Osmond and Brand
[2015] FCCA 24
•22 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OSMOND & BRAND | [2015] FCCA 24 |
| Catchwords: FAMILY LAW – Contested parenting application – mother engages in obstructive and destructive behaviour towards father – including falsely attempting to suggest he has acted inappropriately sexually with the child – child to live with the father and have limited time with the mother. |
| Legislation: Family Law Act 1975, Part VII, ss.60 CC, 65DAA |
| Mazorski & Albright [2007] FamCA 520 MRR v GR [2010] HCA 4 |
| Applicant: | MR OSMOND |
| Respondent: | MS BRAND |
| File Number: | TVC 1294 of 2012 |
| Judgment of: | Judge Willis |
| Hearing dates: | 15 – 17 October 2014 |
| Date of Last Submission: | 17 October 2014 |
| Delivered at: | Cairns |
| Delivered on: | 22 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Betts |
| Solicitors for the Applicant: | Dillon Bowers Lawyers |
| Counsel for the Respondent: | Mr Hibble |
| Solicitors for the Respondent: | GB Legal |
ORDERS
The father have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child, X born (omitted) 2010 (“X”) subject to the communication and notification of such decisions to the mother, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with other parent.
Notwithstanding Order 1 hereof:
(a)The father shall be responsible for the daily care, welfare and development of X whilst he is living with or spending time with him; and the mother be responsible for the daily care, welfare and development of X whilst he is living with or spending time with her.
The child X live with the father.
X will spend time with the mother at all times as agreed in writing between the parties and specifically as follows and CONDITIONAL UPON the terms of Order 5 herein:
(a)Each alternate weekend from after school or day care Friday until before school or day care the following Monday, or Tuesday if the Monday is a public holiday or pupil free day; and
(b)Each alternate Thursday being the Thursday that follows the mother’s weekend with X from after day care or school on Thursday until before school or day care the following day.
Condition
The child’s time spent with the mother as set out in these Orders is conditional upon her forthwith engaging in counselling with a psychologist to address her hostility towards the father and her obstructionist attitude towards him playing a role in X’s life. The mother is granted leave to provide a copy of any Family Report prepared in this matter and a copy of these reasons to assist with this process. The mother is to file and serve an Affidavit within six months of the date of this Order annexing evidence from a psychologist as to her compliance with this Order.
Handovers
Handovers are to occur to and from the child’s school/day care on school/day care days. The non-collecting parent is not to attend school/day care at handover time. On non-school/day care days, handovers are to occur at a location nominated by the father, from time to time.
Holiday time
Each parent shall be entitled to spend block holiday time with X as follows:
Until X commences Prep school:
(a)Each parent shall be entitled to spend one (1) week’s holiday with X on two (2) separate occasions prior to X commencing prep school, upon giving the other parent at least thirty (30) days notice in writing. Such block time is not to occur over the Christmas week which includes Christmas Eve, Christmas Day and Boxing Day.
Upon X commencing Prep school:
(b)Unless otherwise agreed between the parties, X will spend half the Queensland gazetted school holidays, including the Easter holidays, with each parent as follows:
(c)with the father for the first half in odd numbered years and the second half in even numbered years;
(d)with the mother for the first half in even numbered years and the second half in odd numbered years.
Time for the purpose of Christmas school holidays will commence at 5.00 pm on the last day of school and will conclude on Friday prior to the first day of school with the halfway point to be calculated between those dates.
Christmas Day
In the event that the parent who otherwise has the child in their care for the first half of the holiday periods pursuant to the terms of these Orders (which includes Christmas Eve, Christmas Day and Boxing Day (“the Christmas days”), has not travelled away from (omitted) for the Christmas holidays, the parent with whom the child is living on the Christmas day will retain the child until 2:00pm on Christmas Day and thereafter the child will spend time with the other parent from 2:00pm onwards until 2:00pm on Boxing Day, after which time the child will be returned to the other parent to continue on with their holiday period. The Court notes that this provision will only apply when the party who would otherwise have the child over the Christmas days elects not to travel away.
Special days
X will spend time with each of the parties on special days as follows and NOTING clause g herein:
Mother’s Day and Father’s Day
(a)In the event that Mother’s Day falls on a day when X is living with the father pursuant to these Orders, then the mother shall spend time with X from 9:00am to 5:00pm Mother’s Day.
(b)In the event that Father’s Day falls on a day when X is living with the mother pursuant to these Orders, then the father shall spend time with X from 9:00am to 5:00pm Father’s Day. Alternatively, the parties are able to swap weekends by agreement so that X is with the mother on Mother’s Day and the father on Father’s Day.
Birthdays
(c)In the event that X’s birthday falls on a day when X is otherwise spending time with the father pursuant to these Orders, then the mother shall spend time with X at times as to be agreed between the parties and failing agreement from 3:00pm to 6:30pm on a school day or between 12 noon and 5:00pm on a non-school day, subject to clause (g) herein.
(d)In the event that X’s birthday falls on a day when X is otherwise spending time with the mother pursuant to these Orders, then the father shall spend time with X at times to be agreed between the parties and failing agreement from 3:00pm to 6:30pm on a school day or between 12 noon and 5:00pm on a non-school day subject to clause (g) herein.
(e)In the event that the mother’s birthday falls on a day when X is living with the father pursuant to these Orders, then the mother shall spend time with X at times to be agreed for a period of no less than four (4) hours and failing agreement between 3:00pm and 7:00pm subject to clause (g) herein.
(f)In the event that the father’s birthday falls on a day when X is living with the mother pursuant to these Orders, then the father shall spend time with X at times to be agreed for a period of no less than four (4) hours and failing agreement between 3:00pm and 7:00pm subject to clause g herein.
(g)It is not intended that school holidays or any other block time which X is to spend with a parent pursuant to the terms of these orders, are to be interrupted by order 10 (a-f) herein. In other words, the child will only spend time with each of the parents on special days herein in the event that the child is not otherwise having block time with either party pursuant to these orders.
Each of the parents will facilitate X having reasonable telephone/ Skype/Facetime communication with the other party and in the event of disagreement, the father is to facilitate two telephone/ Skype/Facetime communications with the mother each week at times nominated by him in advance from time to time and the mother is to facilitate one phone call to the father each weekend that X spends with the mother at a time nominated by her in advance from time to time.
When X is spending holidays with either parent, that parent is to facilitate Skype/Facetime/telephone contact at all times as agreed and no less than two occasions each holiday week, and Order 11 herein is suspended during the holiday periods.
The parties shall communicate general parenting information by email and more urgent messages via text message or telephone call.
Each parent shall keep the other informed of their residential address, telephone contact number/s and email address and shall advise the other of any change within twenty four (24) hours of any change occurring.
In the event of any parenting dispute the parties are to attend Family Dispute Resolution in an endeavour to resolve the dispute NOTING however that the father has sole parental responsibility in relation to long term issues and such issues are not issues for debate with the mother.
Each parent will contact the other parent by telephone forthwith in the event the child requires hospitalisation or is involved in a serious medical incident.
The parties are entitled to travel interstate with X during their time set out in these orders. In the event that they are travelling interstate, the travelling parent is to provide the other parent with at least 72 hours notice, save and except for genuinely urgent travel, at which time the travelling parent will advise the other parent at the earliest opportunity of the destination within Australia to which they intend to travel with X.
All outstanding Applications be removed from the pending cases list.
Costs
In the event of a costs application, the Applicant is to file and serve written submissions, annexing a draft order and costs schedule, by no later than 2 March 2015.
The Respondent is to file and serve her response material within 21 days of being served with the Applicant’s material.
The parties are to each indicate if they are content for matters to proceed on the papers or if they request the matter be listed for oral submissions.
NOTATION:
A.The Court notes that the child is being returned to the father’s care on Friday afternoon, 23 January 2015 as per the current arrangement. The mother’s first alternate weekend with the child is to commence on Friday 6 February 2015.
IT IS NOTED that publication of this judgment under the pseudonym Osmond & Brand is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 1294 of 2012
| MR OSMOND |
Applicant
And
| MS BRAND |
Respondent
REASONS FOR JUDGMENT
This application involves the father, Mr Osmond seeking orders that X born (omitted) 2010 (“the child”) of his relationship with Ms Brand, the mother, live primarily with him and spend alternate weekends with the mother. The father also seeks an order for sole parental responsibility.
The mother, who changed her position on the morning of trial, sought an order for X to live on a week about basis and an order for equal shared parental responsibility. Prior to the morning of trial, the mother sought orders that X continue to live primarily with her and spend limited and slowly increasing time with the father over the coming years.
Brief history
The parties commenced a relationship in 2009. The mother was born on (omitted) 1971 and the father was born on (omitted) 1983. At the time the parties met, the mother had children from a previous relationship and had ended a long term marriage. The father was in the (employer omitted) and has no other children. At the time of trial, the father has re-partnered with Ms S and been living in a defacto relationship since approximately January 2013. The mother has not re-partnered and works as a (occupation omitted).
The father’s solicitor prepared a very comprehensive Case Outline and Chronology in this matter, and I adopt the contents of that Chronology. It is fair to say that since X was born the father has had significant difficulty in having the opportunity to develop a meaningful relationship with X. It is also fair to say that the mother has been very controlling in terms of being the sole decision maker as to the amount of time and the basis of that time (including as to whether or not it could be supervised) between X and the father. Whilst X was born on (omitted) 2010, the father was still only being permitted to have supervised time with X, supervised by the mother, when the father filed his Application in November 2012. As can be seen from the Chronology, the father attempted to organise mediation and it took the father seven months after he had first proposed it, six months after the father’s solicitors wrote to the mother proposing mediation, and four months after the father had himself undergone the intake procedures before the mediation finally occurred on 30 July 2012. On 28 November 2012 after the mother had continuously refused to comply with the terms of even their informal agreement proposed by the mother, the father filed an Initiating Application. The effect of his doing so was that the mother ceased to allow time between X and the father. By the first return date of 18 February 2013, the mother had not filed any material and simply sought an adjournment to prepare response material. Judge Coker made Interim Orders on 18 February 2013 and it was only through this process that the father’s time with X recommenced. Significantly, he moved to unsupervised time over objection from the mother. On 21 February 2013, Family Consultant Ms T prepared a comprehensive memorandum noting the mother’s emphasis on “rights, wrongs and rules” during X’s time with the father, which was noted as excessive and likely to negatively impact on X.
Ms T also noted that the mother viewed the possibility of X’s time with the father increasing as having a negative impact on X and she stressed a fear it would reduce X’s sense of self and confidence.
Unfortunately, despite suggestions of Judge Coker to attend upon a professionally qualified counsellor to deal with her own anxieties and issues, by the time of trial the mother had never engaged in such counselling.
Ultimately, the mother’s inability to appreciate that X is entitled to have a relationship with his father as well as his mother has resulted in the mother engaging in obstructive conduct and conduct which has been aimed at undermining the father’s role in X’s life, as will be seen in these reasons.
Whilst the mother arrived at Court on the morning of trial ready to drastically alter her position as set out in her trial material, the father had no confidence that the mother would follow through with any of her new proposals and accordingly, the trial proceeded.
The witnesses
The mother
The mother gave evidence and was cross-examined for the best part of two days. For most of the time she showed little emotion or warmth and she gave answers that were in the language that the mother uses which seems based in the work she does as a (occupation omitted). It was difficult to accept that the concerns allegedly held by her for her child were genuinely held. It was clear though that the mother had formulated beliefs about risks to the child of which most, if not all, were not founded in reality.
When talking about her communication with the father about their child, the mother used business terminology such as “we talked about various options and what those options would look like”, and “I spoke to my professional colleagues about what would work in terms of arrangements” and “we discussed what sort of support the child required.” At no time did the mother seem to be child focused, rather, she seemed to me to be focused on controlling all and every situation related to the child. The mother seems to have developed a strategy to deal with the father, and that included ignoring his text messages, ignoring and failing to return his missed calls, ignoring his requests for times or dates relating to his time with the child, and making arrangements with the father and then ignoring her prior agreements and generally treating the father’s attempts at being involved in the child’s life with utter contempt.
The mother explained that when she fell pregnant, she had not long left an unhappy marriage, her husband having become addicted to drugs. At the time they had two children and had been trying for a third. When the mother did not fall pregnant with the proposed third child, she and her husband went to a GP. The mother says that the GP told her she would not fall pregnant again due to a gynaecological problem. The GP said that the mother and her then husband should just accept that they had two children and that would be it.
The mother’s marriage ended in 2009/2010 and the mother says that Orders were made for her then husband to address his drug issue and until he did, there would be no contact between Y and Z (their children) and the father. Consequently the children now aged 21 and 17 years have not seen their father since about 2009.
It seems therefore that when the mother and father in this matter met, the mother was quite certain she would not fall pregnant and was content to have unprotected sex. This was not the case however and after only being in a relationship with the father, then aged 27 and in (employer omitted), for a few months, the mother ten years older at age 37, conceived a child with the father.
The mother was opposed to having a termination and it seems the mother was quite willing and prepared to be a single parent which she expressed, when the father expressed to her his anxieties or reservations about proceeding with the pregnancy. The mother sets out in her material at length her disappointments about the father, and his unwillingness to be involved. In her oral evidence she said she was not disappointed that the father did not want to be involved (when it was suggested to her that it might not be unusual for a 27 year old man to react adversely to finding out that a short relationship resulted in a pregnancy) rather, the mother said she was angry that the father was not the person he said he was. I think the mother makes reference to her believing that the father was in the (employer omitted) as well, though the father says that this impression she gained was not due to anything he said or did.
It is clear from the mother’s own conduct that even when the father came to grips with the situation and the birth and decided he ought to be involved, that the mother has never forgiven him for expressing any reservations and for not being there with her every step of the way.
The mother was asked if she was ever going to forgive the father for what she perceived as him not being the person she thought he was. Whilst the mother said she had recently forgiven him, regretfully, there was no evidence of any significant shift in her attitude towards the father that would validate this alleged change in attitude.
The mother’s conduct towards the father since he tried to become involved in X’s life bears testimony to my conclusion that her behaviour has been appalling. The mother, when questioned about a myriad of incidents and events as set out in the father’s affidavit, and referred to in the mother’s Affidavit, gave the answer over and over that she did not know why she had done certain things, or that she now realizes that her actions were the wrong thing to do. I do not accept that she did not know why she did certain things. I am satisfied that the mother’s conduct has been calculated.
The mother’s affidavit is 193 paragraphs. In order to gain an understanding of how many issues the mother has created between herself and the father about the parenting of X, and how unreasonable and at times farcical her “concerns” have been, I have set out a schedule of some of those events.
| Paragraph | Allegation |
| 6 | X displaying negative behaviours to his sister Z. When Z asks X to stop his response to her is “because my Daddy told me to”. – the father is undermining X’s relationship with his sister. |
| 13 | Conflict as to whether the relationship was exclusive of not. |
| 14/15 | Questioned his service record with the (employer omitted). Father admitted that he lied about this. “I was advised much later that his actions warranted severe disciplinary action and that Mr Osmond would have been well aware of that, I chose not to pursue the matter, out of consideration for X.” |
| 16 | Father did not accept pregnancy. Did not attend ante natal or ultra sound appointments. Father denied any intent to have any role as a parent. |
| 17 | Father demanded the Mother have an abortion. |
| 18 | Father hired prostitutes in 2011. |
| 19 | Mother has a serious car accident at 26 weeks. Father was uninterested in the situation. Father did not provide the mother with any emotional support at this time. |
| 20 | Father “specifically” volunteered for an overseas training in (country omitted) at the time of the birth. He falsely told me it was compulsory. There was much conflict at this time and the Father had made several abusive and aggressive phone calls from (country omitted). |
| 21 | Weeks before X’s birth – concerned for the father’s wellbeing and state of mind and Mother contacted Father’s brother. Father’s brother (Mr S) was abusive, mistrusting and scathing in his criticism of me. Father’s brother was stood down from the (employer omitted) pending an internal investigation into corruption and his directly related relatives may have exacerbated this. |
| 23 | Father did not send any gifts, cars or presents whatsoever to acknowledge X’s birth. He was angry at the inclusion of Osmond as his middle name and he always insisted he wanted no connection with the baby. |
| 24 | Father returned to Australia when X was 10 weeks old on (omitted) 2010. Father lived with the mother for 7-8 weeks. X was only left unsupervised for one occasion with the father. This period was for no more than 1 hour. |
| 25 | Father has not told his parents about the pregnancy or even that they had a grandson until X was nearly 3 months old. |
| 26 | Paternal grandmother visited and questioned my integrity, morals and intention. |
| 27 | Travelled to (omitted) to visit the Father’s family – repeatedly requested a copy of a photograph of 4 generations. Mother never provided with a copy. |
| 28 | Father never offered to make any financial contribution or child support during his time staying in my household. |
| 29 | I offered the father 1-2 hours daily after father finished work. His attendance was inconsistent and erratic. Fail to turn up without any notice and could not be contacted. |
| 30 | I arranged mediation but sessions were abruptly terminated by Mr Osmond when he lost his temper. |
| 34 | Visits by the father were dominated by conflict. |
| 35 | Father was absent from the child for almost 40% of the year. |
| 36 | Father never provided mother with official documentation confirming his absences for work purposes despite my requests. |
| 38/39 | There were 89 instances available for the father to spend time with the child. The Father only attended ON TIME for 22 of the visits – 12 of the visits were impacted by conflict. |
| 40 | 23 occasions the father was late. |
| 41 | 11 occasions the father was under the influence of alcohol or visibly sick from the effects of alcohol. Without regards to SIDS the father would refuse to change his shirt when he smelt offensive of body odour, alcohol or cigarettes. |
| 42 | Father fell asleep on 1 occasion whilst supervising X alone. Mother refused father to drive with child as too erratic. He became aggressive. |
| 43 | Father failed to show up at all on 5 occasions. |
| 44 | Father lost licence for 18 months after being arrested and charged for drink driving. |
| 45 | Father’s lack of commitment was distressing and disappointing. Erratic moods. |
| 46 | Grandparents were an hour and a half late for a visit in July 2011. |
| 48 | The Father’s brothers have not visited (omitted) to spend time with X nor did they send cards or gifts for his 1st birthday or Christmas. |
| 57 | The father reluctantly pays minimum child supports. |
| 58 | Father was in child support arrears and prioritised a holiday in (omitted). |
| 59 | Father has used the threat of the legal path since March 2011. |
Having heard the mother under cross-examination on these and other issues, I am satisfied that almost without fail, these incidents have been raised without any logical or valid sensible basis for concern. As can be seen the mother’s style of parenting X includes requests that he not be given tap water ever, he is to be given boiled or bottled water; suggestions that the father teaching X to stand up and urinate led to the child being confused and not knowing he had to sit down when he had a bowel movement; suggestions that when the father’s flight back from (omitted) was cancelled by the airline (which meant that X would be returned the morning after the afternoon he was due home) warranted fears that the father had abducted the child and killed him; and the mother observing X aged 3-ish masturbating leads to the conclusion that the father has either shown him how to do this or taught him how to do this.
The mother is an otherwise intelligent human being. She has raised two other children, and been through the rigours of previous Family Law litigation. She holds a responsible position and I consider she would be very good at her chosen occupation. She seems to have unfortunately confused her (occupation omitted) persona with her personal and mothering role. The mother’s language makes communication with her quite impossible. It is impossible on two fronts, first the actual language that the mother uses is gobbledygook. The meaning of gobbledygook is language characterised by circumlocution and jargon[1]. The mother’s language is so laden with unnecessary words and buzz words and delivered in lengthy interminable sentences, that all meaning is lost. Listening to her language is like listening to white noise. Also, the mother’s reasoning and logic in her communication with the father is in my view deliberately obtuse and she is seen as consistently being obstructionist and difficult.
[1] Susan Butler, Macquarie Australian Encyclopaedic dictionary (The Macquarie Library Pty Ltd, 2006).
A glaring example of this method of communication is seen in a text exchange in 2011 when the father asks a very simple question, “can I pick up X at 10.30.” What follows is an extraordinary exchange which literally took hours, and in which the mother will neither admit nor deny what the pick-up time will be. The mother denied that she was drinking at the time, she denied she was playing mind games. If I accept that she was not playing mind games, the Court is satisfied that there is no possible hope for meaningful communication between the parties. Again, to demonstrate the level of obfuscation involved in by the mother, I have set out only part of the text exchange[2].
[2] Affidavit of the father, filed 10 October 2014, annexure 1.
Father:
2011-04-06
20:19:04
10.30 Saturday?
Mother:
2011-04-07
00:03:39
Ideally we could work this out together, like adults. Despite the visit when you fell asleep, you have spent time here with X twice. It is disappointing that you keep going back to being angry and vindictive about the first mediation session. Clearly we moved on from there and have made steps to go forward. It isn’t helping when you can’t let go of that and realise it’s in the past, just as I’ve had to do in relation to every lie and betrayal by you. Honestly, that last 5 mins tonight felt like another one of your convenient setups driven by your usual hidden agenda, moreso than any kind of genuine attempt to work together for X’s sake. You couldn’t even give straight answers to simple questions. I am v tired of your games and secrets, its all too unhealthy. Again tonight, you said I was “loopy” and “crazy” for no apparent reason other than to try and escalate the situation. You seem determined to wage war against me regardless of what I do. You seem to completely forget the v important job I do everyday on my own, raise and care for X, and you can clearly see he is thriving, healthy, happy and settled.
Father:
2011-04-07
06:20:16
I don’t really care what u say Ms Brand. 10.30 Saturday still on as agreed?
Mother:
2011-04-07
08:30:00
I am only trying to work through this rationally. However, if you have abandoned all sense of basic respect and decency then it seems a pointless exercise. I have asked you repeatedly to manage your own emotional state and not bring conflict, confusion and hostility with you when you spend time with X. It isn’t appropriate for you to keep trying to bully me into submission, yet I see that you aren’t willing to acknowledge that and explore mutual alternatives. I am not sure who is validating your choices these days, but if it’s the same people who adamantly insisted on me terminating throughout my entire pregnancy, then perhaps your actions aren’t such a surprise. Is this about creating a respectful working relationship for X’s sake? Because it doesn’t seem like it.
Father:
2011-04-07
08:55:36
Yes Ms Brand…..Saturday 10.30? That’s all I want to know
Mother:
2011-04-07
09:11:27
Obviously I am trying to avoid a repeat of last night by attempting to establish honest and respectful communication between us. The lies, secrets and games aren’t productive or healthy. Your responses don’t sound like you want to move in that direction. In fact it seems you don’t want to establish clarity, trust or integrity at all and that is unsettling.
Father:
2011-04-07
11:04:03
Ms Brand, say whatever makes you feel better. I just want to know about Saturday. I wish you could just understand that all priorities changed at our first mediation session but you seem to be unaware that you made a decision that was wrong and contradicts your words now. I’m was not asking much of you in the beginning nor am I asking much of you now.
Mother:
2011-04-07
17:00:00
Mr Osmond, the confusion today stems from your statements last night. You said you had no interest in discussions over contact arrangements and that you only wanted that formalised through legal avenues. You were vague and avoidant of my questions about this, finally explaining that you had an “undisclosed” solicitor, from an “undisclosed” firm who at an “undisclosed” time was going to send me an “undisclosed” document that I would just have to sign within 21 days “or else.” Then you went on to inform me that you were also planning to subpoena various people, for “undisclosed” purposes. You have again gone back to the first mediation session and you really need to let that go and recognise that we went through that and obviously moved forward. As far as making a decision that you describe as “wrong,” it is more accurately described as simply one you didn’t like but was made nonetheless in the best interest of X having stability and giving us both some valuable space to focus on the process with the padre and the priorities we established. You have made many decisions in the past 18 mths, very few I have been a part of, most of which have caused pain and hurt and would definitely be classed as “wrong” and rarely with any consideration for anyone other than yourself. My decision was a genuine effort to finally put a stop to that unhealthy pattern continuing. It was made with a view to better long term outcome for everyone. All of this was discussed and worked through but you seem to forget. I want the games, lies and threats to stop. That is more than a reasonable expectation.
Father:
2011-04-07
19:19:08
Ms Brand….Saturday?
Mother:
2011-04-08
00:01:06
What exactly do you expect? The last time you spend time with X you became hostile at the very end for no apparent reason and you couldn’t clarify what you are doing in regards to your intended legal action. You are creating confusion and doubt and I have simply asked you for open honesty communication without the secrets and games. I am moving forward and don’t want to get stuck in this cycle again. It’s unhealthy and distracting and I prefer to give my time and energy to my children.
Mother:
2011-04-08
15:54:36
I gather you aren’t able to give assurances or clarity of your intentions hence no response from you. I realise it is easier to just be angry and blame me, but we both know that it’s wrong. You have often admitted you play games, tell lies and create arguments and hostility to force situations and outcomes to suit you, your behaviour and attitude now reflect these “tactics” . You once said you owed it to X to be the father he deserves, to live in truth with integrity and to honour him by developing and living with moral values and beliefs. I just want to know you will manage your own emotions without directing them at me when you see X and that you are honest, it shouldn’t be this hard.
Father:
2011-04-08
20:35:11
Ms Brand….please. I just want to know about tomorrow.
Mother:
2011-04-08
22:06:56
Me too.
This message continues for a further 32 exchanges over 7 pages of A4 paper. It is too long to be repeated in full in this decision, but has to be read in full to appreciate the lengths that the mother was prepared to go to in her quest to be obstructive.
Whilst poor communication typically involves fault on both sides, on this occasion it can be seen that the mother is 100% at fault in this type of exchange. I am satisfied that the mother was quite determined to make the pick-up issue as complicated as possible and that she has shown contempt towards the father in terms of allowing the child to have a relationship with the father.
In fact, my overall impression of the mother’s conduct is that she was determined to do all acts and things to make the father’s attempts to build a relationship with X so difficult, that the father would walk away. The father did not walk away, and I consider that this is the single biggest issue for the mother to accept. I am satisfied that the mother’s fury with the father centres on his wanting to become involved with X and that he has been determined to do so. Many fathers would have walked away in the face of this resistance. It is to the father’s credit that he had been determined to have the opportunity to have a strong and loving relationship with X and to exercise parental responsibility.
The Report Writer, Mr H, observed this attitude and commented on it in his second report. He noted that the mother has mapped out a plan where she is the sole parent and her family is the most important family for X. The mother has not shown any insight into the child’s right to know and be cared for by both parents. The mother’s world for X consists of herself, her two elder children being X’s half siblings, and her dear family friends all of whom have had unfettered time and access to X, and often at the expense of the father’s time with X. Overwhelmingly, I am satisfied that the mother strongly believes that those people dear to her are to be the only people in X’s world and the father’s involvement represents a serious and unwanted intrusion into X’s life.
This is demonstrated by her continual acts of leaving the father waiting for X, ignoring his requests for time, her decision prior to the commencement of the litigation to just stop taking X to hand overs and time with the father entirely, not even giving the father the courtesy of knowing that she wasn’t coming to handovers, and ignoring his texts sent to her asking where X was. The mother blatantly did this without any sign of regret or insight as to her own contemptuous behaviour. I am sure she would not have treated her “family” or friends with this contempt.
The Report Writer has concluded that given the impossible communication between the parties, that the father ought to have sole parental responsibility. Generally I accept the very insightful report of Mr H. One issue that I disagree with is the view that if the mother has been complying with the orders that have continued to provide for further time with the father, that is a sign of her being prepared to entertain a relationship with the father. Mr H has not heard all of the evidence that the Court has heard nor seen the mother under cross examination. Mr Betts of Counsel submitted that the mother has not progressed the relationship with the father and X, rather, judicial officers through the legal process have done this following objection and resistance at every step by the mother.
The history of this matter gives force to this submission. The mother appeared at the first return date of the father’s application, and although she had been served two months earlier, she had filed no material. This led to a delay in the father’s request for orders. When the mother did file a Response and Affidavit on 22 March 2013, she sought very limited time with the father. This was not progressing the matter in my view, as the father had been having time supervised time by the mother, since a few months after X was born.
The father filed an Application seeking unsupervised time. The mother did not agree. The Court ordered unsupervised time. The father had been through a long period (over six months) of trying to get a section 60I certificate and the mother insisted that he pay for a private mediation. I do not accept that this was to speed up the process. If this were so, the mother would have had her material ready at the first return date. I accept that the mother wanted to put the financial burden for the mediation on the father, as yet another hurdle to him spending time with the child.
I do not accept the mother’s evidence that she “asked the Court if she could talk to someone” referring to the Child Inclusive Conference. The conference is a case management tool and it was ordered by Judge Coker.
The mother did not then agree to the time sought by the father. There was a contested interim hearing and Judge Coker made orders for unsupervised regular time for the father.
The father wanted to take X to visit his own grandfather in (omitted) when news of the paternal grandfather’s very poor health became known. The mother objected to this and it did not happen. Significantly, X did not get to meet his great grandfather because the mother would not agree.
The father wanted to take X to the wedding of his brother and the mother would not agree. Not only did she not agree, she told the Court that she did not even accept that there was a wedding on, reflecting her lack of trust of the father. This lack of trust was echoed by the mother’s witness Ms K, a most unimpressive witness clearly highly aligned with the mother and happy to join forces against the father. The mother also decided that her response to the father’s request to take X to the wedding where he was to be a page boy, was to respond by saying she wanted that precise time with X over Easter as she had plans of her own. It was evident during the trial that the mother’s excuse for refusing what I regard as reasonable requests of the father to spend time with the child, was routinely that “I already had plans.” The Court resolved the impasse and ordered that the child could travel with the father to the wedding.
The mother was prepared to rely on the recommendation of the Family Report writer in his first report when a recommendation was made for no overnight until a certain period.
When the period came, the mother by that stage had engineered a situation in which she was allegedly concerned about the child’s behaviour, and on the advice of her then solicitor, was referred to a particular counsellor. That counsellor apparently told the mother to take the child to a doctor. The mother complained of certain behaviours of the child to the doctor, and the doctor referred the mother to a paediatrician. By the time the mother got the child to the paediatrician, the behaviour had morphed into what the mother explained as “possible sexual abuse.”
The mother’s evidence and conduct in regard to this issue is nothing short of disgraceful. I am satisfied that this whole issue was falsely generated by the mother in order to portray the father as a child sexual abuser. In other words, the mother was prepared to accept and report to others that the father was an incestuous homosexual paedophile. Her descriptions to the doctor that the child was masturbating after he had been to the father’s and her belief that this must have occurred by the father either showing the child how to masturbate or teaching him how to masturbate was an overt attempt by her to play what she saw as another card in the armoury of techniques she utilised to have the father not become involved in the child’s life. Moreover though, this particular conduct of the mother was in my view, without foundation, malicious and strategic.
The mother was questioned under cross-examination about the specifics of what she allegedly saw that made her conclude that the child was masturbating. The mother’s description was vague. She did not know when it happened, what day, what else was going on in the household. Only when pressed did she admit that the child was wearing a nappy, and she saw the child lying face down on the couch with his bottom going up and down and she believed (but did not see) his hand was down his nappy. In recounting this alleged event, the mother in my view feigned shock and horror and over acted describing herself as being so shocked on seeing X doing this she had to leave the room. Her evidence was unconvincing. I am not satisfied that anything like what the mother suggests did actually occur. If it did, I do not accept that a mother of two other children (a boy and a girl now young adults) had not in all her years of mothering encountered a child behaving in this way. Given that the child goes to full time day care, and the child mixes with his siblings including his older brother who the mother says spends significant time at home still, there was no basis for the mother jumping to the conclusion that the child must have been shown or taught this behaviour by the father.
The mother did not inform the father of the alleged incident. The mother had no explanation for not informing the father of her alleged concerns about the child’s behaviour, or for not informing him, contrary to the orders in place for equal shared parental responsibility, that she was taking the child for assessment through counsellors, doctors and paediatricians. I am satisfied the mother did this behind the scenes, as part of the strategy to perpetrate false allegations against the father. There is no satisfactory explanation why she never raised this issue in her Court material, particularly when she was making appearances in Court over this period. The mother clearly did not want the father involved in the counselling or assessment as she was making allegations about him. The mother was dishonest in her dealings with the Court in failing to inform the Court at the time of her allegations.
The mother was particularly dishonest in her dealings with the Family Report Writer in failing to inform him that when asked X had expressly denied that the father had shown or taught him to do this, as seen in the paediatrician’s report. The mother gave a distinctly false impression to Mr H when she said instead “X is not denying that his father did this.”
In fact, nowhere in her material does the mother report that X was asked specifically if the father taught him or showed him, and he expressly denied it.
I am satisfied on the balance of probabilities noting the seriousness of the allegations that the father does not present an unacceptable risk to the child and that the mother’s allegations were false and strategic. This finding is a significant finding in terms of the Court assessing the mother’s attitude towards parenting and her capacity to parent. This finding along with the Court’s satisfaction that the mother has done all in her power to undermine the father’s relationship with X, is also determinative of the orders the court will make.
The mother in this matter has sought to attribute some of her anxieties and poor behaviour to the fact of her being adopted. Mr H said that he saw no evidence of any signs that the mother had any psychological issues and if he had done so, he would have included it in his observations. His view was that everyone has anxieties, however, the mother has more than a lot of people. He described her parenting style not as evil, but as different. The mother has made her own life and successes and as an adult has chosen not to have a relationship with her adoptive parents. The mother’s conduct demonstrates her strong belief that her own relationship with X has priority above all others (and particularly the father), but that she has no regard for the benefit to X of having his paternal family including the father in his life. That part of X’s emotional wellbeing is completely overlooked by the mother. To that extent, she is not able to provide for his emotional wellbeing.
Overall, it can be seen that the mother is prepared to believe that the father has committed sexual abuse upon X, he is prepared to abduct him and disappear with him or even kill him, and he has no role to play in X’s life.
In this context, it is difficult to accept that the mother’s arrival at Court on the first day of the trial with proposals for incremental increases in time working towards an equal time arrangement in 2016 was ever a genuine position. It is equally difficult to accept the submissions of her Counsel that at the eleventh hour, the mother has seen the error of her ways.
During the trial I asked the mother if she had done the Post Orders Parenting Program and she said she did it years ago. If she did, it clearly meant nothing to her. There is nothing about the mother’s conduct which shows she appreciates the value of X having a loving relationship with his father and that X has a right to that relationship.
I also asked the mother if she had ever contemplated getting therapeutic counselling and she asserted that she did “(omitted)” at work, and she and her workmates had “buddies” and they disclosed things to each other in that (omitted) environment. This answer illustrates the mother’s naivety about what therapeutic counselling by a person with formal qualifications consists of. So too did the mother’s answer that she had stayed in the room with Ms J, the child’s counsellor, and that this would somehow mean she too had received counselling. It was surprising to hear that the mother did not engage in any counselling, given that Judge Coker made a strong recommendation that the mother address her anxieties and seek counselling to help her deal with the future unfolding of time for the father. The mother ignored this advice. She also ignored the advice of her then solicitor, who wrote and told the mother that she needed to address her alleged anxieties as soon as possible.
I note that the mother told the Court that in her work experience she did the work of an (omitted) though she never had any formal qualifications, degree or otherwise, to do so. I note the mother referring to her work colleagues as “other professionals” and her assertion that talking to the other professionals at work would in some way excuse her non-attendance at counselling. I have a strong impression that the mother has an overinflated view of her own qualifications and does not place much store on those with a degree and experience and training in (omitted) work. There is no sign of the mother changing her behaviour to the time of trial and during the trial. The Court suggested at the close of evidence on day one, that X’s grandparents who were visiting from (omitted) for the trial should have more time with the child, particularly as the father had asked for more and it had been refused. The mother’s immediate reaction was to say that she already had plans. This is the default position of the mother and has been since X was born.
Once again, the extra time only occurred because of the Court intervention.
At the conclusion of the trial, given that the mother had moved her position away from a graduated increase in time over the remainder of 2014, and all through 2015 to starting week on/week off now, the Court made an order until further order that the child spend week on/week off from Friday to Friday with each parent, such orders to continue throughout the school holidays on that basis until further order, with specific orders about Christmas Day and Christmas Eve if the father is in the same place as the mother. I made it clear to the parties that whoever gets the special days of Christmas Eve and most of Christmas Day this year will not get it next year and that by Christmas next year, the block period of one half of the holidays will be taken in one block.
Ms K
This witness was unfortunately an unimpressive witness, highly aligned with the mother. She did not consider that the mother’s fears of abduction of X and disappearance with X when the father’s flight was cancelled were at all unrealistic. This witness, who does not have children of her own, was determined to convince the Court that these things do happen and they happen “more than the Court would realize.”
The witness was a stroppy defensive witness who would in no way act as a friend who might temper some of the mother’s anxieties. If anything, unfortunately, she would be fuelling them.
The father
The father was as described in the Family Report. He is a young man, polite, very measured and he gave thoughtful answers. I considered he was at pains to be co-operative, and he admitted that he played a part in the poor communication. He accepted that the mother was a good mother but added a caveat that she was not a good mother in terms of accepting the child should have a relationship with him.
I consider the father has been stoic in the face of unfailing criticism and obstructionist behaviour by the mother. In all of the circumstances set out in the father’s material, I am satisfied that the father has given an honest account of those occurrences. Really, none of these issues raised were denied by the mother, and she offered little to no excuse to justify her behaviour. As I have already mentioned, she generally said she didn’t know why she had done things, and when pressed, it was hard to understand the substance or genuineness of her response.
If the worst thing the father has ever done is to call the mother “unhinged” in light of the mother’s own Counsel admitting that the father’s description of the mother as being unhinged may have been warranted, I consider the father’s response to the mother’s conduct has been very measured. The mother has underestimated the father’s quiet determination. I do not accept the mother’s assertion that the father’s new partner is behind the father’s interest to spend time with X. That assertion is without foundation and is another example of the mother devaluing the father’s role in X’s life and his love and commitment to X.
The father’s written testimony was completely validated as being truthful as seen in the thorough cross-examination of the mother by the father’s Counsel, Mr Betts. The father is child focused. He is a committed father who has much to offer X.
Wherever the father’s evidence is contradicted by the mother, in the absence of any independent evidence, I prefer the evidence of the father.
The father’s partner, Ms S
This witness was an honest, polite and reasonable person. She has not, like this Court so often sees, tried to lead the charge in this dispute. She has taken an appropriate role in the relationship between the father, herself and X. There is nothing in her behaviour which would suggest that she has tried to do anything other than be supportive of X’s relationship with the father and she has portrayed herself as a friend and not a dominant step mother.
I found her an impressive witness.
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).
In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated:
“The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).” The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 made significant changes applying to matters filed on or after 7 June 2012, which this application is. As a result of those legislative changes, when applying the primary considerations under s 60CC (2) the Court is required to give greater weight to the second consideration, that is, protecting the child from harm.
In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time. A determination as a question of fact that it is in both in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal, significant and substantial time.
The father’s Initiating Application in this matter was filed on 28 November 2012 which is after amendments were made on 7 June 2012 which provide in section 60 CC (2A) that in applying the primary considerations, the Court is to give greater weight to the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse and neglect or family violence.
In this matter the father gave evidence, as did the mother. The Family Report Writer prepared two reports and along with the other witnesses, was cross examined.
In these reasons a statement represents a finding of fact unless indicated otherwise.
In turning to the primary considerations:
60CC(2) The primary considerations are:
The benefit to the child of having a meaningful relationship with both of the child’s parents
I am satisfied that X is a much loved child and that he has a strong and loving relationship with each of the mother and father. As Mr H’s report notes, X is of an age now where it is in his best interests that he develops significant attachments beyond the mother and he has developed a significant attachment to the father as well as the mother.
The orders in the future need to accommodate the passive hostility that the mother has shown for years now towards the father. As Mr H noted, it is just a matter of time before X is exposed to and becomes aware of the mother’s lack of respect and significant mistrust of the father. When this occurs, X is at risk of having to choose one parent over the other, and it is entirely not in his best interests to be forced to do this. The mother unfortunately also has close friends such as her witness Ms K who has deep sympathy for the position that the mother says she has been in, such as panicking that the father has abducted the child when his flight gets cancelled and delayed. I regard the mother’s reaction in this regard as quite hysterical and entirely without foundation.
There are a myriad of circumstances referred to in the father’s material that show the mother exerting her control over everyday situations, including it being at her sole discretion as to whether she will answer phone calls or messages from the father, or carry through with long standing arrangements for the child to spend time with the father. There are other occasions such as the father’s birthday, and when he came home early from being away for weeks, when she could have extended the opportunity for the child to see the father, but which she chose not to. These refusals were in my view unreasonable and selfish. The mother has the child sleeping with her in her bed at the time of trial, and he had been doing so all year. The mother says she still breast-feeds X aged 4 years and two months when he wants it, at night, just for comfort, in her bed. The mother denies that her parenting style is smothering. I consider that she has tried to “own” X and literally keep him attached to her, whilst simultaneously causing difficulties whenever the opportunity arises in terms of X’s relationship with the father. Whilst the mother is keeping up breastfeeding, the father is offering X experiences such as fishing and travel and other age appropriate activities. Given the mother’s attitude towards the father and her obvious resistance to the father spending time with the child, and her litany of complaints about the father, I consider it is in X’s best interests to have a living arrangement where he has significant opportunity to be exposed to his father’s style of parenting, and not just his mother’s as was the mother’s position until day one of this trial. The mother switched her position on the morning of trial, but as Mr H observed, just because her position on time with the father changed, does not mean that her attitudes have changed.
After the mother was cross examined it was clear that the mother’s position towards the father, and all of the grievances she held against him were still held. I therefore consider that it is in X’s best interests to spend more time under the influence and parenting style of the father, who has demonstrated that even through the most vile of accusations, that of being a paedophile, he can remain child focused. The father has not been punitive in any way in regard to the orders sought, or his communication with the mother. As I said, I consider he has shown considerable maturity and unwavering commitment to X in the face of significant insult from the mother.
I consider it is important for X’s future development that, as recommended by Mr H, X develops attachments beyond his mother and it is critical in my view for X’s long term future for him to be able to be given every opportunity to develop and through that to achieve his full potential in life. The mother has not shown the same ability to do this as has the father.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no family violence alleged by either party against the other. It is important in my view for the orders into the future to ensure that X is not exposed to the mother’s derogatory view of the father. Protections need to be in place to ensure that the mother’s previous conduct of undermining the father’s role in X’s life, and her preparedness to resort to even making false claims of likely sexual abuse, do not affect X’s current loving and strong relationship with the father and the father’s family. Part of this protection will be ensuring that X spend sufficient time to ameliorate the mother’s influence in this regard and ensure that X primarily spends time with the father. I will also mandate the mother’s attendance upon a psychologist or health practitioner who holds a degree in the social services or health as being a condition of the child’s time with the mother.
Parental Responsibility
Section 61D of the Act contains a rebuttable presumption of equal shared parental responsibility unless there is evidence of family violence, abuse, neglect or emotional abuse of the child.
In broad terms, the mother’s failure to recognize that the child is entitled to have a meaningful relationship with the father and her conduct in this regard could be viewed as emotional abuse.
However, even if the presumption applies, I do not consider that it is in X’s interests to have his parents sharing responsibility for making major long term decisions. Communication between them is not possible, given the mother’s lack of respect and regard to the father, her refusal to communicate with him when requested to do so, and her obstructionist attitude towards communication with the father. The mother’s dialogue and way of communicating as seen in the text messages annexed to the father’s Affidavit[3] which involved the mother deliberately refusing to admit or deny that the pick up time would be 10.30am stands as a stark reminder of how difficult and obtuse the mother can be when she turns her mind to it. At the trial, there was no valid explanation of this behaviour and no evidence that the mother’s previous tactics of alarmist reactions to everyday situations, such as a flight being cancelled, have ameliorated. Mr H, a very experienced Family Consultant with the Court for some 19 years, considers that it would be nigh on impossible for the parties to communicate effectively to make long term decisions regarding X and recommends that the father have sole parental responsibility.
[3] Affidavit of the father, filed 10 October 2014, annexure 1.
The mother’s initial position when she filed in this Court was that she be given sole parental responsibility. At the day of trial, it was that she and the father have equal shared parental responsibility. By that stage, the Family Report was suggesting that if the Court was troubled by the mother’s behaviour, the child should be spending more time with the father than the mother, and the father should have sole parental responsibility.
The father seeks an order for sole parental responsibility and that is the order which I consider is in X’s best interests. The mother has shown that she cannot put the child’s interests above her own desire to control all situations regarding X, and I am satisfied that the mother will not act in the best interests of X when engaging with the father in making long term decisions. The mother in my view has acted in bad faith in regard to strategically making false claims of sexual abuse regarding the father and I do not consider that she alone would make decisions in X’s best interests.
I am satisfied that after consideration of all of the issues referred to in these reasons which involve the mother’s poor conduct towards the father, that it is in X’s best interests that the father have sole parental responsibility to make major long term decisions for X. I note that the father is in the (employer omitted) and that he is currently based at (omitted) and he works Monday to Friday and that there are weekends that he needs to go in to “lockdown” two or three times a year.
I am satisfied that the father acknowledges the importance of the mother and X’s half siblings and that he has genuine respect for their roles in X’s life, and that he will always put X’s best interests first and foremost.
As can be seen from the Family Report and the material filed, communication between these parents does not happen freely. It has been fraught with difficulty and primarily obstructed on the part of the mother.
The Court does not hold any hope that the mother will suddenly change her communication style or attitude. The Report Writer has recommended that given the impossibility of communicating successfully, that the father have sole parental responsibility.
The mother seeks an order for equal shared parental responsibility, though her earlier orders sought sole parental responsibility.
I am not satisfied that the mother would use an allocation of equal shared parental responsibility or sole parental responsibility in a child focused and reasonable manner. Her actions and conduct referred to in these reasons, including her preparedness to make false allegations about the father, lead me to the inevitable conclusion that parental responsibility must rest with the father. I am satisfied that he will act in the child’s best interests at all times, and that he understands and genuinely respects the mothers’ role in the child’s life. I am not satisfied that the mother has any respect for the father and I have already found as seen elsewhere in these reasons, that the mother will do and has done, anything and everything she can think of to have the father excluded from X’s life.
S.60CC(3) The additional considerations are:
S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
X is too young to express a view as to where he should live in the future and to understand the implications on a long term basis of any such expression.
S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
I am satisfied that X has a strong and loving relationship with each of the parents. I am also satisfied that this has come about through the force of Court orders and the father’s commitment, but that the mother has been working behind the scenes to undermine this relationship, as seen in the allegations of sexual abuse and her conduct generally.
I also have a strong impression that the mother is not willing to jeopardise her relationship with X by administering fairly ordinary directions in regard to his poor behaviour. The mother does not seem to want to reprimand X, but says instead she praises good behaviour. Mr H has commented regarding his own observations in this regard with the mother failing to intervene to prevent X’s behaviour in jumping on and off couches during interviews, with the mother preferring to catch him each time he did this rather than disciplining him.
The mother described home situations where she said X was angry and he opened the fridge door and threw all the food out of the fridge on to the floor, she described him getting angry and pushing chairs over. The mother’s parenting style is not only different from the father, it is laissez faire. I cannot see the mother’s style playing out well into the future given that there will be times when he will have to do things, such as put a safety belt on or hold her hand when crossing a road where his refusal to do so is going to place him at risk if the mother is not prepared to be more interventionist in her approach. It is noticeable in the Family Report that as soon as the father entered the room to be interviewed with X, he exerted appropriate parental authority to stop the out of control behaviour of X. I am not sure that the mother has really considered the long term consequences of her parenting approach. In any event, it is dramatically different to the father and this is one of the reasons that a shared care arrangement of equal time would present difficulties for X, moving from one house to another with entirely different parenting values in each house on a week on/week off basis. I am satisfied that the different approaches are so stark, that X will likely suffer significant confusion in such an arrangement. Added to this, the mother does not trust the father and has little respect for his fathering role, all of which are not compatible with an equal time arrangement.
S.60CC(3)(c) 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; and
(ii) To spend time with the child; and
(iii) To communicate with the child.
I am satisfied that the father has taken every opportunity to participate in making decisions regarding long term issues and to spend time and communicate with her. As referred to elsewhere in these reasons, his failure to do so is due to the obstructionist attitude of the mother rather than any lack of interest on the father’s part.
S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The mother and father have each fulfilled their obligations to maintain the child.
S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
X is old enough and secure enough in his relationship with the mother and father to live with each parent. The Family Report and evidence of the author confirms that X has a strong bond with his father and is old enough to live with him primarily and spend time with the mother. The likely effect of separation from his mother and spending most of his time under the father’s influence is that X will be assured of having a meaningful and loving relationship well into the long term with both parents. Left living primarily with the mother, or spending equal time with the mother, will expose X to the harmful effects of the mother’s attitude towards the father, which have been referred to elsewhere in these reasons and which will ultimately lead to X having little or no relationship with his father. Living with the father, X will also spend a childhood having the opportunity to enjoy the love and affection from the paternal extended family and significantly, the mother living with the father is in my view the only arrangement which will enable X to have both parents in his life as I am satisfied the father will and does respect and encourage X’s relationship with the mother. The father’s parenting style is also in my view going to better equip X to participate in his schooling and society in general as I consider that X will learn what behaviours are acceptable and not acceptable. X will also benefit from the sensible parenting approach of the father who is prepared to exert appropriate parental authority, as opposed to the mother’s techniques which fall short on being properly able to manage X’s challenges to her authority. Having certainty about something as basic as behavioural boundaries will assist X to achieve his goals in life. Living primarily with the father, as opposed to week on/week off, will reduce confusion for X in being exposed to the very different parenting styles of the mother and father. The lack of ability to communicate between the parties, and particularly the mother’s ability and unexplained willingness to create major difficulties in very basic situations such as asking if the pick-up time will be at 10:30am, precludes an equal time arrangement between the mother and father. Moving from one house to another each week requires excellent communication to deal with the range of issues which arise involving children and school, possessions moving from house to house, extra-curricular activities and social arrangements which occur frequently. A shared arrangement also requires mutual trust and respect between the parents and the mother has stated categorically and shown that she does not trust the father nor does she respect him. I consider therefore that there are significant advantages in the father’s proposal involving X being primarily with him and spending time with the mother.
S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Each of the parties live in (omitted) and there is no issue of distance or cost of travel. Arrangements ought to be put in place which reduce as much as possible the direct face to face contact between the parties. The mother has repeatedly given evidence that she failed to tell the father things she ought to have, because she didn’t want to raise it at handovers. Whilst handovers are not the occasion for raising issues which are in dispute, all parenting issues ought to be raised nonetheless through other methods and occasions. The mother has given no valid reason why she did not call the father or text him to discuss issues.
I intend to order that handovers occur to and from school, and that the other parent ought not be at the handover or the school at the time the receiving parent is collecting the child. Orders will also provide for a mechanism for the parties to discuss other disputes should they arise.
S.60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
In addition to what I have said elsewhere in this Judgment, I am satisfied that the father has shown sufficient maturity and composure in the face of great difficulty to consistently provide for X’s emotional wellbeing. He has in no way tried to undermine the mother, he has been supportive and respectful of X’s relationship with his mother and his relationship with his half siblings, and all of the mother’s family friends. I am satisfied that he has the capacity to provide for X’s intellectual needs.
The mother has significant deficiencies in her capacity to parent. Apart from the issues to do with her laissez faire attitude towards discipline, her lack of respect for the role that the father can play in X’s life and X’s right to know and be cared for by the father reflects very poorly on her capacity to parent and her attitude towards parenting. Her willingness to falsely suggest that X was at risk of sexual abuse in spending time with the father has a profound effect on her capacity as a parent, her responsibility towards parenting and her ability to provide for the emotional needs of X. The mother has been inconsistent in her parenting style, insisting that X was not to have tap water for years, presumably to protect him from something but alternatively she refuses to restrain him from jumping on furniture, placing him at risk. I consider the father’s parenting offers X many opportunities and experiences he will not have with the mother. I have a strong impression that the father will raise X to be independent and confident. Whereas the impression from the mother’s parenting in breast feeding X at 4 years of age, having him sleep with her and not allowing him to have tap water, is that her mothering style is very intense, yet in other respects laissez faire.
S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I have nothing to add.
S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting Order under this Part will have on that right
This child does not have an Aboriginal or Torres Strait Islander heritage.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
In their own right in terms of providing food, shelter and the basic requirements for X, each party has demonstrated an ability to do this.
I have significant reservations about the mother’s capacity to parent as referred to in these reasons including an inability to properly control and parent X and a willingness to making false allegations against the father. The mother also fails to acknowledge the role of the father and the importance of X having an ongoing relationship with his father.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family
S.60CC(3)(k) 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 following:
the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the Court in, or in proceedings for, the order;
(v) any other relevant matter.
There are no family violence orders in place and no allegations of family violence.
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is in X’s best interest that this litigation comes to an end. The Court intends to make final orders.
S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant
Clearly from what I have said elsewhere in this judgment, the mother’s inability to encourage or promote a relationship between X and his father is a significant matter and will remain a significant matter whilst the child lives under the primary influence of the mother. Whilst the mother through her Counsel indicated she was ready to offer more time for the father, there was nothing in the mother’ conduct that suggested her conduct over the past years was about to take on a significant change.
Discussion
The mother proposes that X spend equal time with herself and the father. The father proposes that X live with him and spend each alternate weekend with the mother and possibly another night per fortnight, if the Court is not satisfied that the mother will encourage the relationship.
Mr H supported the child living primarily with the father if the Court was satisfied that the mother was undermining the father’s role and if the Court was not satisfied that her previous conduct would change. He noted that there was no evidence of her changing her attitude towards the father. Mr H also noted that the parents’ parenting values were so diverse, that equal time was contra-indicated.
I am satisfied that the mother does not respect the father and that she has engaged in a determined strategy to remove the father from the child’s life. I am satisfied that even though she has mostly complied with orders, there have been times when she has chosen to ignore her obligations such as the father’s birthday and the child’s birthday.
I am satisfied that the mother has been unreasonable in her refusal for other times that the father has asked for, particularly in light of the limited time he was having with X and that at times, his work prevented him from spending the time provided for in the orders.
I am also satisfied that the mother deliberately raised an issue of possible sexual abuse involving the father and that she did this falsely, and that it was strategic. Overall, I am not satisfied that her previous conduct will change. I intend to make the mother’s time conditional upon her consulting with a qualified psychologist as I consider that if there is to be any hope in the future of the mother changing her behaviour, it will only occur through professional intervention.
The father has shown an ability to rise above the criticisms and insults directed to him by the mother. His new partner is a positive influence in X’s life and she also in my view shows respect and regard for the mother. I am satisfied that the arrangement in X’s best interest is for X to live primarily with the father and spend time with the mother.
Mr H said that the X should spend no less than each alternate weekend with the mother, and that spending four nights a fortnight would enable X to maintain a meaningful relationship with the mother.
The mother has through her Counsel basically pleaded with the Court for another opportunity to show that she can be supportive of the relationship between X and the father. She says that she has changed her attitude to the father and now realizes the error of her ways. These submissions were unfortunately not supported by the mothers’ conduct nor her evidence. I consider that the orders which provide for X’s best interests, being mindful of the primary and additional considerations, are for X to live with the father and spend each alternate weekend with the mother, commencing Friday and concluding Monday and overnight in the off week. The holidays should be shared equally. I do not intend to make orders restricting where either parent can travel outside of (omitted), as I consider this to be an unnecessary restriction. If either party intends to travel interstate (in the time they have the child pursuant to these Orders), they should give the other parent at least 72 hours notice if possible. When X is spending holidays with either parent, that parent is to facilitate Skype/Facetime/telephone contact on two occasions each week with the other parent. I intend to make orders in terms of the father’s proposal including that the parties can agree in writing to any other time agreed.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Willis
Date: 22 January 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Costs
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