’s work improving in 2016 as well as her ability to engage in the classroom.  

8. The evidence from the school suggests that X is achieving consistently academically, despite her quiet demeanour and her need to be encouraged to engage more openly in the classroom.  

9. X has (nationality omitted) heritage. As a result of consent orders made at the end of the hearing, X will have the opportunity to travel with her Mother to (country omitted). There she will spend time with her grandparents and the Mother’s extended family.  I am satisfied the Mother will promote X’s exposure to and connection with the (nationality omitted) culture into the future, and that this will benefit X.

10. I give significant weight to my findings here.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. The significant issue here concerns the parties’ poor alliance and conflictual relationship and its impact over many years on X.

2. The Mother deposes to the difficulties in the parties’ communication since separation.  She describes the Father as, “frequently abusive and argumentative with me and seeks to impose his will on me.”  She says he controlled everything during the marriage choosing “everything we did and everywhere we would go.”[69] She is intimidated by the Father and says they have been unable to make joint decisions in relation to X’s welfare. 

   [69] At paragraph 48 of Exhibit 1

3. In December 2014, at the first family report interviews, Family Consultant Ms R noted[70] “each parent recognises that there are difficulties in their parenting relationship and in their ability to effectively communicate and consult with one another.”  The Mother raised concerns with Ms R at that assessment as to whether any positive change in how the Father talks to her is genuine and sustainable and was worried it may not be. Ms R said that both parents seemed to appreciate that X will, “fare better if they find appropriate ways to exchange and share information about her with one another and to improve their parental alliance.” Ms R said[71]:

   Because X loves both of her parents, it would likely be upsetting and stressful for her trying to reconcile why the two people who mean most to her are unkind and/or critical of each other or if she were to be exposed to the two people she trusts to make her life safe, continually argue and fight (with one another).

   [70] At paragraph 12 of Exhibit 7

   [71] At paragraph 26 of Exhibit 7

4. Ms R said that the parties needed to persist in improving their communication and level of cooperation to “ensure the strain on X is minimised as she moves between two households.”[72]

   [72] At paragraph 27 of Exhibit 7

5. In October 2015, the parties described their relationship to Family Consultant Ms D as characterised by “poor communication, conflict and lack of trust” with periods of reasonable communication and cooperation. Ms D said that X had “been in the middle of parental conflict” and held concerns about X’s emotional health.[73] 

   [73] Exhibit 9

6. In February 2016, Dr B gives his opinion of the parties’ relationship and the consequences for X.[74] As already noted, Dr B assessed the Mother as “submissively dependent, self-effacing and non-competitive” and says she is therefore likely to be conciliatory, placating, deferential and self-sacrificing.[75] At the other extreme, the Father has an excessive sense of self and need for admiration. In Dr B’s view, you could not put two worse personalities together.  In his report he says[76]:

   It is readily evident that the current nature of the relationship  between the parents is not constructive to the future development and well-being of this child. A child’s exposure and involvement in parental conflict has been identified as the single best predictor of long-term negative mental health outcomes for a child following divorce.… It should be a particularly humbling moment for both parents to consider that the first wish X expressed to [him], albeit by a virtually  ‘silent’ child was ‘I wish Mum and dad would just talk to each other nicely.’…the lack of communication between the two parties has also meant that consistency of parenting, routines, structure and discipline remains starkly different across the two residences. 

   [74] At paragraph 92 of Exhibit 1

   [75] At paragraphs 55 and 56 of Exhibit 1

   [76] At paragraph 92 of Exhibit 1

7. When discussing the prospects of working better together, the Mother told Dr B, “he hates me, hates me, hates me, he just won’t forgive me for leaving.”[77] Mr G told Dr B that changeovers between the parents are characterised by silence.[78] The Mother asks that the Father change the way he speaks to her. While she says communication has improved in the last 2 months, she is not yet prepared to be in the same room with the Father “where he can impose his opinion on me.”  She is willing to participate in courses, but believes that the Father has the greater need to change.  

   [77] At paragraph 49 of Exhibit 1

   [78] At paragraph 64 of Exhibit 1

8. Dr B was extremely concerned about the Father’s failure to understand the impact of the abrupt changes he had instigated in X’s life.  Dr B highlighted the email exchange between the parties on 30 September 2015 when an order had been made for X’s return and she had not been returned. The Mother was clearly desperate to see X and the Father was “haughty, arrogant, condescending”[79], saying, “yes, it will be half an hour and I will supervise it.”[80] Dr B says this means, “I know what’s best.”   The Father needs his “rightness” challenged and to reflect deeply on his own conduct. Dr B was deeply concerned by the Father using X as the decision maker when he asked X whether she had told [the Family Consultant] what she wanted to say to the Judge.   

   [79] At page 18 of 15 June 2016 transcript of proceedings

   [80] Exhibit 3 and at page 18 of 15 June 2016 transcript of proceedings

9. The Father claims to have gained insight since reading Dr B’s report. He has attended a Triple P parenting course and started a Parenting After Separation course.  He says he now understands that communication between the two households is important for X.  He has tried to implement Dr B’s advice and believes the parties are already working together more cooperatively. He has realised his past approach has not been in X’s best interests.  He has learned to better manage X’s emotions. He now understands the need to promote X’s independence.  He says, “We now share X’s life. I try to make sure that X feels that both Ms Nye and I are equally part of her life.”[81] He refers to two events involving X at which he and the Mother have spoken to each other civilly in X’s presence. He is using email to communicate with the Mother and they have communicated by SMS and phone.  He is passing on information about school events.  He says X presents no issues now and is happy to go to her Mother’s each week.  He also observes her to be more comfortable discussing life in the Mother’s home. The Father says[82]:

   I admit the anger and animosity has been destructive in our relationship.  I am confident both Ms Nye and I will be able to build on the good work we have been able to achieve in the last 8 months in order to create a solid co-parent relationship. 

   [81] At paragraph 221 of Father’s affidavit sworn on 12 June 2016

   [82] At paragraph 225 of Father’s affidavit sworn on 12 June 2016

10. Ms R gave clear advice to the parties in 2014 that they must work better together for X’s sake. Both parties made a commitment to improve their level of cooperation. The Father was optimistic about positive change occurring.  However, instead of improvement, there was significant deterioration, largely caused by the Father’s actions in September/October 2015. I find the Mother’s doubt now about whether the Father is genuinely committed to change his attitude towards her, reasonable.  I share Dr B’s caution as to whether the Father now genuinely understands the impact of his behaviours on X. Dr B could not say whether the Father’s change of attitude was a genuine change or simply done to impress.

11. I am not persuaded the Father understands the seriousness of his failure to comply with Court orders. In his trial affidavit, he does not acknowledge errors of judgment on his part without also attributing fault to the Mother. For example, he admits to shutting down communication with the Mother when she shut down communication with him; he says he was co-sleeping with X when X was co-sleeping with the Mother.  As far as he is concerned, “I am doing my part in being a good parent”, but the Mother is not.  I find communications to the Mother in which his tone is controlling. In January 2016, the Father sent the Mother an email advising that X has been begging to do (hobby omitted). The Father tells the Mother the available days, the cost, the time.  He does not ask for her opinion as to whether (hobby omitted) is a good idea, nor does he give her any option to give her opinion. I find the tone of the email demanding of the Mother. It is a ‘telling’ not a ‘consulting.’

12. The Mother has complied with Court orders. The Father has not.  Dr B says it is consistent with his narcissistic personality traits that the Father did not return X in accordance with the Court’s orders and the Court was required to make 3 separate orders for X to be returned before the Father complied. The Father then questioned the accuracy of the orders made the Judge on 21 October 2015when he wrote to the Mother after that order was made.  

13. I accept Dr B’s opinion that both parties need therapy and training to improve their communication and co-parenting style. Presently they exchange information but do not necessarily consult one another. The Mother needs to learn how to become more assertive and demonstrate more initiative.  The Father needs to become more reflective of himself and his actions.

14. I give substantial weight to my findings under this factor.

Any family violence involving the child or a member of the child’s family.

1. I have nothing to add here. 

If a family violence order applies, or has applied, to the child or a member of the child’s family any relevant inferences that can be drawn from the order, taking into account the nature of the order

1. There are no family violence orders in place.

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. As noted, I am not satisfied the Father has markedly changed his manner of communication with the Mother, or his attitude to her role in X’s life, although I accept there was some improvement leading up to the hearing. Dr B questioned the Father’s commitment to change.  He noted the Father’s expressed uncertainty about the future, saying he could not predict what might happen in 6-12 months’ time. Mr G said to Dr B that he feels the Father wants to cause the Mother pain, citing emails and texts saying he, “was going to take her through the courts for the rest of her life.”[83] I am not confident that the Father will not find cause to withhold X from the Mother again because I am not satisfied that he understands the damage that the disruption to X’s relationship with the Mother caused her last year.  I find that whatever orders the Court makes, there is a risk of further litigation.

   [83] At paragraph 72 of Exhibit 1

Any other fact or circumstance that the court thinks is relevant.

1. The parties have not yet finalised their property dispute which has complicated their co-parenting relationship. I accept the Mother’s evidence that the Father was unwilling to sign a passport application for X until those proceedings were resolved, despite orders permitting X to travel overseas with the Mother from the age of 10 years (September 2015).  It is in X’s best interests for the parties to resolve their property issues as soon as possible.

PARENTAL RESPONSIBILITY

1. The Mother seeks an order for sole parental responsibility.  The Father seeks an order for equal shared parental responsibility.  The final consent orders of March 2015 provide for the parties to have equal shared parental responsibility. 

1. Section 65DAC applies whenever a parenting order provides for shared parental responsibility and requires the parties to consult the other person and to make a genuine effort to come to a joint decision about any major long term decisions concerning the children.

2. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or

   b)Family violence.

3. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility[84]. 

   [84] Section 61DA(4) Family Law Act 1975

4. I am satisfied that the presumption applies in this case. At the time of the expert assessment, neither party questioned the continuation of the order for equal shared parental responsibility.  Dr B strongly recommended against either party having sole parental responsibility because “it effectively de-parents the other parent.”[85] The Mother said to Dr B that she was willing to work with the Father but “there is so much anger and hatred, how am I to work with that?” The Father says communication is now improving and the Mother agrees there has been some recent improvement.  I am not satisfied X will benefit from either party being excluded from decision-making.  Both are required to complete parenting courses and both will engage in therapy which is likely to help them to learn to consult more effectively. I have decided to make an order for equal shared parental responsibility.  While Dr B says that it may be necessary for allocation of different areas of parental responsibility to each party, I find such orders may undermine efforts to improve communication. 

   [85] At page 46 of 15 June 2016 transcript of proceedings

5. When an order is made for equal shared parental responsibility, section 65DAA(1) requires the Court to consider whether making orders that the child should spend equal time, or if not equal time, substantial and significant time with each party would be in the best interests of the child and whether such an arrangement is reasonably practicable[86], having regard to the factors set out in section 65DAA(5). These factors include the distance between the parties’ homes, the parties’ capacity to implement such an arrangement, the parties’ capacity to communicate and resolve any differences between them, the impact such an arrangement would have on the child and any other matter the Court considers relevant. The requirement of reasonable practicality “requires a practical assessment of whether equal time parenting [or substantial and significant time parenting] is feasible”.[87]  On each party’s proposal, X will spend at least substantial and significant time with each party.  I have addressed the proposal for equal time in the Discussion to follow.

   [86] Section 65DAA Family Law Act 1975. See also MRR v GR [2010] HCA 4

   [87] MRR v GR [2010] HCA 4

Discussion and Determination

1. X’s presentation has caused significant concern to three professionals who have long experience and expertise in assessing children in family law matters.  Each found engaging with X unusually challenging. There was no improvement in her presentation over the 14 month period from the first assessment. Dr B believes X suffers from a long standing anxiety disorder, at least partly as a result of being required to negotiate a pathway between highly conflictual, uncooperative and starkly different households. X’s lack of resilience and inability to articulate shows clearly the negative impact of the parties’ ongoing conflict on her. I share Dr B’s opinion that X is not coping and has a very weak foundation on which to build resilience. 

2. I agree with Dr B that the current week about arrangement is not working for X. I agree with him that unless the parties’ communication and level of cooperation markedly improves, X continues to be a child at risk and a change in X’s parenting arrangements is necessary.

3. Until Dr B’s report was released in February 2016, each party sought a continuation of the equal time arrangement on a week about basis.  After its release, the Mother sought majority care of X.  In response, despite the content of Dr B’s report, the Father sought majority care of X if the equal time arrangement was to be changed. I find the Father’s proposal for majority time a reaction to the Mother’s proposal, rather than the result of a careful assessment of X’s needs.  I have found that the Father lacks empathy for X, and has shown poor insight into her needs.  I am not satisfied the Father understands or is prepared to accept how his actions have contributed, not assisted, X’s anxiety state.  What the Father has considered best for X, has actually been damaging.   

4. Dr B assessed the Mother as the more child focussed parent.  She has the ability to separate her emotional needs from those of X and a capacity to empathise with X.  She can better promote X’s individuation.  The Father, on the other hand, sees himself as an extension of X and has been unable to promote her independence. He needs personal therapy to learn emotional parenting, to separate his own needs from X’s and to learn to reflect on situations from X’s point of view. It is critical to X’s future wellbeing that the Father fully engages in this learning process.

5. Given my findings about the Mother’s parenting skills, I agree with Dr B that any change to the current arrangement should result in X’s increased time with the Mother. 

6. While there was evidence of some improvement in the parties’ communication before the hearing, they have a long way to go.  The parties will need ongoing professional support to learn to consult each other in a respectful and constructive manner for X’s benefit.  An order has already been made for this intervention to commence.  

7. I accept Dr B’s opinion that there are risks for X if the Court changes the arrangement from week and week about. These risks include (a) the Father reacting badly to ‘losing’ and the Mother ‘winning’ and emotionally involving X in his ‘loss’ which may result in her blaming herself for the change; or (b) the Father not supporting X to adjust to the change particularly as she is likely to be resistant to change, making X’s situation even more difficult or (c) the uncertainty inherent in any change.  I have regard to the Independent Children’s Lawyer’s support for the equal time arrangement to continue. 

8. However, the events resulting in these parenting proceedings being re-litigated clearly demonstrate the deficiencies in the Father’s parenting capacity and the emotional impact on X’s wellbeing. The seriousness of my findings on those events cannot be overstated. Dr B’s assessment of X’s level of anxiety under the present arrangements cannot be minimised.  Further, how much improvement will be achieved in the parties’ ability to cooperatively parent is still difficult to predict.  

9. The Mother is the more child focussed parent; she is more attuned to X’s needs. She puts X’s needs ahead of her own. More time with the Mother is likely to provide X with a greater sense of stability and a greater consistency of parenting style.  I agree with Dr B that more time with X in her care is likely to further strengthen the Mother’s parenting role, which has been seriously undermined by the Father in the past. 

10. If living predominantly with the Mother, Dr B recommends 5 nights a fortnight with the Father, being a block of 4 nights each alternate weekend and one night in the other week during her primary years, moving to a block of 5 nights on alternate weekends when she starts secondary school. However, in cross examination, Dr B said whether the split was 9/5 or 10/4 or 8/6 would not make much difference. Given my findings about the Father’s conduct, his parenting capacity and his attitude to the Mother, I have given careful consideration to the Mother’s proposal to reduce X’s time with the Father to 3-4 nights a fortnight.  However, I have decided such a significant change carries too great a risk for X’s emotional health, given the extent of her anxiety, her resistance to change and the likelihood of her taking the ‘blame’.

11. I have decided X will spend 6 nights a fortnight with her Father and 8 nights a fortnight with her Mother.  I am satisfied X will manage such a minor change in time, without distress or guilt. I am satisfied the Father will also adjust to the change and am hopeful he will be motivated to improve his parenting skills and support X to make the adjustment.  I am satisfied X spending more time with the Mother will give the Mother a better chance to her increase her involvement in X’s school life and to develop her ability to initiate and assert herself more which will help X.

12. In terms of how to arrange the 6/8 arrangement, I have regard to the Mother’s evidence that X takes a day or two to adjust to the Mother’s household on her return from the Father.  I have therefore decided that it is better for X to continue to spend time with each parent in one block, an arrangement she is used to.  Given X is accustomed to enjoying a special family dinner with the Father’s family on alternate Monday nights, I have decided to include a Monday night in the Father’s time.  This means there will be a changeover on a Sunday afternoon each alternate week, when it is hoped that X will have the opportunity to experience her parents’ cooperating in the changeover. 

13. The Father has said he is willing to undertake individual therapy to learn ‘emotional parenting’ as recommended by Dr B.  I will make that order.  The Independent Children’s Lawyer will provide a copy of Dr B’ report and a copy of these Orders and Reasons to the Father’s therapist. The Mother already consults a psychologist.  She agrees to continue this arrangement with Ms J. The Independent Children’s Lawyer will provide the same material to Ms J.  

14. Dr B recommended that X’s therapist be updated on X’s progress, in terms of her ability to interact openly in the classroom and in ‘real life’ situations.   I have therefore made an order for each party to consult Ms B, or an alternative child psychologist approved by the Independent Children’s Lawyer, to enable them both to provide feedback on X’s progress.  If X’s therapist recommends that X have further therapy, each party will facilitate the arrangements.

15. To ensure compliance with the orders I have made, I have made an order for the Independent Children’s Lawyer’s appointment to be extended for a further 6 months. 

16. I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of X.  

I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Date: 23 September 2016