Pattison and Parry
[2015] FCCA 3185
•3 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATTISON & PARRY | [2015] FCCA 3185 |
| Catchwords: FAMILY LAW – Parenting – possible exposure to sexually explicit material or sexual abuse – possible exposure to psychological abuse or physical abuse – whether an unacceptable risk. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAC Evidence Act 1995 (Cth), s.140 |
| Jones & Dunkel (1959) 101 CLR 298 Hall & Hall (1979) FLC 90-713 Reg Bartley and Cec Brahe, LexisNexis Butterworths, The ABC of Evidence, vol 1 (at Service 34) [22,040], citing Dilosa v Latec Finance Pty Ltd (1996) 84 WN (Pt 1) (NSW) 557 at 581-2 |
| Applicant: | MR PATTISON |
| Respondent: | MS PARRY |
| File Number: | HBC 813 of 2012 |
| Judgment of: | Judge Baker |
| Hearing dates: | 30 and 31 July 2015 and 3 November 2015 |
| Date of Last Submission: | 3 November 2015 |
| Delivered at: | Hobart |
| Delivered on: | 3 December 2015 |
REPRESENTATION
| Applicant: | Mr Pattison in person |
| Solicitors for the Applicant: | N/A |
| Respondent: | Ms Parry in person |
| Solicitors for the Respondent: | N/A |
ORDERS
All previous parenting orders be discharged.
The mother is to have sole parental responsibility for the child, X born (omitted) 2010 (“X”), save that the mother shall, prior to making the sole ultimate decision about major long-term issues:
(a)Advise the father in writing of the decision intended to be made;
(b)Seek the father’s written response in relation thereto;
(c)Consider by reference to the best interests of the child any such response prior to making any such decision; and
(d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.
The mother provide an authority to X’s school, doctor or any other treating professional so that the father may be provided with any information, written or oral, that the father may request.
The parties notify the other immediately in the event of any serious illness or injury whilst X is in their respective care.
The parties communicate via email in relation to X’s welfare except in the case of emergency which shall occur by text message.
The parties advise one another of any change of email or telephone contact details as soon as reasonably practicable of any change occurring.
Each party shall be at liberty to attend all school and extra-curricular activities and events to which parents are ordinarily invited or at which parents ordinarily attend.
The father spend time with X as follows:
(a)each alternate week from 10:00 am Sunday until 5:30 pm Tuesday, commencing 6 December 2015;
(b)each alternate week from 10:00 am Monday, or after school when X attends full-time school, until 5:30 pm Wednesday commencing 14 December 2015;
(c)such further time as agreed.
Notwithstanding any other order the following provisions apply to special days:
(a)in the event X is not spending time with the father on Father’s Day, from 10:00 am until 5:30 pm; and on the father’s birthday from after school until 5.30pm if a school day, and from 10:00 am until 5:30 pm if a non-school day;
(b)in the event X is not spending time with the mother on Mother’s day, from 10:00 am until 5:30 pm; and on the mother’s birthday from after school until 5.30pm if a school day and from 10:00 am until 5:30 pm if a non-school day;
(c)in the event X is not spending time with the father on her birthday, from after school until 5.30pm if a school day, and if a non-school day from 12.30pm until 5.30pm;
(d)in the event X is not spending time with the mother on her birthday, from after school until 5.30pm if a school day, and if a non-school day 12.30pm until 5.30pm;
(e)commencing 2015 and each alternate year thereafter X spend time with the father from 2:00 pm Christmas Eve until 2:00 pm Christmas Day and with the mother from 2:00pm Christmas Day until 5:30pm Boxing Day;
(f)commencing 2016 and each alternate year thereafter X spend time with the mother from 2:00 pm Christmas Eve until 2:00 pm Christmas Day and with the father from 2:00pm Christmas Day until 5:30 pm Boxing Day;
(g)commencing 2016 and each alternate year thereafter X spend time with the father from 10:00 am Good Friday until 2:00 pm Easter Sunday and with the mother from 2:00pm Easter Sunday until 10:00am Easter Tuesday and each alternate year thereafter;
(h)commencing 2017 and each alternate year thereafter X spend time with the mother from 10:00 am Good Friday until 2:00 pm Easter Sunday and with the father from 2:00pm Easter Sunday until 10:00am Easter Tuesday;
(i)such further time as agreed.
Changeover, unless otherwise agreed, shall occur at the (omitted) Library.
The mother be restrained from leaving X in the unsupervised care of Mr T or Mr I.
Both parties be restrained from denigrating the other party in the presence or hearing of X, and from permitting any other person to do so.
IT IS NOTED that publication of this judgment under the pseudonym Pattison & Parry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 813 of 2012
| MR PATTISON |
Applicant
And
| MS PARRY |
Respondent
REASONS FOR JUDGMENT
Introduction
The father of the child, X born (omitted) 2010, (“X”) has applied for parenting orders. These were opposed by the mother.
In 2009 the parties commenced a relationship which ended in April 2012.
After the end of the relationship, X did not spend time regular with the father. He recommenced spending time with her on a regular basis in November 2012. X’s time with the father built up gradually. She currently spends time with him on two nights each week.
Current Circumstances of the Parties
The father is 35 years of age. He gave evidence that he works on a casual basis for three different companies, as a (occupation omitted) and (occupation omitted). He indicated that he can generally dictate the hours of his work so that he is not working when he has X in his care. He lives with his parents in the (omitted) area.
The mother is 33 years of age. She has a son from a previous relationship, Y, born (omitted) 2003 (“Y”). Y lives with the mother and spends time with his father three days each week. The mother has a good co-parenting relationship with Y’s father. Y attends (omitted) Primary School and is in Grade 5. X attends Kindergarten at (omitted) Primary on the days when she is in the father’s care. He enrolled her on 10 March 2015.
The mother lives in a three bedroom rental home in the (omitted) area. She works at the (employer omitted) on two nights each week as a (occupation omitted). She also works, on a part-time basis as a (occupation omitted) on one day each week. When she is working, her mother cares for X and Y. Her shifts usually last between three to four hours. At the end of her shift, she is collected from work by the maternal grandmother and she and the children are taken home. She also online (employment omitted), which she can do from home when the children are asleep.
Proposals
The father’s proposals are set out in his Amended Initiating Application filed 10 November 2015.
The father sought an order that X live with him on four nights each week from Sunday 10:00 am until Thursday 5:30 pm. He also sought time with X on special days. He proposed that the orders continue until X is six years old.
In his Case Outline the father indicated, “I do not seek to reduce the time X spends with her mother. The intent of my application is that the time X currently spends in the care of maternal grandmother should be reallocated to her father.”
The mother sought an order for the current arrangements to continue; for X to live with her and spend two nights each week with the father. She also sought orders for time on special days. She proposed that the orders continue until X started full-time school in 2016.
On 3 November 2015, the matter was relisted so I could ask the parties to provide their proposals for the long term living arrangements for X. I indicated that I was not prepared to make orders which only continue for a short period. I gave them notice that I was considering making an order that one parent have sole parental responsibility. I ordered that the parties make, file and serve proposals for time during school terms, including weekday and weekend time, proposals for school holiday time and submissions in respect of an order for sole parental responsibility in favour of one party.
The father proposed time in the same terms as his previous proposals, save that he proposed that the orders continue until X is eight years old, and the commencement dates for Christmas and Easter arrangements. He sought an order for sole parental responsibility in his favour.
The mother sought orders in similar terms as her previous proposals, save that she did not seek a review of the arrangements in 2016, and she sought an order for sole parental responsibility in her favour.
Issues
The main issue to be determined is the amount of time that X spends with each of her parents. The father raised concerns about X’s possible exposure to sexually explicit material or sexual abuse while in the mother’s care. He alleged that X is suffering from psychological abuse in her care. He also alleged that X is suffering physical abuse when in the maternal grandmother’s care.
Evidence
The father relied on the following documents:
· His affidavit filed 10 November 2014;
· The affidavit of Mr J filed 31 October 2014;
· The affidavit of Ms C filed 5 November 2014;
· The affidavit of Ms E filed 5 November 2014;
· The affidavit of Ms G filed 7 November 2014;
The father filed an Outline of Case, in which he set out his arguments in detail. He referred in the Outline to a report dated 26 November 2012 from Dr L, a clinical psychologist. He also referred to it during cross-examination of the mother. He had tendered it at a previous court event. I gave the parties notice that I intended to treat the report as an Exhibit. There was no objection to this.
The mother set out in her Case Outline the documents relied on:
· Her affidavits filed 12 December 2012 and 11 November 2014;
· The Family Consultant’s Memorandum to Court dated 11 December 2012;
· The Reports of Mr S dated 26 September 2013 and 19 November 2014.
She also relied on her affidavit filed 28 July 2015.
This matter was more difficult than it should have been, due to both parties being self-represented at the hearing. The mother was represented throughout the proceedings, but was not legally aided for the trial.
The mother and the father cross-examined each other. The mother cross-examined the paternal grandfather and the paternal grandmother. She did not ask to cross-examine Ms G or Ms E. Neither party cross-examined Mr S or the Family Consultant.
The mother did not call the maternal grandmother to give evidence. There was no explanation by the mother about her not giving evidence. An available inference to make was that this has occurred because her mother’s evidence would not have helped her case.[1] However, the absence of the maternal grandmother as a witness cannot be used to make up any deficiency in the evidence. “Failure to call a witness will assist materially in determining what findings or inferences might fairly be made or drawn from the evidence of the opposing party, but it will not ordinarily provide a legitimate basis for supplying what is a clear deficiency in the case of the opposing party”.[2]
[1] Jones & Dunkel (1959) 101 CLR 298.
[2] Reg Bartley and Cec Brahe, LexisNexis Butterworths, The ABC of Evidence, vol 1 (at Service 34) [22,040], citing Dilosa v Latec Finance Pty Ltd (1996) 84 WN (Pt 1) (NSW) 557 at 581-2.
The father’s case was confusing. Although he made allegations about the risk to X in the mother’s care, he did not seek primary care of her. His proposal was for X to live with her mother on three nights each week.
He submitted that the evidence, which supports his abuse allegations, are the reports made by his mother to Child Protection Services, their response, a photograph and the evidence of his parents.
Chronology of X’s time with father after the end of parties’ relationship
X did not spend any regular time with the father from around May 2012 until November 2012.
The father told Dr L in June 2012 that he spent time with X on 19 May 2012 at the mother’s residence, when he played with her for two hours. He said that X was a little apprehensive during the visit, but he expressed an understanding that she needed time to reacquaint herself with him.
Throughout the father’s evidence and his parents’ evidence, the mother was accused of abusive behaviour towards X and deliberately planning to prevent X’s time with the father. Throughout the father’s evidence he accused the mother of “absconding” with X.
The maternal grandmother said “to deny X access to her father, without just cause, I believe amounts to emotional abuse”. The paternal grandfather said, “overall what we have here is a carefully planned operation to separate a father from his daughter by means of a plethora of unsubstantiated gossip, lies and libellous statements, actual assault, and activities that are deliberately provocative and/or illegal so that Ms J can raise both Y and X while Ms Parry pursues a paying career outside the home and receives a child-care allowance for X since the one she was receiving from Y came to an end when he reached the mandatory age”.
The mother characterised the breakup with the father as a series of gradually increasing disturbing behaviours on his part. She described him as being possessive and demanding. She agreed for him to spend time with X at her home.
She received a number of text messages via Facebook from the father on 28 and 29 April 2012, in which he wrote,
“Fuck Fuck Fuck You.
“Fine if it’s going to be like this then I’ll play
I can’t phone you. The only other options I have to get your attention are; start taking this chat onto open fb or kicking in your door. I’m not going to do the one and I dought you’d wont the other. So please fucking answer me. You have played this particular little power game from the start and I’m really sick of it.
What the fuck did I ever do to you
... I am still just as jealous and protective of X though if not more. Reducing my options and pushing me into a corner will not help…
You need to forget this (omitted) stuff I made a deal with you which you broke, but I never signed anything. I’m willing to go back to that deal if you will but we would need to negocate some more spicific bits. I'm X’s father and I am entitled to some things.”
The mother said that the father’s behaviour made her fearful for her and her children’s safety. She was concerned about him harassing her and finding out where she was living. She believed that he had been seen jumping over her back fence, when he had no reason to be at her home. She said that he was harassing her on Facebook and harassing her friends.
The father was aware of where she was living because on 7 June 2012, he arranged for the Family Relationship Centre to write to her new address at (omitted).[3] She was not prepared to attend mediation with the father at that stage, due to his behaviour regarding the incident, which occurred on 7 June 2012 (discussed further on in these Reasons).
[3] Mother’s affidavit filed 12 December 2012, annexure B.
On 24 August 2012, the father instructed solicitors to write to the mother’s solicitors. He sought unsupervised time with X on three days each week, including overnight and on special occasions. On 12 September 2012, the mother’s solicitors responded. They indicated that the mother held concerns about the father’s threatening and stalking behaviour, his mental instability and illicit drug use. The mother proposed that X spend time with the father at (omitted) Contact Service (“the centre”).
In response to another letter from the father’s solicitors, dated 28 September 2012, the mother’s solicitors responded on 22 October 2012. They again proposed supervised time at the centre. On 24 October 2012, the father’s solicitors responded. The father accepted the proposal that X spend time with him at the centre. He commenced spending supervised time with X at the centre in November 2012.
On 26 November 2012, a clinical psychologist, Dr L provided a report to the father’s solicitors. She reported that the father had been referred to her by his general practitioner for assessment and treatment of an adjustment disorder with depressive symptoms. This was attributed to the breakdown of his relationship with the mother and his lack of contact with X. The father attended six treatment sessions. He initially reported a number of symptoms of depressed mood, difficulty making decisions, irritability, disturbed sleep patterns, social and personal withdrawal, and feelings of hopelessness and helplessness.
Dr L’s opinion was that his presentation was consistent with “a diagnosis of adjustment disorder, chronic, with depressed mood, chronic, whereby the presentation of depressive symptoms described have occurred in response to the stressor of the relationship breakdown and the loss of contact with his daughter X. An adjustment disorder is a psychological response to an identifiable stressor (loss of contact with X) that results in the development of clinically significant emotional or behavioural symptoms”.
Dr L expected a reduction in the father’s then current level of distress on resolution of the custody dispute and reconnection with his daughter.
The father disclosed to Dr L that he had consumed mushrooms on a few occasions, approximately 15 years before and cannabis, on New Year’s Eve 2011. He denied any regular substance use since X’s birth. He reported that he used cannabis with the mother since the birth of their daughter, while she was in the care of the paternal grandmother. He denied being under the influence of substances while X has been in his care.
The parties attended a child dispute conference with Family Consultant Ms D on 11 December 2012. The issue at that time was whether X’s time with the father should be unsupervised and whether he should have longer periods with her.
The Memorandum of the Family Consultant dated 11 December 2012 indicated that Ms D was of the view that “there appears to be some possible psychological risk to X from the father’s presentation for this assessment. Understandably he is upset and angry at what has happened and blames the mother for not being able to spend time with his daughter. However his bitterness and victim mentality was greater than usually observed of disputants even given the circumstances. It seems that this might be his approach in other aspects of his life”.
Interim orders were made by consent on 12 December 2012. The orders provided that X spend time with the father during the day on the days specified in the order, his parents to be present, and various mutual restraints were made. The parties agreed to use a communication book and for the mother to sign all authorities necessary to enable the father to obtain information in relation to X’s education and health.
Further interim orders were made by consent on 3 March 2014. X’s time with the father increased to overnight time. An order for equal shared parental responsibility for X was made. The orders provided that from 3 June 2014, X spend time with the father on two nights each week from 10:00 am Tuesday until 5:30 pm Thursday.
The evidence therefore indicated that there was a period of instability for X after the party’s relationship ended. The mother was concerned about the father’s mental health and behaviour. The father conceded to Mr S that he behaved inappropriately on 7 June 2012 when X was in the car. His psychologist’s report indicated that he suffered from depressive symptoms around that time.
The mother proposed supervised time, until her concerns about the father could be investigated. Family Consultant Ms D raised the issue of psychological risk to X. The mother agreed to progress X’s time with the father on a gradual basis, with regard to these concerns. I am not persuaded that the mother behaved as alleged by the father and his parents.
Reports of Mr S
Mr S was appointed as court expert. He prepared two reports, dated 26 September 2013 and 19 November 2014. Both reports were relied on by the mother. His evidence was not challenged by the father.
Mr S, in his first report, provided helpful information about the parties. The father told Mr S that his job at the time, (occupation omitted), entailed him being away five days a week. For the first nine months of X’s life, he was only home between Friday and Monday. After that he had a job (occupation omitted) and he worked nine days on and six days off.
At the time of the first report, the father was spending time with X two times each week, for approximately seven hours in the company of at least one of his parents. The father reported to Mr S that he was concerned that X was displaying inappropriate behaviours, such as throwing tantrums, using bad language, hitting people and telling them to “shut up”. He also reported that X had made comments such as “you stole my money” and “you’re a bad daddy”. He felt this must reflect what she hears when with her mother. He stated that, at the end of their time together, X was often reluctant to return to her mother. He believed that X’s problems were due to the mother’s influence.
The father told Mr S that he smokes tobacco and had used marijuana occasionally in the past. He reported not drinking alcohol often, but going out every two or three weeks and having seven or eight pints. He said that he had been in trouble with police in the past, for tampering with a motor vehicle and being offensive in public, but has no convictions, other than for being obstructive earlier in the year. He reported that he had seen the police harassing another person and had intervened. He said that he had no mental health problems other than the “bereavement” when he was not seeing X, for which he sought help.
The mother described the father to Mr S as “possessive and demanding”. She reported that she was aware that he wanted significantly more time with X, but it was impossible to negotiate with him. She was concerned that he wanted to impose conditions on X and remove contact between her and the maternal grandmother.
The mother reported that as she grew up without a father, she was very keen for her daughter to have a relationship with the father. However, she felt that when X spends time with the father, he questions her about issues that relate to her; where she lives; what she is doing; and, who she is seeing. Mr S reported that the father does not seem to be aware that his behaviour may be interpreted by the mother as threatening.
In his first report, Mr S wrote that the father did not attend the scheduled joint interview for the parties to discuss future arrangements. Consequently there was no opportunity for him to evaluate the relationship between the parents or their capacity to negotiate with each other.
Mr S prepared a second report. At the time of this report, X was spending time with the father on two nights each week. He reported to Mr S that he was seeking to further increase his time with X based on two grounds. Firstly, X is exposed to potentially dangerous people and frightening material whilst in her mother’s care. Secondly, he believes that X will be exposed to a “better” lifestyle with him and his family. He referred to their higher education level compared to the education level of the mother’s family. Mr S reported that he did not know “any way of quantifying the difference between the families and how, or even if, this difference should be expressed in the amount of time that X lives in both households”.
Mr S noted that, in the course of his interviews, both parents raised their concerns about the quality of the care of X by the other parent. They suggested that, while the communication between them was still tenuous, there have been improvements in that communication and level of co-operation. However, as Mr Pattison did not attend the appointment scheduled for him and the mother, this was not able to be observed.
Mr S wrote that the most negative aspect of the interviews was the range of allegations made by the father against the mother and her care of X. Mr S reported that although the mother has concerns, she seemed more willing to acknowledge these, address them and then let them go.
The father, on the other hand, seemed more inclined to pursue matters. Mr S reported that this may be because the father genuinely believes that there are issues that have not been resolved and need to be addressed, or it may reflect a level of inflexibility and unwillingness to negotiate with the mother.
The father was worried about the possibility of X having been abused. He said that his parents had noted bruises and scratches on X, and that aspects of her behaviour might reflect a direct exposure to inappropriate material. He reported that X would often engage in inappropriate behaviours, such as doing a “striptease” and pulling down her pants and saying, “do you want to see my bum?” The father said his parents had reported these concerns to Child Protection Services, but they would not investigate while the matter was before the Court.
The father’s concerns were also based on X telling him that her maternal grandmother hit her. He alleged that the grandmother had a history of alcoholism and child abuse. He said that this was alleged by the mother in previous litigation about her child, Y. He was concerned that X has been exposed to incidents of family violence. He cited two examples, the car bonnet incident in June 2012 and the mother’s collection of X on 20 February 2014.
The father explained his reasons for wanting orders restricting X’s exposure to various individuals as being a case of “better safe than sorry”. He expressed a belief that there are potential threats to X from these individuals. In regard to the maternal grandmother, he also said that if X were to be minded for more than a couple of hours, it was preferable for a parent to do so. He wanted to have first option of caring for X in those circumstances.
The mother reported that the current arrangement for the father to have time with X was working well for her and X. She reported that X would at times cry because she did not want to leave her, and that she also cried at times when she did not want to leave her father. She reported that “X looks forward to seeing her daddy”.
When pressed about her concerns, the mother reported that her main concern was that X was being made increasingly aware of the tension between the parties, and that she is being told negative things about other people in her life, by the father or his family. She also mentioned that Y is also aware of the tension and is sometimes scared, for example, if he has seen the father near his school. The mother indicated that she feels that the father sees the situation between them as a war, and that his application is about either “control or revenge”.
Responding to some of the concerns raised by the father, the mother noted that it is likely that X has been exposed to material that Y watches. Nevertheless, she said that X does not have nightmares or appear frightened. She also described X as “a bit of a tomboy”, and for this reason she often has bruises and slight injuries.
Mr S reported that X presented as energetic and happy, as well as “quite distractible and very strong willed”. He noted that it will be in X’s best interests for her parents to be able to support one another in their care and management of their daughter.
Mr S concluded that there is “no substantial evidence of risk to X at this time”. He recommended that X remain living with the mother predominantly and that the current schedule be maintained, unless the parents are able to agree to other arrangements. He noted that it would be useful if arrangements were clearly delineated with minimal opportunities for confusion or misinterpretation. He also recommended a period of consolidation, given the changes to X’s previous time with her father and because she is now attending school.
In respect of Mr S’s second report, the father wrote in his Case Outline that “the report is entirely deficient. It contains many errors and almost no clinical assessment. Further Mr S has not presented an assessment based on the considerations of s.60CC of the FLA”. During his closing address, the father referred to errors as follows: Mr S wrote that X spends 3 ½ days per week with him rather than three days; he wrote that he was asking for three nights a week rather than four nights; he wrote that the mother has three jobs when she represented to the Court that she has two jobs; he referred to the father as Mr Pattison; he did not apply any clinical instruments such as a two-way mirror, a reasonable amount of time, and he did not enquire with whom X had spent the previous night.
Notwithstanding his view of the report, the father did not cross-examine and challenge Mr S’s evidence. Mr S correctly described X’s time with the father from 10:00 am Tuesday until 5:30 pm Thursday. He correctly described the time the being sought by the father at that time from 12:00pm Sunday until 5:30 pm Thursday, but summarised this time as “4 ½ days and three nights” rather than four nights. He wrote that the mother works primarily as a (omitted), but she also has a couple of other jobs.
I do not accept the criticism of Mr S by the father that the report is entirely deficient. I consider that such minor errors could not have affected the views and recommendations given by Mr S. He is a very experienced clinical psychologist. I place weight on his opinions and recommendations when considering what is in X’s best interests, although this is not determinative and must be weighed against all other evidence. [4]
[4] See: Hall & Hall (1979) FLC 90-713.
The Parties
I turn to discuss the parties. I was able to observe their attitudes and behaviour as self-represented litigants.
I found that the father’s attitude towards the mother was antagonistic. He was very critical of her and her family. He believes that he has a better parenting history and emphasised a better standard of family education than the mother.[5] He was opinionated when presenting his evidence and when being interviewed by the experts.
[5] Report of Mr S dated 19 November 2014, para 17.
Ms D reported that “the father was restless and expressed his opinions in a strong and somewhat uncontained fashion including that he thought that the system was very biased and sexist…the father expressed himself in an opinionated and bitter manner. He appeared to believe that the system was against him and that he and his parents are experts on children and attachment. He left information, provided by the paternal grandfather to the father’s solicitor on attachment, for the family consultant to consider. Although stating that he was focused on his daughter’s best interests, he was not able to countenance that any proposal other than his own would do so”.
This observation was consistent with his evidence and presentation. He indicated in his Case Outline “I assure the court that I will continue proceedings, in this or a higher court, until X’s best interests are made paramount”.
I found the father to be inflexible and not prepared to make concessions. He continually emphasised what he perceived to be the mother’s and her family’s deficiencies. He blamed the mother for behavioural difficulties exhibited by X.
Although the mother has been subjected to extensive and sustained criticism by the father and his family throughout these proceedings, she was able to answer the father’s questions politely and without bitterness.
The mother was more willing to try to work with the father. She told Mr S that she had concerns about his care of X but did not want to focus on the negatives.
I found the mother to be a pleasant and calm person. I agree with Ms D’s report that “the mother presented as a sensitive and caring individual”.
The father’s inflexibility and his belief, that his views about X should be followed, was demonstrated by his attitude towards X attending an early learning program, child-care and (omitted) Primary School. I discuss this further on in these Reasons.
Evidence of the Paternal Grandparents
The paternal grandparents have negative views about the mother and her family. They believe that their son has parenting skills superior to those of the mother.
The paternal grandfather is a retired (occupation omitted). He said that he worked in various professional positions and practised (omitted) in (country omitted) before his wife was “head hunted” to work in Tasmania. He then became the primary carer of their five children. He purported to make findings about the evidence (for example paragraphs 10, 12, 14, 15) and made conclusions about the best interests of X (for example-paragraphs 26, 35, 38.)
He argued the father’s case. For example, he said, “at no time before or since that incident has anyone been able to provide me with any evidence that Mr Pattison has behaved violently towards Ms Parry, Y, X or Ms J (Ms Parry’s mother) or use threatening behaviour, as defined by law, towards any of them… Allegations that he has threatened them have been made by both Ms Parry and her mother but without any substantial or credible evidence.”
The paternal grandfather based his opinion about an early learning program into which the mother enrolled X on a belief that the program ran for one full day each week. In fact, the program ran for around one and a half hours only once each week.
When cross-examined by the mother, the paternal grandfather agreed that early learning programs, which teach parents how to interact with their children and prepare them for the next stage of schooling, can be very valuable. When he was provided with a description of the early learning program into which she enrolled X, he agreed that such a program could be of advantage to X.
In respect of the maternal grandmother, she gave her view of the 7 June 2012 incident based on what she heard at the trial and the handing down of the verdict. Although she did not witness the incident, she said that this was one incidence of family violence to which she can “bear witness”. She said it was entirely unnecessary and was a result of the actions of the maternal grandmother.
The paternal grandmother said, “At the trial Ms J alleged that Mr Pattison had run across an intersection, jumped onto the bonnet of her car and shouted, “take me to the police station.” Mr Pattison said that he had stood in front of the car because he wanted to see his daughter who was in the car and that Ms J had driven the car into him. Mr Pattison was acquitted of the two charges of ‘getting onto a moving vehicle when not allowed to do so’ and ‘damage to property.’ At the time of handing down of the verdict, the Magistrate noted the particular concern that a child had been in the car.”
The paternal grandmother was negative about the mother. She blamed her for X not seeming “to have had any experience of normal caring interactions between members of the opposite sex.” She made this observation because she said that on one occasion, X became angry and shouted at the paternal grandfather not to touch the paternal grandmother, after he had put his hand on her shoulder and started to stroke her back.
She also said “neither Ms Parry nor her mother provides X with a consistent model of functional communication skills. In my presence, they consistently model anti-social pragmatics.”
Much of the paternal grandmother’s affidavit repeated the claims made by the father against the mother, which cast the mother in a poor light, and highlighted her belief about the superior parenting skills of the father.
The maternal grandmother notified Child Protection Services about concerns for X on 25 January 2013 and 4 February 2014. On 4 February 2014, she was told that the case was closed.
On 23 July 2014, she provided a 6½ page report to Child Protection Services about her concerns of X in the mother’s care. She made the report “after going through her diary in preparation for the Family Court hearing in a couple of months’ time.” She provided it, so that, “if something bad enough for you to investigate happens in the future, you will at least have some background.”
In her affidavit, the paternal grandmother referred to X’s sexualised behaviour doing a striptease on two occasions in late 2014. She was also concerned about excessive masturbation and X mentioning that her “bits” were itchy. She also said in January 2013, X had talked about a “scary night time tongue and nasty night time kisses and had mentioned a man whose name was unfamiliar”.
The concerns of the paternal grandmother, about the risk to X in the maternal grandmother’s care, were based on what the mother had told her about her care of her as a child, and on X having told her she had been hit around the head by her.
I consider that much of the evidence of the paternal grandparents was unhelpful. Their evidence can be given little weight.
It is the Court’s role to make findings on the basis of all the evidence before it. It is not the role of the parties or witnesses to make judgments about factual matters, or to argue for an outcome about an issue to be decided.
Evidence of Ms E (friend of the father’s family) and Ms G (father’s sister)
Both witnesses gave supportive evidence of the close relationship between X and her father. Neither witness described any observed behavioural difficulties of X.
I accept their evidence.
Relevant Law
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides:
In deciding whether or not to make a parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.
A court, in determining what is in a child’s best interests, must consider the primary considerations and the additional considerations set out in s.60CC, informed by s.60B, which set out the objects of Part VII of the Act. Section 60B provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In Korban & Korban,[6] Moore J reviewed considerations made by judges when considering whether equal time is in a child’s best interests:
[6] [2008] FamCA 292.
Best interests & reasonably practicable
77. As for the best interests component, that is to be seen through the relevant considerations discussed, bearing in mind the stated objects and principles. Those matters are markers to the whole range of possible decisions about a child’s best interests and are not directed specifically to the decision about whether a child’s best interests would be served by an equal time arrangement, on the one hand, or something falling short of it, on the other. In other judgments I have reviewed cases over the years, both single instance and appellate, where consideration has been given to children spending equal time between their parents and I see those cases as unaffected by the amendments to the Act from 1 July 2006 [see M & M [2005] FamCA 207 and Handley & Tranter [2006] FamCA 344]. There may be others but the cases reviewed are Jann v Yann (1976) FLC 90-027 at 75,120; Foster v Foster (1977) FLC 90-281 at 76,511; H v H-K (1990) 13 Fam LR 786; Padgen v Padgen (1991) FLC 92-231; Forck v Thomas (1993) 16 Fam LR 516; unreported decision of the Full Court (15 April 1997) in C v B; F v B [2000] FamCA 676; McGlynn v McGlynn, unreported 13 December 2001 per Le Poer Trench J; M v G, unreported 15 July 2003 per Kay J, and H v H (2003) FMCA Fam 41. Without repeating the earlier discussion, the conclusion I reached is this:
‘These decisions do suggest that some careful deliberation is necessary in considering an arrangement whereby children spend their time moving between the households of their separated parents in equal or approximately equal proportions of their time. They also suggest that to be workable and of benefit to the child, desirable environmental factors include compatible parenting values; mutual respect as parents; good parental communication, trust and cooperation; an ability to compromise; geographic proximity between their residences; the age of the child has to be considered and the ability of the child to cope with the arrangement without stress or confusion needs to be taken into account; concrete issues related to upbringing such as manner of education and the like ideally would have been resolved; and there are no destabilising influences such as might be present when one or both parents re-partner. Without these factors, the arrangement may contain the seeds of harm from inconsistencies in influence, activities and life values, all of which have the potential to disorient and destabilise children. The purpose of any arrangement, after all, is to promote their welfare overall and not to satisfy the needs of their parents’.
Although the father has not sought an equal time arrangement, he has sought a shared care arrangement of four nights each week. I consider that the Honourable Moore J’s review is helpful. The considerations referred to, are relevant to a shared care arrangement, including mutual respect as parents, good parental communication, trust and co-operation, ability to compromise and the age of the child.
The father has alleged that there is an unacceptable risk to X of suffering psychological harm in the mother’s care. He has also alleged that X is being exposed to explicit sexual material or being sexually abused in the mother’s care.
Section 4 of the Act defines abuse as follows:
“abuse" , in relation to a child, means:
(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.
The High Court decision of M & M,[8] established the principles about unacceptable risk. The Court must evaluate the nature and degree of risk and whether, with or without safeguards, it is acceptable. The concentration should normally be upon the question of whether there is an unacceptable risk. Risk covers not only physical, but also emotional harm.
[8] (1988) 166 CLR 69.
There is a need to consider the gravity of allegations made and for caution to be exercised. The focus should be upon the question of whether there is an unacceptable risk to the child.
Allegations of family violence have also been made by the father in this matter.
Section 4AB(1) of the Act defines “family violence” to mean “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”. Section 4AB(2) sets out a non-exhaustive list of examples of behaviour that may constitute family violence. Section 4AB(3) defines when a child is “exposed” to family violence, and s.4AB(4) sets out a non-exhaustive list of example situations that may constitute a child being exposed to family violence.
I turn to consider the best interests considerations.
Section 60CC(2)(a)
Section 60CC(2)(a) provides that when considering the best interests of a child, the Court is required to consider, “the benefit to the child of having a meaningful relationship with both of the child’s parents”. This consideration is informed s.60B(1)(a) of the Act, which provides that the best interests of a child are to be 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
I consider that there is benefit to X of continuing to have a meaningful relationship with both parents. Both parents have been involved in her care and she has a loving relationship with both of them. The most recent report of Mr S concluded that “X would benefit from having a life where there is substantial involvement with both parents”. The proposals of the parties will enable this to occur and for both parent to continue to have a meaningful relationship with X.
Section 60CC(2)(b)
Section 60CC(2)(b) provides that when determining the best interests of a child, the Court is required to consider: “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
Pursuant to s.60CC(2A), when applying the considerations set out at ss.60CC(2)(a) and (b) the Court is to “to give greater weight to the consideration set out in paragraph (2)(b).”
The father alleged that X has been exposed to three incidents of family violence. The father said “the origin of this case is in my insistence that X not be exposed to the danger and family violence of Ms Parry’s older brother (Mr T).”
He asserted that X was at risk of family violence or of being exposed to family violence whilst in Mr T’s presence. In his interview with Mr S, the father described Mr T as being “alcoholic and violent” and that he was “doing drugs in front of the kids”. Mr T lived with the mother for a period of three or four months.
The mother said that, at the time of allowing her brother to move into her spare room, she was helping him through a difficult time. He had been the victim of a serious assault in 2010, had become depressed, and his relationship had broken down. The mother said that no physical or psychological harm came to X while he was living in her home.
The father argued that despite a consent order made on 3 March 2014, which restrained the mother from bringing X into contact with her brother, such contact was still ongoing. He said that X still knew Mr Pattison’s name, and asserted that this was indicative of contact between them.
The mother denied that X has been in contact with her brother. She does not believe such an order to be necessary. She consented to it in order to appease the father. She said that the restriction on contact creates difficulties for her and her family during holiday and special day celebrations. She said she would like to be able to attend family gatherings, at which Mr T may be present.
The mother also disputed that X has been exposed to family violence whilst in her or her mother’s care.
In respect of the second incident, the father said that “on 7 June 2012 Ms J attacked me by running into me with her car. X was in the back seat and was forced to watch as her father was driven for several city blocks on the bonnet of the car.”
The father emphasised this incident when trying to demonstrate that the maternal grandmother has exposed X to family violence. He was charged with one count of “injure property” and one count of “get on a moving vehicle when not permitted to do so”. These charges were later dismissed.[9]
[9] Exhibit A2.
The mother said that the incident occurred when her mother returned to the mother’s former rental property to collect some items for her. Her mother was stopped an intersection. When the father saw her, he lay on the bonnet of her car and banged on the window. X was in the car. She said that her mother panicked, as the father refused to get off her car when asked, so she drove to the Hobart police station and requested help. As the mother was not present, no weight can be given to this account.
I am unable to make a conclusive finding about what happened because the father did not give detailed evidence about it and the maternal grandmother has not given evidence. It seemed that both adults behaved inappropriately in X’s presence. The father asserted that he was assaulted with a deadly weapon (namely the car), and was driven for several blocks on its bonnet. He did not explain why he conceded to Mr S that he behaved inappropriately. He was not convicted of the charges. There was no evidence that the maternal grandmother was charged with assault. There was no persuasive evidence about what had occurred.
The father said that the third incident occurred on 20 February 2014, when “the mother came to my home at approximately 8.00pm and aggressively beat on the door. When I answered the door holding X, Ms Parry was aggressive and abusive to me in X’s presence. I asked my mother to take X to the back of the house while I talked to Ms Parry. Eventually Ms Parry was removed from the property by the police. Despite this I changed X (X was getting ready for bed when Ms Parry arrived) and returned her to her mother. X was somewhat traumatised by these events and has often spoken with fear since about police coming to take either her or me away.”
The mother denied that she was aggressive and abusive to the father in X’s presence when she went to his house to collect her on 20 February 2014. She went there accompanied by police. She knocked on the front door and told the father that she was there to collect X. He said that she could not have her and she responded by asking why he would not give her back. She kept asking why he would not give her back and he told her to get out of his property. The paternal grandmother took X away from the door. The father closed the door. The mother knocked on it again until he opened it. She asked him again why he would not give her back. She denied that she was escorted off the property by police during this incident. She said that the father demanded that they remove her because it was his property. He would not hand over X, so she went with them onto the street to discuss getting the Federal Police involved. She willingly left the property with the police. She discussed other options with them, to get X back. The father then came out and handed X over to her.
I accept the mother’s evidence about what occurred and am not persuaded that the mother was abusive during this incident. She was attempting to collect X from the father. I do not consider this amounted to family violence.
The father also alleged that on 20 May 2014, X told him that the maternal grandmother had hit her around the head when she had been naughty at the park, and a family friend had to pull her away.
The mother disputed that X had been hit around the head by her mother. She said that if physical abuse of X by the maternal grandmother was occurring, there would be an obvious sign of it. She also said:
She also tells us that you beat her and that you sleep in the same bed naked and a number of other things which I doubt. It’s just something that she does.
There were no other allegations about any incidents involving the maternal grandmother.
The father asserted that there are many indicators that X may be suffering abuse while in the mother’s care and or in the care of the maternal grandmother. He said that X displays fearful and self-protective behaviour, such as protecting her head with her arms, when she thinks she has done something wrong.
The mother said that X spends time with maternal grandmother on two nights for three/four hours when she is at work on Friday or Saturday nights. The father was informed about this in the communication diary on 19 April 2013 and on 3 June 2013.[10] The mother said that her mother is a retired (occupation omitted) and has raised five children, as a single parent. She has complete confidence in her mother’s capacity to provide her children with a safe and loving environment when she is caring for them. She said that both Y and X enjoy her mother’s company.
[10] Exhibit R2.
The father’s evidence about his concerns of the mother’s parenting was consistent with what he reported to Mr S. He asserted that X has been subjected to abuse and family violence, while in the care of the mother and the maternal grandmother. He also referred to his concern that X is being exposed to certain “persons of concern”, being the mother’s friend Mr I, and her brother, Mr T.
There was no medical evidence in relation to any of the father’s allegations. The father’s explanation was that he did not wish to subject X to full medical examinations. He relied on reports made by the paternal grandmother to Child Protection Services, which were annexed to his affidavit.[11] The reports detail the paternal grandmother’s concerns about X’s behaviour. Child Protection Services investigated a notification made in 2013 and closed the case. There was no evidence of an investigation in 2014.
[11] Father’s Affidavit filed 10 November 2014, annexure J.
Mr S was of the view at the time of his second report (November 2014) that there was no substantial evidence of risk to X at that time.
As evidence of abuse of X, the father annexed a photograph to his affidavit of X with a bruise and a slight cut to her forehead.[12] He conceded that he did not know how X had sustained the injury portrayed.
[12] Father’s Affidavit filed 10 November 2014, annexure K.
On Friday 4 January 2013, the mother wrote in the communication book that “X has a bump on her forehead which she got from tripping over a toy while playing chasings with Y yesterday. It has been assessed by a registered nurse. She is fine and no treatment is required. She is disciplined with two minute time – outs in her room if she fails to cease her inappropriate behaviour after a warning or continues to do it after I have asked her to stop and count to 3.”
The father answered… “thank you for answering one of my questions (Q. 9) I will keep consistency for X by mirroring and supporting your approach. This will provide a good outcome for X. In reference to the nasty bump X has sustained, I have also taken her to a registered nurse today. I would like to know the name and practice/employer’s number of the person you took X to see. This also references back to Q8. I also need to know what name you use for X at these places. When exactly did X sustain this injury and where? Please try to ensure that areas where X is playing running games are clear of trip hazards and that X has clean safe areas for play in general.”
The mother answered on 7 January, “X’s head bump was assessed by a nurse via the (omitted) medical advice line. As you can see, it is a minor bump that requires no treatment. It is perfectly normal for children X’s age to get bumps and scrapes like the one under her arm that she returned home from her visit with you on Friday. It is a normal part of the growing up and learning experience, as I’m sure your experts will understand. Also please understand that you are responsible for X when with you, and you are also responsible for providing for her.”
The father answered “X’s bump was not minor but in fact was only a few pounds of pressure off a fractured skull. I took her to see a health professional who was able to actually look at, touch and properly assess the injury; rather than guess over a phone line. I also photoed the head injury (although it was clearly a few days old) and the minor chafe mark X had under her arm when she was dropped off on Friday. I do note that that has now become a cut (at time of drop-off today). I have not generally bothered mentioning the usual cuts, bruises, and grazes of childhood (like the cut on her leg or the grazes she has had the last two weeks), I do however, think that infections, bumps and injuries that need on going care or that had potential for ongoing effects need to be reported by both of us in an open manner… I will continue to film and photo as much as I can until you stop lying, misrepresenting and making false allegations. I will also continue to ask you questions. I understand that positive facts/evidence and questions often makes those who have something to hide uncomfortable but as your comfort or otherwise has little to do with X, I do not find it relevant and will not be either goaded by or drawn into arguments about your paranoid delusions.
The father did not provide evidence from a “health professional” about this injury. This communication demonstrates the father’s negative attitude towards the mother, and his negative judgments about her parenting of X, resulting in unnecessary conflict.
The father described other behaviours of X that he believed to be indicators of her suffering abuse. This included a change in her style of play. “The interactions between the toys had become almost exclusively violent”, whereas X’s play before separation had been caring and loving. He also said that while X has always been a very physical child, since separation she has become disconcertingly violent, and finds causing pain in others funny.
The father also described X exhibiting some concerning sexual behaviours as reported to Mr S. The father and his parents, who also described similar behaviours, attributed these behaviours to the mother’s care of X.
The father gave examples of X commonly using words such as “fuck”, “asshole” and “cunt” and phrases such as “shut your mouth”, “I can’t take this anymore” and “go away, I don’t have time for you”.
The father also has concerns about the media content which X is exposed to whilst in the mother’s care. He said that this has resulted in her being fixated on ideas about zombies and monsters. He asserted that X has been exposed to age-inappropriate computer games and web-based horror series. X suffers from nightmares, which he believes is a result of this exposure. He said that X will go to extreme lengths to avoid going to sleep, such as biting her nails and fingers, and punching or slapping herself.
The mother’s evidence was that whilst X is in her care or her mother’s care, she watches a maximum of a couple of hours of television. She said that X does not like to sit still for too long, and prefers to be outdoors.
The mother conceded to Mr S that X may have been exposed to some “horror-type material” which was not appropriate, given X’s age. This exposure has been stopped. She said that X never exhibited any signs of being distressed by it. Mr S observed that she was not distressed, when speaking of dragons and flying.
The mother said that X sleeps next to her when in her care, and that she has never noticed her having a nightmare or calling out in her sleep. In her experience, X is a restless sleeper and will sometimes wake up to make sure that there is someone sleeping next to her.
The allegations made about the maternal grandmother are based on past statements made by the mother to the father and the paternal grandmother, and on a statement made by X. I am not persuaded by their evidence that X is at an unacceptable risk of harm in the maternal grandmother’s care.
Mr S observed that X was distractible and very strong minded. He was of the view that this may require some professional intervention. He said “this trajectory is more likely when the parents are in conflict and X is expected to live within two households where she is exposed to different rules and expectations at each household, and there is an inability of the parents to discuss matters, share information and agree on appropriate expectations and management. It will be made worse if there is open conflict between the households.”
The mother acknowledged that X is a very strong willed child and has always engaged in difficult behaviours. She said that it seems that her behaviour is becoming more difficult as she gets older. She has been referred to Dr M, a paediatrician, for assessment. Dr M has referred her to Ms C, who is a psychologist, for assessment of her difficult behaviours.
Whilst other issues were raised by the father and the paternal grandparents regarding some concerning behaviour of X, there was no evidence, expert or otherwise, to persuade me that the behaviour has been caused by the mother’s care of her.
I agree with the comment made by Mr S in his September 2013 report:
there may be a significant difference in their values, beliefs and parenting styles, but it is doubtful, on the limited information available, that either parent would meet the criteria necessary for child protection services to suggest that X would be at significant risk in their care.
There was no independent evidence of indicators of abuse, for example from X’s school at (omitted), or from X's GP or paediatrician.
X has been spending overnight time with the father from March 2014. This time increased to two nights and three days each week in June 2014. She spent day time with him in the presence of the paternal grandparents since December 2012. The father has not been concerned enough about X’s behaviour to have her assessed by a medical professional, even though he raised concerns with Mr S about her behaviour in 2013. Instead, he has blamed and criticised the mother’s care of X.
I am not persuaded that X is at an unacceptable risk of being subjected to or exposed to abuse, neglect, or family violence in the care of the mother or the maternal grandmother.
X needs to be protected from being exposed to conflict between her parents. Mr S’s view about the requirement for intervention has occurred. X has been referred to a psychologist.
I turn now to a consideration of each of the relevant s.60CC(3) factors.
Section 60CC(3)(a)
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Mr S reported that X did not express any view to him about what she wanted. It was clear, both from what she said and the observed interaction with her parents, that she enjoyed being with both her mother and father. X did not express any view to Mr S about what she wanted. From this observation, he concluded that “X would benefit from having a life where there is substantial involvement with both parents”.
X is now five years old. Given her young age and the fact that she has not expressed any clear view, I do not place weight on this sub-paragraph.
Section 60CC(3)(b)
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
X has a close and loving relationship with both of her parents.
X has a close relationship with her paternal grandparents. She spends significant time with the father’s sister and her two daughters. She plays with them regularly and often spends time at their house.
The mother gave evidence that X has a loving and close relationship with the maternal grandmother. She said that she is a very important person in X’s life and always has been. She has a close relationship with her brother Y.
Section 60CC(3)(c)
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The father asserted that, since separation, he has been denied participation in decision making in relation to X. He said that his requests for information about X and any expression of his opinions in relation to her upbringing have been rejected by the mother.
The mother disputed this. She gave evidence that she had notified the father of her intention to enrol X in an early education program, and in Kindergarten, at (omitted) Primary School.[13] He did not afford the same opportunity to her when he enrolled X in Kindergarten at (omitted), without her consent.[14]
[13] See Exhibit R3.
[14] See also Exhibit R3.
The communication book demonstrated that the mother provided information regularly to the father about X. She was constantly required by him to answer his numerous questions about her.
The father gave evidence that the mother forgot to pick X up on Boxing Day 2012. He gave this as an example her not putting X as a priority. There was no detailed evidence about what had occurred.
He also referred to two other occasions when the mother has failed to attend changeover and collect X. The mother’s evidence was that on the first occasion the father refused to deliver X to the maternal grandmother and a close family friend, while she was in Sydney on a work trip, and was scheduled to return home the next day.
On the second occasion, the mother informed the father that she was having transport issues and would have difficulty in attending at the scheduled changeover location. During cross-examination, the father conceded he had notice from the mother on that occasion. I discuss this further on in these Reasons.
Section 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 has fulfilled her responsibilities to maintain X. She supports her from her income from Centrelink and from her employment. Her evidence was that the father currently does not pay any child support to her.
The father asserted that since separation he has voluntarily approached “child support” and set up a direct deduction from his wage. He did not give any details of what amount is paid.
I prefer the mother’s evidence and accept her evidence that the father is not currently paying her any child support.
Section 60CC(3)(d)
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The father proposed that X spends two nights extra each week with him, resulting in X living with him on eight nights per fortnight. This would mean that the time she lives with her mother and Y will reduce by that time.
The mother has been X’s primary carer since her birth and she has been living with her and her brother since then. X has a close relationship with them. She is living in a settled environment in (omitted) in a three bedroom house.
The mother’s proposal will not mean any change in X’s living arrangements. She will spend four nights per fortnight with the father and will be able to continue to have a meaningful relationship with him.
Section 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;
There is no practical difficulty and expense of X spending time with and communicating with each parent.
Section 60CC(3)(f)
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The father emphasised that he and his family have a higher average level of education than the mother. He also told Mr S of his family’s higher education level compared to the education level of the mother’s family.
He did not give any detailed information about his level of education. He said that he has worked since he was 16 years of age. He said that he attended university, but did give any details. He said that he holds qualifications including “(omitted”). He said that he is self-employed and in high demand in his field.
The father asserted that he is “older, more successful, better educated and more mature than the mother”. He criticised her and said “Ms Parry has spent the majority of her life on welfare. She has only a very basic education and qualifications. In Ms Parry’s care X is in a family of lower academic and professional achievement; a family with a two generation history of alcohol dependence; a family over whom there are questions of abuse; a family of dysfunctional relationships. In my care X is in a family of high academic and professional achievement; a family with no history of mental illness or substance abuse; an ethical and diverse family; a family of functional relationships.
The father has the capacity to provide for X’s physical and educational needs. The father and his extended family will no doubt be able to provide X with rich cultural and educational experiences, as she spends time with them regularly.
However, I consider that the father has a limited capacity to provide for X’s emotional needs. He does not have the capacity to promote her relationship with the mother and her family. He has a negative and critical attitude towards the mother.
During cross-examination, the mother agreed that she has suffered from a social phobia disorder in the past. She said that this disorder made her feel afraid, uncomfortable and like the world was out to get her “only occasionally”. She agreed that she had been medicated for this condition in the past. She ceased taking medication over the last few years, after an assessment was made by her psychologist. She last attended her psychologist approximately a year and a half ago.
The father alleged that the mother used cannabis whilst X was in her care. There was no evidence to persuade me that the mother is currently using illicit drugs or that her parenting capacity has been affected.
I consider that she has the capacity to provide for X’s needs, including her emotional and intellectual needs. She has researched a primary school, which will provide X with extra assistance with any learning and developmental difficulties she may encounter. She has made efforts to have X assessed by a paediatrician and psychologist, regarding her behavioural issues.
The mother has the capacity to promote X’s relationship with the father. She told Mr S that as she grew up without a father, she was keen for her to have a relationship with the father.
She was positive about X’s time with her father. She reported to Mr S that his time with X was working well. She reported that X would at times cry because she did not want to leave her, and that she also cried at times when she did not want to leave her father. She reported that “X looks forward to seeing her daddy”.
Section 60CC(3)(g)
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
X has experienced difficulties in school at (omitted). Her 2015 Kindergarten report[15] indicates that she has not reached milestones, such as recognising her name in print, counting to five, recognising and continuing patterns, and certain motor skills such as jumping, balancing or hopping. The report indicates that X has also not met the standard in sustaining attention to complete a variety of tasks.
[15] Mother’s Affidavit filed 28 July 2015, annexure A.
Mr S reported that X’s behaviour suggested to him that she is a child with a very strong mind and will. He reported that, given her temperament, the possibility that she will play off both parents and use their conflict to her advantage, can lead to her having significant behavioural issues in the future.
Mr S noted that both parents will need to address this in their management of her. It would be better to do so together in a congruent fashion, rather than separately.
Section 60CC(3)(h)
if the child is an Aboriginal child or a Torres Strait Islander child:
(i) 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
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This sub-paragraph is not relevant.
Section 60CC(3)(i)
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I consider that the father has an inflexible attitude to the responsibilities of parenthood. He is intent on ensuring that his views are followed. He attempts to manage the mother’s care of X. He is certain that he has a parenting capacity superior to that of the mother and believes that all of X’s behavioural difficulties are caused by her or the maternal grandmother’s care of X. He has not given the mother any credit about her parenting of X. He magnifies the mother’s actions, which he believes demonstrates her deficient parenting. This creates unnecessary conflict between the parents, and is not in X’s best interests.
The issues of X attending school or a medical professional involved conflict because of the father’s attitude.
X was referred to Dr M, paediatrician, for assessment after the mother noticed a gradual increase in her difficult behaviours. Mr S, in his most recent report, also noted that “X continues to demonstrate a single-mindedness and level of distractibility that may require some professional intervention”. Dr M referred X to Ms C, a psychologist, for further assessment. The father had “specific objections to having X assessed by a paediatrician and possibly a child psychologist.” He had “specific objections to the specific paediatrician mentioned.” He insisted that the mother cease all actions.[16]
[16] See Exhibit R3
During cross-examination, he said that he did not tell the paediatrician that he did not give his consent to her to treat X. He had an interview with her and told her that he wanted to be notified of all appointments so he could attend. He told the paediatrician that he did not consent to X to be prescribed “very strong psychoactive drugs.” He said he had not observed any behaviour from X that suggested that she needs medication, as she is just an energetic kid who likes to run around.
An example of the father’s attempts to manage the mother’s care of X and his negative attitude towards her is contained in the communication book. For example, on 31 December 2012, the mother wrote, “X seems to be coping well with the arrangements as they stand at the moment. I’m glad to see that she is happy and adjusting well. You have already been informed of hours X spends with her grandmother.” The mother described what X does at home and how much television she watches. She wrote, “I provided you with the names of her playgroups and educational facilities. She attends Hobart city doctors when she needs to. She has never attended any child care facilities”.
In the father’s response, amongst other comments, he wrote “it was my mother that noticed X was overtired and suggested that while you said when she was put to bed, you do not say when she went to sleep. My mother of course is an expert in the field of child development having had five and worked in the field for over 40 years. My father is also a world recognised authority on the subject with over 45 years’ experience. Hence I tend to take their concerns seriously. I would also note that my completion of (omitted) childcare will make me something of an expert. I’ve explained the purpose of this book and the thoughts behind my questions before (I refer you again to my email). If you still don’t understand and – or refuse to answer my questions (like how many hours of TV including you and Y is X exposed to?) then all I can do is keep asking. This is why I have listed by number. I will simply refer to our unanswered questions by number from now on. One question I have asked before but not numbered (now Q.9) Is; I note X’s new violent tendencys, are you doing anything to discourage this and if so what? I think she needs a united front between parents on discipline is self explanatory. I’m glad you recognise that hostility, obstruction, lies and aggressiveness is counter-productive and look forward to any new attitude you might like to come to the table with…. I note X has had a small cut on her hand for a week. In itself this is of no concern that has now become very infected I see. I’ve done what I can but please with even small cuts and infection can be very bad for young children. Answers to questions 1 to 9 would be a good first step to acting in less hostile manner.
An example of the father’s attitude towards the mother, who has tried to negotiate with him in a pleasant manner, is an email dated 16 September 2014.[17] She wrote, “…(omitted) primary school which has an excellent reputation, a beachfront location, modern buildings, a good catchment area and specialist teachers who can assist X if she requires extra help. She has been attending the playgroup and early learning there and has friends who will be starting there at the same time as her, and she is already familiar with the school. Given X’s behavioural issues I strongly feel that introducing her to the education system earlier rather than later will be very much in her best interest, than rather than waiting until she is older and has missed out on kindergarten, becoming acclimatised to classroom structure and bonding with the children she will be travelling through her education with. She needs to be familiar and comfortable with all with all of this is attending school is compulsory and is not a matter of if, it is a matter of when. Delaying her introduction, particular she needs special attention, will not help her at all. If you need information about (omitted) school and kindergarten I can provide it for you or you can look at up.”
[17] Father’s Affidavit filed 10 November 2014, at 75.
The father responded by email dated 18 September 2014.[18] He wrote “I am not surprised at your desire to abdicate the basic responsibilities of parenting to a school. If X only had you for a parent I would agree that such may be in her best interest. Happily, however, X also has me. Behaviour management is a basic responsibility of parenting and one I am happy to perform. You still have time to meet your responsibility in this regard too. I also believe it is antisocial and bad for children to send them to school with behaviour issues. I have selected the school I have because it is one of the best in the greater Hobart area. Positions are highly sought after which is why I wish to secure the opportunity early. Do you object providing X with as many opportunities as possible? The school is also close to both our workplaces (closer to yours than mine). I believe it may be better for all concerned because school that is convenient for both of us rather than creating conflict”.
[18] Father’s Affidavit filed 10 November 2014, at 75.
The father gave evidence that after the dispute between the parties in February 2014, (discussed later on in these Reasons) the mother did not attend at changeovers for the next three scheduled occasions. Whilst she was concerned about him retaining X again, I consider that nevertheless she should have made X available.
The father gave many examples of what he believed was indicative of the mother’s poor attitude to X. For example, he said that she lacks engagement with her children, and often abandons X to the television for many hours at a time. The mother disputed this, stating that X finds it hard to sit still for very long, and prefers to be outdoors.
He described incidents when he believed that X was influenced by the mother, by denigrating him in her presence. The mother denied this. Rather than being prepared to consider alternative explanations for X’s behaviour, such as being exposed to arguments and conflict between her parents, he blamed the mother.
Apart from not making X available to spend time with the father, as indicated above, I consider that the mother has, overall, demonstrated a responsible attitude to the responsibilities of parenthood. She has tried to address X’s behavioural problems by taking her to her GP and paediatrician. She tried to enrol her in (omitted) Primary school because the school has a good team of professionals, who can assist X with her developmental issues. She has worked hard to earn an income to support X. Whilst X has been exposed to inappropriate media in her care, she has ensured this has not continued.
Sections 60CC (3)(j) and (k)
(j) any family violence involving the child or a member of the child’s family;
(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:
(i) 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;
I have already discussed the allegations of abuse and family violence by members of the mother’s family. I have already referred to the text messages sent by the father to the mother in June 2012.
I accept the mother’s evidence that the text messages sent to her in June 2012 and the father’s behaviour at that time was sufficient to cause her reasonably to be apprehensive about her personal wellbeing or safety and that of the children.
An interim family violence order was made against the father in favour of the mother, X and Y on 20 June 2012.
The parties gave conflicting evidence about why a final family violence order (“FVO”) was not made after the hearing before a magistrate. The father said that the mother was forced to abandon her application, due to a lack of evidence. The mother said that she negotiated with the father’s lawyer to withdraw her application on the basis that the father would be subjected to the same conditions as a FVO. This was done so that he could maintain a clear police record in order to obtain a (omitted) in childcare. There was insufficient testing of the evidence to make a finding about why a final order was not made.
Section 60CC(3)(l)
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
This is a final hearing. It is preferable to make orders less likely to lead to the institution of further proceedings in relation to X and for her parents to co-operate in respect of her parenting.
Section 60CC(3)(m)
any other fact or circumstance that the court thinks is relevant.
There is nothing further, which I consider relevant.
Parental Responsibility
Pursuant to s.61DA(2) of the Act, the presumption contained in s.61DA(1) 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.
The presumption of equal shared parental responsibility does not apply in this matter, as there are reasonable grounds to believe that family violence has occurred.
An order for equal shared parental responsibility for the children requires consultation by the parents in relation to any relevant major long-term issue and requires genuine efforts to come to a joint decision.[19]
[19] Section 65DAC
“Major long-term issues” is defined in s.4(1) as follows:
…issues about the care, welfare and development of the child of a long term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s arrangements that make it significantly more difficult for the child to spend with a parent…
If the parties are incapable of making joint decisions, consulting and attempting to reach agreement in order to do so, it is unlikely to be in the best interests of the child to make an order for equal shared parental responsibility.
An order for sole responsibility in favour of a party means that the other party has no rights, responsibilities or authority in respect of major long-term issues for the children, save as expressly ordered.
The events around the changeover on 17 February 2014 provide evidence of the parties’ inability to co-operate about X and the unnecessary conflict, which occurred as a result. I turn to discuss these events. I have already discussed this to some extent, in the context of an allegation made by the father about family violence.
The father annexed a series of text messages to his affidavit, in an attempt to demonstrate the mother in a poor light, by failing to collect X until 20 February.[20] He said that the mother “refused” to attend changeover on that day to collect X. When cross-examined, he conceded that she gave him notice that she was likely to have difficulty in getting to the changeover point, due to transport issues. He was also aware that during the previous week, she had transport issues, when he and his mother had driven to the mother’s house to collect X.
[20] Father’s Affidavit filed 10 November 2014, at 21-49.
Due to the mother not attending the changeover on 17 February, the father took X home with him. Over the next two days, he indicated that she could pick her up. She was unable to collect X, due to transport issues. He made no attempt to return X to her. He would not meet her in town.
On 20 February at 6:42 pm, the mother started asking for his address at (omitted). She indicated that she was coming to collect X. He told her that his offer for her to collect X was made on the previous day and that she should wait until the following day to collect her. He would not give her the address.
The father wrote at 7:37 pm, “the OFFER to come and get X was made yesterday and the day before on the basis X asked after you. She has not today and when asked has been very clear she wishes to stay here. If you feel I have made a demand of you I am sorry. Let me correct the misunderstanding, I do not want you to come and get X. I do not believe it is in her interests. I will be at the library tomorrow at 5 as per orders. Now please stop messaging me.”
The mother then went to his home in (omitted) to collect X. The police attended to assist.
The father came out of the house to hand over X to the mother. This occurred after the mother had knocked on the door on several occasions and his refusal to hand X over. He then alleged that this was an incident of family violence.
This incident is an example of the lack of a parental alliance, which would enable the parties to make joint decisions about X’s long-term interests. The relationship between them is acrimonious. They have significant problems communicating.
Although, the mother believed that in recent times the situation between them has been somewhat more settled, their evidence indicated that they find it extremely difficult to agree on matters relating to X. The examples of communication between them reflect a high propensity for argument, and have an antagonistic tone.[21] Their inability to make a decision jointly about X was demonstrated by the mother’s request to enrol X in childcare, an early learning program and (omitted) Primary School.
[21] See Exhibit R2 and R3.
The father refused the mother’s request to enrol X in child care for one day each week, to enable her to work an extra day. He objected to this because he believed that he should be afforded the first opportunity to care for X.
The father said, “I refused to agree to X attending childcare because of a long held belief … throughout this case and throughout all my documents, that X should… have the opportunity to be cared for by one of her parents primarily when the other one can’t care for her. I refused to give my consent to childcare… My preference was that… I should be given the opportunity to care for X while you’re at work. That was my preference. If you were unwilling to come at that… then I was willing to consider… her being put in childcare rather than cared for by the maternal grandmother because I have concerns about X being abused while in the care of maternal grandmother... That X is getting abused, physically abused, in the care of your mother…”
The father asserted that in early 2014, the mother informed him of her intention to enrol X in an early learning program at (omitted) Primary School. He said that he clearly expressed his objection to this to her and to her legal representative at the time. He found out that she had unilaterally enrolled X in the early learning program. This was after he was informed that she had also been enrolled in (omitted) Primary School for Kindergarten, to which he also objected.
The father did not agree to X’s enrolment in an early learning program because “I object to all of the early learning programs. I believe they are severely detrimental to child development and I believe the international statistics and educational professionals are generally in agreement on that and I intend to have my father as a world recognised (omitted) expert to testify to that… I have equal shared parental responsibility and specifically prohibited X’s enrolment within that program.”
I asked the father why it would be detrimental to X to attend a program up to two hours once per week with the mother. He answered “I object to that because the international statistics show on aggregate that, essentially, the later children start formal schooling and formal school type activities i.e., classroom activities, being sat down, either with a parent or not, in front of a teacher doing things, the worse the long-term results in terms of things like reading and so on and so forth are… Equal shared parental responsibility, I said no… The fact is if we don’t agree on something, then it should not happen. We should have to reach agreement.” This opinion was similar to the evidence given by the paternal grandfather and based on a misunderstanding about what the program involved.
The father’s objections to (omitted) Primary School were as follows:
“firstly, I don’t believe the area is particularly safe. In fact, the week before you enrolled at (omitted) Primary there was a warning from Tas police about a couple of men cruising the area in a van trying to get kids to get into the van, surrounded by bushes, so on and so forth. That makes me nervous. It’s very difficult for me to get to. It’s not in any way a midpoint between us, and it’s relatively low to (omitted) on the school rankings, at least.”
The father’s preference was for X to be enrolled at (omitted) Primary School, which provides a ‘mid-point’ between the residences of the two parents, and is a superior school. X has two cousins attending there. However, on 10 March 2015, he enrolled X at (omitted) Primary School (“(omitted)”) for Kindergarten when it became clear to him that if he did not, she would be attending (omitted) Primary.
When cross-examined, the father explained that he enrolled X at (omitted) rather than (omitted) Primary, due to catchment area requirements. He said that he would have needed the mother’s consent to enrol her at (omitted). He did not need her consent to enrol X at (omitted) because he was living within the required catchment area.
The reason he gave for enrolling her there was that if X continued to attend (omitted) Primary, she would only attend for two of the three days of Kindergarten as she is only in the mother’s care on two of those days. He enrolled her on the three days when she is in his care, so that she could attend on the three days. He said that X is familiar with the (omitted) grounds, and her attendance there is more convenient for him, as it is close to his home.
The father therefore required the mother to obtain his consent to a school for X. Yet, he enrolled X in (omitted) without her consent.
The mother gave evidence that X has attended an early learning program at (omitted) Primary School since 2014. She said that X enjoys attending the program, and, as a result, is now quite familiar with the school.
The mother chose (omitted) Primary School for X's Kindergarten because the time when she would be attending would be divided equally between her and the father. She did not consider that transport would be a problem for the father because he has a car.
The mother said that it was already clear to her at the time of researching (omitted) Primary School that X was having developmental issues and failing to meet milestones. She said that (omitted) school has a good team of professionals who can assist her with that. Another reason she chose (omitted) Primary School was because X was already familiar with the school after attending the early learning program there. X has made friends from the program, who are also attending Kindergarten there. She believed this would make commencing school a less daunting prospect for X.
The mother said that she enrolled X at (omitted) Primary School on the basis that if the father did not consent, she would withdraw the enrolment, which she ultimately did. The father gave her two days’ notice before X was due to commence (omitted). She said that at (omitted) all X’s attendance days are on days that the father has care of her. She therefore has no involvement in the daily school routine, apart from contacting the Principal and teachers. It is not easy for her to get to the school, as she does not drive and she lives in (omitted).
She said that due to work commitments and transport issues, it would be very difficult for her to facilitate school drop-off or pick-up on Fridays, which was suggested by the father to enable her to be involved.
It was noted by Mr S that it will be important for the parents to work together to consistently manage X’s temperament and behavioural issues. During the hearing, I ordered that both parties complete a post-separation parenting program. I indicated that I had concerns about making an order for equal shared parental responsibility, due to the inability of the parties to communicate and the conflict between them. I asked for further submissions about this when I indicated that I was considering making an order for sole parental responsibility for one parent.
After this request, the father submitted that he should have sole parental responsibility and primary care for X because, he asserted that the evidence presented to the Court strongly supports the argument that the paternal relationship is more beneficial to X. He stated that evidence presented by the mother strongly suggests that X’s relationship with her mother is difficult and less beneficial, if not detrimental. He argued that the evidence reflects that X’s health, education and development have suffered since she has been in the primary care of the mother, and that it would be highly inconsistent with the protection of X from harm, should the mother be given sole parental responsibility.
The mother submitted that she should have sole parental responsibility for X. She recognised the relationship between X and the paternal family and noted that she understood that X has a right to have a relationship with them. The mother submitted that while she has endeavoured to respect the father’s parental rights and keep him informed of important issues for X, he repeatedly blocks her attempts to address such issues with no negotiation. She referred to the father intervening to prevent X’s assessment by specialist professionals in relation to her behavioural difficulties.
In Lansa & Clovelly, Murphy J said that:
… circumstances of pervasive, and apparently intractable, conflict can point to the process of consultation and endeavour to reach agreement…[22]
[22] [2010] FamCA 80, at para 153.
In Wheedon & Gomer,[23] the Full Court of the Family Court, in dismissing an appeal by the father against an order of sole parental responsibility to the mother, supported the trial judge’s findings,
… of the inability of the parents even to communicate about, let alone resolve, issues concerning the long-term care, welfare and development of the children. Those issues included the school or schools the children should attend; and whether the child D has developmental or learning delays and how they might be properly addressed.[24]
[23] [2014] FamCAFC 141.
[24] Ibid, at para 33.
The Full Court supported the trial judge’s view that:
No evidence was offered by the father of what he would do to resolve the issues. No evidence could be offered, because he cannot resolve the issues with the mother. The mother cannot resolve the issues with the father.[25]
[25] Ibid, at para 35.
I am of the view that the parties would be unable to comply with the requirement, pursuant to s.65DAC(3) of the Act, to consult and make a genuine effort to come to a joint decision about major long-term issues affecting X. I am of the view that the parties lack any kind of parental alliance or mutual trust. I am not satisfied that they are capable of making joint decisions about X’s long-term interests.
I consider that such an order would lead to further conflict, which is not in X’s best interests. She needs to be protected from further conflict.
In my view, a sole responsibility order is in X’s best interests and the parent with whom she will be primarily living should have that responsibility with a requirement to make appropriate notifications to the other parent.
Live with and Spend Time
The mother has been X’s primary carer since her birth. I am of the view that it is in her best interests an order be made that she continue to live with the mother. X is a young child, who has a close and loving relationship with her mother. I consider that it is better for her to have a home base living with her mother and brother. The mother has a better capacity than the father to promote X’s relationship with the other parent.
It is not in X’s best interests to live in an equal time arrangement. The parties have an acrimonious relationship. They have an inability to communicate. There is a lack of any parental alliance. The schooling and the medical issues are examples. As X becomes older, she will have school activities and extra-curricular activities. I consider that an increase in X’s time with the father will only further compound the conflict and issues between the parties. There needs to be minimal opportunities for confusion and misinterpretation, as recommended by Mr S.
Equal time is not reasonably practicable, as the parties do not have the capacity to implement such an arrangement.
I consider that it is in X’s best interests to spend substantial and significant time with each parent. Such time involves time during the week, on weekends and during holidays and on special days. This time enables a parent to be involved in the child’s daily routine and on occasions of special significance to the child and parent.
I consider that it is in X’s best interests to live with the father on two nights each week. I am not persuaded that time on four nights with him is in her best interests. Such time would need a very good parental alliance. The parties do not have such a relationship.
The father sought time from each Sunday until Thursday. Such time would mean that X will not spend a full weekend with her mother and brother.
I intend to order that each alternate week X spend time with the father from 10:00 am Sunday until 5:30pm Tuesday, and each alternate Monday from 10:00 am, or after school when she attends full-time school, until 5:30 pm Wednesday. This will give X time on weekends and during the week with each parent.
In respect of special days, I consider that X should share Christmas and special days with her parents. I consider that spending time with both parents on her birthday, on Christmas Day, and Easter Sunday, rather than alternating the days each year, is in her best interests. Neither party sought orders for school holiday time, so the time referred to above will continue during school holiday time, unless otherwise agreed.
I consider that the changeover for time should continue to occur at the Hobart lending library so that it occurs in a public place.
Father’s proposal to have first option to care for X
The father proposed that in the event that the mother is unable to care for X periods over three hours for any reason, the father be given first opportunity to care for her. If the period of care by the father should be later than X’s bedtime (as noted by the mother) change over should occur the next morning at 10:00am.
The mother told Mr S that it would not be practicable or beneficial for X to be in the care of the father while she is at work. During those times, X is with her older brother in the care of the maternal grandmother. This provides X time with her brother and maternal grandmother.
Mr S noted that such an order would interfere with the block time X has with her mother. This would require an increased number of transitions and would require a reasonable level of information exchange and mutual cooperation. Due to the lack of parental alliance and co-operation, I consider that this will increase the conflict between the parties. I agree with Mr S that this is impracticable and unrealistic.
Name Change
The father proposed that X’s name be changed from X. He proposed changes to X; X; X or X, as agreed by the parties.
There was little evidence about this issue. There was no cross- examination or submissions made.
In his affidavit, the father said that the parties had agreed on Pattison as a surname before conception of X. He said that the use of Parry as a surname was a surprise and a disappointment to him. The father did not give any evidence about why it was in the best interests of X to change her surname to a surname not including her mother’s surname of Parry and X’s registered surname.
The mother told Mr S that she could see no reason to have X’s name on her birth certificate changed. She told him that her surname was agreed at the time it was registered.
Mr S said that “there is no reason why X’s name should not reflect her parentage. However, if the name was agreed at the time of registration, there appears less reason to change it at this time.”
There is insufficient evidence to persuade me that X’s surname should be changed.
Restraints
The father sought orders that the mother be restrained from bringing Mr T into contact with X, that she be restrained from bringing Mr I into contact with X and that she be restrained from leaving X in the unsupervised care of the maternal grandmother.
The maternal grandmother has been caring for X and her brother, Y, for many years when the mother is at work. She has a close relationship with X. She assists the mother in transporting X. I have found that there is no evidence which has persuaded me that X is at risk of harm in her care. I will not make the restraint order sought by the father.
The mother acknowledged to Mr S that her brother, Mr T, could pose a risk to X. She said that she had no intention of leaving her unattended in his care, but it is difficult at family functions to have an order that she be restrained from bringing him into contact with X.
She did not see a risk of harm to her from Mr I, but agreed not to leave X unattended in his care either.
I consider that an order that the mother not leave X in the unsupervised care of her brother and Mr I is appropriate in the circumstances. Whilst there is no evidence of any specific instances of risk of harm to X from these men, the mother has acknowledged that her brother could pose a risk to X. She agreed to an order in respect of Mr I.
In respect of the parties, I consider that a mutual non-denigration order should be made to ensure that neither party criticises the other in the presence or hearing of X.
I consider that the parenting arrangements will enable X to have a meaningful relationship with both her parents.
I certify that the preceding two hundred and sixty-five (265) paragraphs are a true copy of the reasons for judgment of Judge Baker
Associate:
Date: 3 December 2015
[7] Ibid at 77.
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