Pearson and Kelman
[2012] FMCAfam 365
•4 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PEARSON & KELMAN | [2012] FMCAfam 365 |
| FAMILY LAW – Parenting – significant parental dispute over a decade as to parental responsibility – consideration as to whether equal shared parental responsibility as previously ordered was in the best interests of the child – serious concerns expressed by family report writer as to effects upon the child of continued dispute – determination that presumption of equal parental responsibility should be rebutted – application of considerations in section 60CC to determine with whom child should live and time to be spent with the other parent – in the circumstances of a fresh determination of parenting orders dismissal of outstanding contravention application determined to be in the best interests of the child. |
| Family Law Act 1975 (Cth), ss.60B(1) and (2), 60CA, 60CC(2) and (3), 61B, 61C(2), 61D(1) and (2), 61DA(2) and (4), 65DAA(1) and (2), 65DAC, 65DAE |
| Lansa & Clovelly [2010] FamCA 80 AIF v AMS (1999) 199 CLR 160 |
| Applicant: | MR PEARSON |
| Respondent: | MS KELMAN |
| File Number: | CSC 141 of 2008 |
| Judgment of: | Coker FM |
| Hearing dates: | 27-29 February 2012 |
| Date of Last Submission: | 29 February 2012 |
| Delivered at: | Cairns |
| Delivered on: | 4 May 2012 |
REPRESENTATION
| Applicant: | Self-represented |
| Respondent: | Self-represented |
| Counsel for the Independent Children’s Lawyer: | Ms MsArdle |
| Independent Children’s Lawyer: | Cope Family Law |
ORDERS
That all previous orders be discharged.
Parental Responsibility
Except as otherwise stated, the Mother is to have sole parental responsibility for the major long term issues of the child [X] born [in] 2002 (“the child”) including but not limited to:
(a)his education (both current and future);
(b)his religious and cultural upbringing;
(c)his health;
(d)his name;
(e)changes to his living arrangements that make it significantly more difficult for the child to spend time with each parent.
The Mother is to advise the Father in writing at least 21 days prior to making any long term decision to provide the Father the opportunity to consider the decision and provide any response in writing. The final decision will be that of the Mother.
Notwithstanding the provisions of Orders 2 and 3:
(a)The Mother will be responsible for the daily care, welfare and development of the child when he is living with her; and
(b)The Father will be responsible for the daily care, welfare and development of the child when he is living with him.
Living Arrangements
The child live with the Mother.
The child spend time with Father as agreed between the parties but failing any agreement as follows:
(a)Each alternate weekend from after school on Friday to before school on Monday, such weekend to include any public holiday or student free day immediately preceding or following that weekend so that if the Friday immediately preceding the weekend is a public holiday or a student free day then the time spent by the child with the Father shall commence after school on Thursday of that weekend and if the Monday immediately following the weekend is a public holiday or a student free day then the time spent by the child with the Father will conclude before school on Tuesday of that weekend or at 8am if the Tuesday is not a school day;
(b)For one half of all gazetted school holidays with the first half in each odd numbered years and the second half in each even numbered years; and
(c)the whole of Father’s Day, but should that day not coincide with periods when the child will be spending time with the Father pursuant to this Order, then the alternate weekend period referred to in a. hereof will be swapped so that the child will spend the weekend immediately preceding Father’s Day with the mother so that he may spend the weekend of Father’s Day with the Father.
For the purposes of defining the first and second half of gazetted school holiday periods for the purposes of Order 6(b) hereof the following apply:
(a)In the event of the Easter school holiday period being separate from the Easter public holiday period the following will apply:
(i)The first half of the Easter public holiday period will be from 3pm on Thursday preceding Good Friday to 6pm Easter Saturday;
(ii)The second half of the Easter public holiday period shall be from 6pm on Easter Saturday to 6pm on Easter Monday;
(iii)The first half of the Easter school holiday period will be from 5pm on Friday at the commencement of that period to 6pm on the following Wednesday; and
(iv)The second half of the Easter school holiday period will be from 6pm on the Wednesday of the school holiday period to 6pm on the Sunday of that period immediately preceding the recommencement of school.
(b)In the event that the Easter school holiday period includes the Easter public holiday period the following will apply:
(i)The first half of the gazetted Easter school holiday period is 5pm on the Thursday preceding Good Friday until 6pm on the following Tuesday; and
(ii)The second half of the gazetted Easter school holiday period is from 6pm Tuesday following the Easter public holidays to 6pm on Sunday preceding the recommencement of school.
(c)The first half of a gazetted June/July or September/October school holiday period will be from after school on the Friday which follows or is the last day of school to 6pm on the Saturday of the middle weekend of such holiday period.
(d)the second half of a gazetted June/July or September/October school holiday period commences from 6pm on the Saturday of the middle weekend of the school holiday period until 6pm on the Sunday preceding the recommencement of school.
(e)The first half of the gazetted Christmas school holiday period commences after school on the Friday following or the Friday on which school concludes until 6pm on the Saturday falling 22 days later.
(f)The second half of the gazetted Christmas school holiday period commences at 6pm on the Saturday in the middle weekend of the Christmas school holiday period until 6pm on the Sunday immediately preceding the recommencement of school.
Additional time with the Mother
Notwithstanding Order 6 hereof, the child will spend time with the Mother as follows:
(a)the whole of Mother’s Day, but should that day not coincide with periods when the child will be spending time with the Mother pursuant to this Order, then the alternate weekend period referred to in Order 6(a) hereof will be swapped so that the child will spend the weekend immediately preceding Mother’s Day with the Father so that he may spend the weekend of Mother’s Day with the Mother.
Communication Arrangements
The child will communicate with the Father at such times as the child reasonably requests to do so, but otherwise each Wednesday between 6.30pm and 7.30pm with the mother to:
(a)Ensure the child is available to receive the call and the phone is charged;
(b)Arrange for the child to telephone the Father on the following evening if for any reason he is not available to take the call from the Father; and
(c)Ensure the child has privacy during the conversation;
And the father is to:
(d)Provide the child with a prepaid mobile telephone and keep the phone in credit to the sum of $30 to facilitate the call.
The child will communicate with each parent during holiday periods at such times as the child reasonably requests to do so, but otherwise each Wednesday between 6.30pm and 7.30pm with the parent with whom the child is spending time to make arrangements for the call to be made to the other parent.
Changeover arrangements
For the purpose of changeover, all changeovers are to occur at the child’s school if changeover occurs on a school day and at the [M] Shopping Plaza if it occurs on a non-school day.
Exchange of Information and specific issues
That the Mother and Father will by written communication:
(a)keep the other parent informed at all times of their residential address and landline contact telephone number and provide any change in writing within 7 days of such change;
(b)The mother shall keep the father informed of the names and addresses of any treating Medical or other health practitioners that treat the child and authorise that practitioner to provide the father with information that they are lawfully able to provide about the child;
(c)The mother shall inform the father within seven (7) days of any medical condition, or illness suffered by the child. This order authorises any treating medical practitioner to release the child’s medical information to the father.
(d)In the event that the child has a medical emergency in the care of the father he will inform the mother immediately of the child’s attendance at a doctor or medical facility. This order authorises any treating medical practitioner to release the child’s medical information to the mother.
The Parents authorise, by this order, the Schools attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of School reports, Photographs, certificates and Awards obtained by the child (at the cost of the respective parent).
During the time the child is with either parent that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
Dispute Resolution and further applications
The process to be used for resolving disputes about the terms of operations of these orders shall be as follows:
(a)They shall consult with a Family dispute resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
(b)They shall pay the costs of the Family Dispute Resolution Practitioner equally;
(c)In the event that they cannot agree on a Family dispute resolution Practitioner, the mother shall nominate three practitioners and advise in writing details of their fees, experience and availability;
(d)The father shall choose one of the listed practitioners within 7 days of receipt of the list; and
(e)If he fails to choose then the mother may choose.
Before an application is made to a Court for a variation of these orders to take into account the changing needs of the child, each party is to take the following steps;
(a)Comply with Order 15 hereof; and
(b)Give at least 28 days notice to the other party of the details of Orders they will be seeking in the application.
The parents will each attend upon a psychologist for individual therapeutic support and shall continue to attend as recommended by their therapist. Each party has leave to provide to their therapist a copy of the report of Mr P dated 13 December 2011.
The parents shall do all such acts and things to ensure that the child attends on a psychologist for therapy and in order to facilitate this the following orders shall apply:
(a)The parents shall sign all such documents and do all such acts and things and use their best endeavours to obtain a mental health care plan for the child from his General Practitioner. For the purposes of same the mother has leave to provide a copy of the report of Mr P dated 13 December 2011 to the child’s GP.
(b)The mother shall engage the child’s therapist as recommended by the GP and shall ensure that it is a different therapist from her own.
(c)The mother has leave to provide a copy of the report of Mr P dated 13 December 2011 to the child’s therapist.
(d)Both parents will engage in the child’s therapy as requested by the child’s therapist.
(e)The parents will share equally in the cost of the child’s therapy.
(f)The child shall continue to attend as recommended by his therapist.
(g)The child attend upon the therapist and any notes or reports of the counsellor will remain confidential from the parties and will not be obtainable by way of subpoena unless further ordered by the Court.
That all outstanding applications including Contravention proceedings be otherwise dismissed.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Pearson & Kelman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
CSC 141 of 2008
| MR PEARSON |
Applicant
And
| MS KELMAN |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to orders sought with regard to the parenting of the child, [X]. [X] was born [in] 2002, and is therefore now 10 years of age. He is the child of the relationship, albeit a very brief relationship, between Mr Pearson, whom I shall refer to as “the father”, and Ms Kelman, formerly Ms Kelman, whom I shall to as the mother.
The proceedings have had the most checkered of histories. It appears clear from a quick perusal of the file that the first orders that were made in relation to the child were made by me on 6 December 2002. At that time, [X] was only 11 months old. Subsequently, orders were made in relation to various matters, including variations of orders, as well as other clarification type applications, on 4 February 2004, 7 December 2005, 30 June 2008, 5 October 2009, 8 October 2009, 12 April 2011 and 9 August 2011.
As that brief history clearly explains, this matter has had a history of contention between the parties, which has remained unabated since this little boy was but a babe in arms. The situation continues.
On 7 March 2011, the father filed an application in which he sought final orders but, in fact, they were to all intents and purposes, really further points of clarification. The father sought orders with regard to arrangements in relation to the 2011 Easter school holiday period, it not following the plan that had been in place with regard to school holidays in 2002, as well as seeking orders in relation to arrangements with regard to collection and return of the child, or perhaps more specifically, variation of previous orders that had been made with regard to collection and return, and, finally, sought that there should be an order specifically relating to the child being able to participate in instrumental music classes.
At about the same time that the father filed that application, he filed a contravention application detailing 15 counts of what he said were breaches of the previous orders that had been made in relation to parenting. They related almost entirely to issues with regard to what the father said were refusals on the part of the mother to make the child available to the father for the purposes of spending time with him or related to issues in relation to the failure by the mother to provide information as to the child’s attendance with medical practitioners or in relation to issues with regard to educational decisions, including those relating to changes of school.
One further complaint related to a failure on the part of the mother, it was alleged, to fully comply with previous directions given in relation to the issue of a passport.
The father then filed on 29 August 2011, an amended application seeking orders in relation to the parenting of the child and those orders were of a comprehensive nature. They were repeated in the case outline filed on the part of the father on 21 February 2012.
Those orders, in fact, had two alternative arrangements in relation to them, the first relating to the father’s first preference, which was to the effect that the child should live with him and that he should be responsible for decisions to be made in relation to the parenting of the child and, in the alternative, that there should be equal shared parental responsibility and equal time on a week about basis spent by [X] with each of his parents. Options (a) and (b) were in terms as shown in Annexure 1 to these reasons.
The mother filed a response in relation to these proceedings, initially on 7 October 2011, there being various delays in relation to the filing of material by the father and then, subsequently, by the mother. The orders that she sought, at least at that time, could be summarised as follows:
·The father’s application for contravention be dismissed.
·The father’s application for residence be dismissed.
·The father’s application for shared residence be dismissed.
·That there be further investigation in relation to the wants, needs and attachments of the child, and that specific consideration be given to the child’s wishes and views in relation to arrangements.
·That arrangements in relation to time to be spent by the father with the child to be varied and reduced so that it includes one weekend per month and block holiday periods pursuant to earlier orders.
·That additional contact be between the father and the child as nominated by the child.
·That the father be injuncted from attending at the child’s home or school randomly and that the father attend counselling in relation to various parenting issues.
·That the mother be informed by the child himself when he wishes to spend time with the father.
·That the father provide the child with a mobile telephone.
Various amendments were then proposed by the mother in relation to the proceedings that were before the Court, and in particular it would appear that the specific amendment that was sought by the mother in that regard was that there be a declaration to the effect that the father was a vexatious litigant and that he should be precluded from bringing further proceedings before the Court.
As is obvious from the positions outlined here, the parties, notwithstanding the passing of nine or more years since orders were first made in relation to the parenting of [X], have been unable to resolve virtually any of the issues that were in dispute between them at the time that he was less than one year of age, and have continued during the ensuing years to dispute many issues in relation to parenting. Each has taken a very firm view that it is the other who is primarily, if not exclusively, responsible for the difficulties that they experience in their dealings with each other, but more particularly, as [X] has grown, each lays the blame for any difficulties that the child is experiencing and, unfortunately, the report writer addresses a number of issues of concern for the child, including stress and upheaval in his life, as the result of the actions of the other parent.
Understandably, therefore, an independent children's lawyer was appointed in relation to this matter, to deal as best it could be done with issues in relation to providing independent evidence as to the wishes of the child and an assessment of each parent’s relevant capacity to provide for the needs and best interests of the child. In that regard, the independent children's lawyer has facilitated the preparation of a family report, to which I briefly made reference before, and also arranged the issue of various subpoenas, so as to obtain information in relation to the child, including, particularly, independent information relating to the child’s educational progress and development, as well as issues in relation to the child’s medical circumstances.
At the commencement of the hearing, counsel for the independent children's lawyer indicated that the position of the independent children's lawyer was, to all intents and purposes, to suggest that, subject to the evidence that may fall in relation to the proceedings, the basic arrangements that were currently in place should remain unchanged.
There may, of course, be need for some consolidation of the many previous orders that I have referred to into one comprehensive order, but that otherwise it was seen as appropriate that there should be arrangements put in place which ensured that there were specific orders with particularity, addressing matters in relation to responsibility for decisions to be made in relation to the parenting of the child, and also orders which specifically delineated each parent’s time to be spent with the child, and went even so far as to refer to arrangements in relation to attendance at extracurricular activities, as well as school and educational activities.
It was, however, noted that the position of the independent children's lawyer was not firmly entrenched and that, dependent upon how evidence might fall in relation to the matter, a revised position in respect to the proceedings might eventually be sought.
In fact, at the conclusion of evidence in relation to this matter, the independent children's lawyer sought a brief opportunity to discuss issues with counsel and, prior to the commencement of submissions on the part of all parties in relation to the proceedings, a final proposal was made available to the Court on the part of the independent children's lawyer outlining orders (1) through (23) of orders that were proposed in relation to the matter.
In particular, it should be noted that those orders had varied from the previous stance taken in relation to the proceedings in that it was then proposed that the mother should be the party having sole parental responsibility in relation to decisions to be made with regard to the long-term care, welfare and development of the child, [X]. The orders that were sought by the Independent Children's Lawyer were as follows:
1.That all previous orders be discharged.
Parental Responsibility
2.Except as otherwise stated, the Mother is to have sole parental responsibility for the major long term issues of the child [X] born [in] 2002 (“the child”) including but not limited to:
a.his education (both current and future);
b.his religious and cultural upbringing;
c.his health;
d.his name;
e.changes to his living arrangements that make it significantly more difficult for the child to spend time with each parent.
3.The mother is to advise the father in writing at least 21 days prior to making any long term decision to provide the father the opportunity to consider the decision and provide any response in writing. The final decision will be that of the mother.
4.Notwithstanding the provisions of Orders 2 and 3
a.The Mother will be responsible for the daily care, welfare and development of the child when he is living with her; and
b.The Father will be responsible for the daily care, welfare and development of the child when he is living with him.
Living Arrangements.
5.The child live with the Mother.
6.The child spend time with Father as agreed between the parties but failing any agreement as follows:
a.Each alternate weekend from after school on Friday to before school on Monday, such weekend to include any public holiday or student free day immediately preceding or following that weekend so that if the Friday immediately preceding the weekend is a public holiday or a student free day then the time spent by the child with the Father shall commence after school on Thursday of that weekend and if the Monday immediately following the weekend is a public holiday or a student free day when the time spend by the child with the Father will conclude before school on Tuesday of that weekend or at 8 am if the Tuesday is not a school day;
b.For one half of all gazetted school holidays with the first half in each odd numbered years and the second half in each even numbered years; and
c.the whole of Father’s Day, but should that day not coincide with periods when the child will be spending time with the Father pursuant to this Order, then the alternate weekend period referred to in a. hereof will be swapped so that the child will spend the weekend immediately preceding Father’s Day with the mother so that he may spend the weekend of Father’s Day with the Father.
7.For the purposes of defining the first and second half of gazetted school holiday periods for the purposes of Order 6b. hereof the following apply:
a.In the event of the Easter school holiday period being separate from the Easter public holiday period the following will apply:
i. The first half of the Easter public holiday period will be from 3 pm on Thursday preceding Good Friday to 6 pm Easter Saturday;
ii. The second half of the Easter public holiday period shall be from 6 pm on Easter Saturday to 6 pm on Easter Monday;
iii. The first half of the Easter school holiday period will be from 5 pm on Friday at the commencement of that period to 6 pm on the following Wednesday; and
iv. The second half of the Easter school holiday period will be from 6 pm on the Wednesday of the school holiday period to 6 pm on the Sunday of that period immediately preceding the recommencement of school.
b.In the event that the Easter school holiday period includes the Easter public holiday period the following will apply:
i. The first half of the gazetted Easter school holiday period is 5 pm on the Thursday preceding Good Friday until 6 pm on the following Tuesday; and
ii. The second half of the gazetted Easter school holiday period is from 6 pm Tuesday following the Easter public holidays to 6 pm on Sunday preceding the recommencement of school.
c.The first half of a gazetted June/July or September/October school holiday period will be from after school on the Friday which follows or is the last day of school to 6 pm on the Saturday of the middle weekend of such holiday period.
d.the second half of a gazetted June/July or September/October school holiday period commences from 6 pm on the Saturday of the middle weekend of the school holiday period until 6 pm on the Sunday preceding the recommencement of school.
e.The first half of the gazetted Christmas school holiday period commences after school on the Friday following or the Friday on which school conclude (sic) until 6 pm on the Saturday falling 22 days later.
f.The second half of the gazetted Christmas school holiday period commences at 6 pm on the Saturday in the middle weekend of the Christmas school holiday period until 6 pm on the Sunday immediately preceding the recommencement of school.
Additional time with the Mother
8.Notwithstanding Order 6 hereof, the child will spend time with the Mother as follows:
a.the whole of Mother’s Day, but should that day not coincide with periods when the child will be spending time with the Mother pursuant to this Order, then the alternate weekend period referred to in Order 6a. hereof will be swapped so that the child will spend the weekend immediately preceding Mother’s Day with the Father so that he may spend the weekend of Mother’s Day with the Mother.
Communication Arrangements
9.The child will communicate with the Father at such times as the child reasonably requests to do so, but otherwise each Wednesday between 6.30 pm and 7.30 pm with the mother to:
a.Ensure the child is available to receive the call and the phone is charged;
b.Arranges (sic) for the child to telephone the Father on the following evening if for any reason he is not available to take the call from the Father; and
c.Ensure the child has privacy during the conversation;
And the father is to:
d.Provide the child with a prepaid mobile telephone and keep the phone in credit to the sum of $30 to facilitate the call.
10.The child will communicate with each parent during holiday periods at such times as the child reasonably requests to do so, but otherwise each Wednesday between 6.30 pm and 7.30 pm with the parent with whom the child is spending time to make arrangements for the call to be made to the other parent.
Changeover arrangements
15.For the purpose of changeover, all changeovers are to occur at the child’s school if changeover occurs on a school day and at the [M] Shopping Plaza if it occurs on a non-school day.
Exchange of Information and specific issues
16.That the Mother and Father will by written communication:
a)keep the other parent informed at all times of their residential address and landline contact telephone number and provide any change in writing within 7 days of such change;
b)The mother shall keep the father (sic) of the names and addresses of any treating Medical or other health practitioners that treat the child and authorise that practitioner to provide the father with information that they are lawfully able to provide about the child;
c)The mother shall inform the father within seven (7) days of any medical condition, or illness suffered by the child. This order authorises any treating medical practitioner to release the child’s medical information to the father.
d)In the event that the child has a medical emergency in the care of the father he will inform the mother immediately of the child’s attendance at a doctor or medical facility. This order authorises any treating medical practitioner to release the child’s medical information to the mother.
17.The Parents authorise, by this order, the Schools attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of School reports, Photographs, certificates and Awards obtained by the children (sic) (at the cost of the respective parent).
18.During the time the child is with either parent that parent shall:
a.Respect the privacy of the other parent and not question the child about the personal life of the other parent;
b.Speak of the other parent respectfully;
c.Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
Dispute Resolution and further applications
19.The process to be used for resolving disputes about the terms of operations of these orders shall be as follows:
a.They shall consult with a Family dispute resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
b.They shall pay the costs of the Family Dispute Resolution Practitioner equally;
c.In the event that they cannot agree on a Family dispute resolution Practitioner, the mother shall nominate three practitioners and advise in writing details of their fees, experience and availability;
d.The father shall choose one of the listed practitioners within 7 days of receipt of the list; and
e.If he fails to choose then the mother may choose.
20.Before an application is made to a Court for a variation of these orders to take into account the changing needs of the child, each party is to take the following steps;
a.Comply with Order 19 hereof; and
b.Give at least 28 days notice to the other party of the details of Orders they will be seeking in the application.
21.The parents will each attend upon a psychologist for individual therapeutic support and shall continue to attend as recommended by their therapist. Each party has leave to provide to their therapist a copy of the report of Mr P dated 13 December 2011.
22.The parents shall do all such acts and things to ensure that the child attends on a psychologist for therapy and in order to facilitate this the following orders shall apply:
(a)The parents shall sign all such documents and do all such acts and things and use their best endeavours to obtain a mental health care plan for the child from his General Practitioner. For the purposes of same the mother has leave to provide a copy of the report of Mr P dated 13 December 2011 to the child’s GP.
(b)The mother shall engage the child’s therapist as recommended by the GP and shall ensure that it is a different therapist from her own.
(c)The mother has leave to provide a copy of the report of
Mr P dated 13 December 2011 to the child’s therapist.
(d)Both parents will engage in the child’s therapy as requested by the child’s therapist.
(e)The parents will share equally in the cost of the child’s therapy.
(f)The child shall continue to attend as recommended by his therapist.
(g)The child attend upon the therapist and any notes or reports of the counsellor will remain confidential from the parties and will not be obtainable by way of subpoena unless further ordered by the Court.
23. That the ICL discharged.
A number of other witnesses were noted as being relevant in relation to these proceedings. In that regard, for example, the father annexed to his trial affidavit of 19 January 2012 a significant number of affidavits or statements by other persons, all of which he sought to rely upon in relation to these proceedings. They were, generally, of the nature of support affidavits, including observations of the father’s interaction with the child, and were, of course, highly favourable insofar as those observations of interaction and exchange between the father and the child.
None of those witnesses were available for cross-examination, but in any event, it was generally indicated that the other witnesses in relation to the proceedings were not required, and whilst I note the contents of those various statements, they not being specifically excluded, though not filed appropriately in relation to the proceedings, must say that I was not overly assisted in relation to such evidence, it being clear that it was provided specifically from the perspective of the father in relation to these proceedings, and one would not anticipate that any affidavit or statement would have been filed or relied upon by the father other than those which were of a favourable expression, in relation to his interaction with [X].
The far more significant and telling evidence in relation to the matter is that which falls from the parties themselves. They are, of course, the two most important persons in the child’s life, and the relationships that they have, both with each other and with the child, are most significant in relation to ensuring that [X] is given every opportunity to achieve all that could properly be hoped to be achieved by the child.
Additionally, and of particular assistance in relation to the matter, was the report prepared by Mr P. The report itself is attached to an affidavit filed 21 December 2011, and the report is dated 13 December 2011. It was prepared, as I indicated previously, at the request of the independent children's lawyer, and Mr P, the report writer, was available for cross-examination and was cross-examined in relation to his report and assessment, in relation to these proceedings. I will come to the evidence of Mr P shortly in relation to the matter, but first intend to address the evidence of each of the parties.
I turn firstly, then, to the father, Mr Pearson. The father is presently unemployed. He is a fulltime student, and the best that I could gather from the evidence given by him in relation to this matter was that he was currently engaged in a bridging course so as to prepare him for further studies. It was unclear, however, what those further studies might exactly entail, other than perhaps to note that, because of the father’s conviction in relation to a sexual relationship with a child under the age of 16, he was severely curtailed in relation to [omitted], which had previously been his occupation and, of course, specifically, [omitted].
The father loves his son wholeheartedly. The father, however, is engaged determinedly, I would think, in dispute with the mother, seeking to obtain the orders that he considers to be in the best interests of the child. I have no doubt the father genuinely believes that what he seeks is in the best interests of the child, but without hesitation, I would note, as did Mr P in the report, that the father, like the mother, but I think to a more significant degree, lacks any insight into the actual wishes of the child or even an appreciation of what might be in the best interests of the child, other than that the achieving by the father of what he wishes in relation to his life and relationship with the child would be a reflection of what was in [X]’s best interests.
The father is self-centred in the extreme, and it was clear in so much of the evidence that was given in relation to these proceedings that the father’s position was simply one of suggesting that if he got what he wanted, in relation to arrangements with regard to the parenting of [X], then that must be what was in the child’s best interests. It was interesting, for example, that towards the end of the evidence that he gave in relation to this matter, he commented upon issues of what was “fair”, in relation to arrangements with regard to parenting, and in fact, in his cross-examination of the mother, he specifically made references to what he says was [X]’s view of arrangements, with regard to parenting.
He asked the mother, for example, whether she was aware that [X] wants the situation to be “fair” and the mother’s response was, I think, understandable, in that she indicated that she was not aware of that, and that, if anything, her understandings of the child’s wishes were reflected in the terms of the report. The father’s idea of what was “fair”, in relation to arrangements with regard to parenting were, as I’ve indicated, far more, I though, a reflection of what the father wished to achieve than in any way an appreciation of what might have been the child’s wishes or appropriate, in relation to the parenting of the child.
In cross-examination, the father was asked about the report that had been prepared by Mr P. Counsel for the independent children's lawyer understandably sought clarification of the father’s understanding of the issues that had been raised by Mr P, particularly when the report so clearly indicated that the child felt under pressure.
The father’s responses in relation to those questions were, I thought, telling. He was asked, for example, whether he was concerned about the fact that [X] reported to Mr P that he felt pressure, and his response was self-centred in the extreme. He acknowledged that the child felt pressured, but then went on specifically to note that he was concerned himself about what [X] had said.
It was noted that [X] had felt pushed, particularly by the father, in relation to both musical and sporting activities, and the father’s answers again were couched in terms of how that affected him. He noted that he, the father, was concerned that the child was saying such things, and wondered whether, in fact, “is this my son”. He commented about the fact that he believed in his dealing with [X] that he was “fair and even-handed”, and that the child needed encouragement. When asked whether that encouragement could in fact put pressure upon the child, he again emphasised that “if even-handedness and asking three or four times is pressure, then okay, but I don't think that’s pressure.”
The fact is that the father was not prepared to consider any other position in relation to this matter, even when the concerns that were being expressed were genuine concerns raised by the child. Specifically, for example, the father was asked in relation to the comments contained within paragraph 73 of the report what he thought might have been occurring or going through the child’s mind when such comments were made to Mr P. Paragraph 73 of the report is in these terms:
[X] continued, “It’s like there is no playing with Dad [pause] just work, work, work. And I have tried to talk to him –” then added, “But I know if I talked more, then he would get up me big time; especially if I told him what I really wanted. He would be saying, ‘Just don’t live with your Mum; come and live with me’”.
The fathers’ response was again self-centred in the extreme. He said words to the effect:
I just thought, “What nonsense”. I believe he said it; I just don’t think he genuinely believes it. When he is with me, he is playful, and that’s why I asked others to make comment in relation to that in the affidavits that I’ve provided.
What is clear is that the father cannot accept in any way, shape or form that his interaction with the child, no doubt on a basis which the father considers to be positive, is stressful and disturbing for the child. Mr P noted at paragraph 75 that [X] was teary and clearly distressed when talking about some of these issues, and again the father’s position was simply to note that that didn’t happen with him.
Of course, the father’s position was one in which there was absolutely no appreciation of the fact that this little boy was caught in a situation where he was clearly distressed by the circumstances that existed within his father’s household, and yet sought to keep his father happy. If anything, the child had taken on the parenting role rather than the father. The fathers’ view was simply to think that anything said by the child, contrary to the father’s expectations or wishes in relation to parenting, were statements that were, as he put it, “influenced” by the mother.
The father so little lacked insight in relation to the enormous stressors and pressures that he brought to bear upon the child that he failed to see any difficulties that arose as a result of him discussing with the child, matters contained within the report. In particular, the father noted that he spoke with the child about the statement contained within the report that [X] had seen his father kick his mother, and that he had said that he only wanted to see his father “two to five times each year”.
The father said that the child responded that his mother had told him to say that in relation to the kicking and that the times that he had delineated were again influenced by the mother. The father could not even imagine that the child was in fact expressing to the reporter genuine wishes or concerns that arose in relation to such matters, and when confronted by the father in such a direct manner, had simply told the father what he wanted to hear.
It was extremely disturbing evidence, not so much because of the obvious pressures and stressors that were brought to bear upon the child, though that, of course, was difficult enough to accept, but more particularly, the fact that the father was so self-centred and so lacking in any insight that he was unable to understand that the statements made by this child might be anything other than statements influenced by the mother.
The father could not imagine that his behaviours were damaging to the child, hurtful to the child, or in any way less than appropriate, because it was what the father wanted. I have rarely been as troubled by evidence given in relation to discussions that a parent has had with a child as I was by the evidence given by the father in these proceedings.
His statements to the effect, “I just wanted him to know I had read the report” and “I wanted to know how he felt and why he said what he said” failed in any way at all to fully appreciate the devastating effect upon the child of being put in a situation where he at least would have expected that he was being required to justify the statements that he was reported to have made to the report writer.
The father is not an unintelligent man. He is clearly a gifted [omitted] and prior to coming to Australia, had been a member of [omitted], and obviously had qualifications and abilities that were recognised in that employment. However, the father was determined to achieve only what he saw as beneficial in relation to the child. The father failed to appreciate that this little boy had thoughts or wishes of his own, and certainly failed to appreciate that if they were in any way divergent from what the father wished to hear, that they might actually be a genuine reflection of the child’s wishes, rather than some form of manipulation or alienation perpetrated by the mother, or others on her behalf.
In fact, the father specifically challenged the report writer about his experience in relation to such issues, but was, I thought, readily dealt with by the report writer indicating that he had enormous experience in relation to preparation of reports, assessment of the statements of all involved in such reports, and had experience over 30 years, in relation to such assessments and determinations.
The father was unfortunately also lacking in any appreciation of the difficulties that existed in relation to communication between he and the mother. Notwithstanding the fact that there had been 10 years or more of difficult exchanges between he and the mother, and clearly avoidant behaviours on the part of the mother, where she simply refused to speak with the father or even to communicate by way of telephone by him, the father still seemed determined that there could be communication between them and that all of the past hurts and difficulties could simply be put to one side.
That was despite the fact that the father himself acknowledged that he had been less than full and frank in discussions with the mother, and in fact had on many occasions simply not communicated with her in relation to steps taken by him, such as discussions with tutors, arrangements for additional classes or forms of tuition, and other arrangements.
Both parents were as bad as the other when it came to difficulties in relation to communication, but unfortunately both parents were just as determined to ensure that it was only the other parent who was seen as responsible for those difficulties in communication.
The father suggested that at worst, arrangements should be put in place with regard to him spending equal time with the child. That was, of course, notwithstanding the enormous difficulties that had been experienced in the past, as well as the express wishes of the child as to there being, if anything, a reduction of time spent by him with the father. The father’s position in that regard was therefore challenged by counsel for the independent children's lawyer, who suggested that if equal time was to be put in place, there would be difficulties. The father had suggested that dispute resolution would be the ultimate answer in relation to that, and that there would be opportunities for resolution of any matters that were in dispute.
When questioned, however, as to whether he would compromise his position in respect of any such issues, the father’s answer was telling. He indicated that whilst he thought dispute resolution would be of assistance, he had been compromising for 10 years in that he had not had what he felt was even input in relation to decisions to be made with regard to [X], and that therefore, dispute resolution was really, in my assessment, nothing other than words spoken at what was considered to be the right time, and the father’s real position was to say that it would simply be appropriate for the mother to acquiesce to his determinations in relation to arrangements to be put in place with regard to the parenting of the child.
The father’s stance in relation to this matter was also interesting and troubling in relation to what weight should be given to the statements apparently made by [X]. I’ve already noted that the father’s position in respect of statements apparently made to the report writer were that they were in some way influenced by the mother. However, the father was quite determined that when speaking about concerns with respect to the mother’s care, and in particular, her excessive consumption of alcohol and dangerous driving, that indications given to him by [X] were accurate reflections of the activities within the mother’s household.
He was asked, for example, about those concerns with regard to the driving under the influence of alcohol and, in particular, whether he thought that the mother drinks frequently. He said that she did, but when asked when he last saw her have a drink, he said he had seen her last in 2002, but did make reference to observations of bottles stacked for collection outside the mother’s house. When challenged, therefore, as to his real understanding, and in fact whether his current concerns were based upon previous observations and the fact that the mother had had some years ago a driving under the influence conviction and an accident, though the mother said that that had arisen from a tyre blowout, he indicated that his concerns arose from all of those matters, and he knew that the mother drank every day because “[X] tells me”.
It was blindingly obvious that the father failed to appreciate the inconsistency in relation to such a position, when he had determinedly in previous answers indicated that anything said by the mother as being recounted to her by [X] was simply untrue, and anything said by [X] to the reporter about concerns in relation to the father were either untrue or a reflection of influence brought to bear upon him by the mother.
The fathers’ contradictory stance was perhaps most directly obvious in relation to his concerns about the mother’s criminal history. The mother has a conviction for dishonesty, and was previously sentenced to two years imprisonment, wholly suspended. His position in that respect was to say that it was an issue of concern, because the mother’s behaviour was, as he put it, “more ingrained” than his behaviour. The father minimised, in the extreme, the significance of his own criminal history, and of course, its ongoing effects upon him and his family, not being able to hold a blue card, or [omitted], because of a conviction of having a sexual relationship with a child under the age of 16 years.
The father thought the relationship with a 15 year old girl, of a sexual nature, was inappropriate because he was a [occupation omitted]. He did not know that it was unlawful, and of course, that statement of itself is troubling in the extreme, because it showed a lack of any appreciation, whatsoever, by the father, of the concerns that society has in relation to such behaviours.
The father did not think that his behaviours were ingrained. He had made a genuine mistake, as he put it, having fallen in love with a 15 year old girl, but there was nothing of concern in that regard, because, as he put it, he was seriously traumatised at the time. The father was scapegoating. It was everyone else’s fault that he had acted in a most inappropriate and concerning manner.
But, of course, the mother’s actions in relation to offenses of a dishonest nature were in no way things that could be forgiven. The father’s double standards were almost overwhelming, but perhaps most directly explained the continuing difficulties in relation to interaction between the mother and the father, because of the fact that neither could concede that there was any fault on their part, in relation to difficulties in their relationship, or difficulties being experienced by [X], other than to suggest that it was a result of the actions, or failures, of the other parent.
The father’s evidence in relation to this matter troubled me enormously. It was self serving, in the extreme. It was clear that the father’s wishes, in relation to [X], were a reflection, entirely, of the father’s wishes, and in particular, a reflection of what the father thought was “fair”, in relation to the parenting of the child, without any appreciation whatsoever of what, in fact, might be in the best interests of the child.
The father could not accept, in any way, shape or form, that his dealings with the child were, in fact, disturbing, not to the mother, though no doubt there were issues of concern that she held, but in fact, were disturbing and distressing to [X] himself. The father’s evidence in relation to this matter was chilling, and his lack of insight as to any responsibility that he had in relation to the difficulties that were being experienced gave rise to serious concerns held by me as to how there might be any appropriate relationship between the mother and the father which could, in any way, be beneficial to the child.
Unfortunately, I was similarly disturbed with the evidence of the mother, in relation to this matter. Again, whilst I have no doubt whatsoever as to her love for the child, and I think, perhaps, more comprehensive appreciation of the stressors and difficulties that were being experienced by the child, she also had acted in a self-centred manner in so many of the arrangements that were put in place, with regard to the parenting of [X].
Previous orders had provided for equal shared parental responsibility, or its equivalent pursuant to the earlier legislative terminologies, yet the mother had, almost without fail, acted in a unilateral manner. She had made moves and not communicated them until absolutely forced to do so. She had made arrangements with regard to changes of school, but had not communicated them to the father.
In relation to enrolment forms that were provided pursuant to subpoenas that were issued, it was quite clear that the mother had noted she, and her then husband Mr O, as the parents or carer of the child, and had not in any way included the father in such information.
Her response, when challenged in relation to why she had not even noted the father as the biological parent of the child, let alone a person with parental responsibility, was to indicate that she was under the impression that the information provided by her was for immediate issues, such as emergencies. And because she was so far from the father, and therefore the child was so far from the father, it wasn’t something that was relevant.
The mother offhandedly indicated that she had not included other information about the father, because she had filled the forms in quickly, but was adamant that there was no particular reason or determination on her part to exclude information from the school, or educational institution, about the father. I must say that I was far less than convinced about that position in relation to the matter, and whilst I accept that the mother’s communication and exchanges with the father have, no doubt, been fraught with difficulty, as a result of the determined approach of the father, it does not, in any way, justify the steps that were taken by the mother in that particular regard.
The mother, in fact, was challenged about her understanding of what equal shared parental responsibility required of each parent, including, specifically, that if the orders of that nature were to be continued, it would be continued on the basis that the Court, as well as the parents, were satisfied that it was in the child’s best interests. The mother, certainly, was of the view that it would not be in [X]’s best interests, and noted, I think with some genuine concern for the best interests of the child, that equal shared parental responsibility should be about [X], but, as she put it, there had been “monumental difficulties over the last 10 years”.
At the time that the mother was commenting about that, she was being questioned in relation to her enrolment of [X] at the [G] State School, and the fact that she had not discussed such an arrangement with the father. She indicated, again I thought rather half-heartedly, that she thought that that would not be a problem, and in any event she felt that it was a day to day decision, and therefore one that could be made by her, though I do not accept that that really was her understanding of the position.
Her later evidence, though on the same topic, however, perhaps explained the stance taken by her in relation to the matter. When being questioned about the enrolment being facilitated only by her, and with no proper recognition at all as the father as a parent with equal shared parental responsibility, or even a notation of him as a parent, noted that by the time she enrolled [X] at the [G] State School, she had found that it was “impossible to please him”.
That was, in my assessment, almost what could be described as, a cry from the heart. The mother, though, at least to some extent being as responsible as the father for the difficulties in relation to this matter, found herself in a situation where even if, pursuant to previous orders, the child was to live with her, and that therefore there would be convenience in having his attendance at school close by to where she resided, she could not expect that there would be any civil, or appropriate discussions between she and the father, but rather only further dispute and an opportunity for the father, to attempt to score points against the mother.
Whilst accepting, therefore, that the mother has been less than as communicative as would have been appropriate, in relation to decisions to be made with regard to [X], there is, at least, some ability to recognise that after 10 years of continued dispute, and that appears, obviously, to have been what has occurred, the mother would have been ground down by the pressures brought to bear, as a result of any exchanges with the father. Therefore, whilst not condoning a lack of consultation, such considerations, at least, explain the difficulties that the mother experienced.
The mother had clearly discussed certain issues with [X] prior to the report interviews being conducted in relation to this matter. If anything, however, her discussions with the child prior to the preparation of the report, whilst damaging, would not, in my assessment have been anywhere near as stressful, or difficult for [X] as would have been the discussions conducted by the father following his receipt of the report, and his desire to clarify what the child had said, and why he had said it.
I must say that at one stage in cross-examination by counsel for the independent children’s lawyer, I thought that the mother had not fully appreciated the question that had been directed to her. Counsel asked words to the effect, “So if his father says that [X] says things that you said, that’s right.” The mother’s response was, “Yes, it is”. I must say that I thought, at that time, that the mother misunderstood what was being asked. However, she went on to clarify that where, for example, in the father’s outline, he made reference to the fact that [X] told him that, “My mum told me to say that”, she acknowledged that she had done so.
She said that it arose from the fact that, prior to attending at the interview, she had told [X] two things, firstly, she had told him to tell the reporter what he wants to say, and secondly, when asked by [X] what he should do, because if he did that, and the father found out, he will be in trouble, she had told him, “Tell him I said to do that”.
Such an explanation of the statements made by [X] were troubling, and also comforting. I say that because the child was specifically being told to lie to his father about the reason why statements were made by him, and that is, of course, disturbing. But by the same token, it was comforting in that at least in that particular regard, it was perhaps an ill-conceived but understandable attempt to deflect any difficulty from the child and put it on to her. It was, I thought, telling in relation to this matter, because it was a clear indication of the mother’s determination to protect the child from what might be seen to be pressures, or stressors brought to bear upon him by the father, whilst the father had absolutely no appreciation whatsoever of the actual effect of his questioning of the child in relation to such issues.
It was a matter which was significant in relation to the determination of these proceedings. The mother wanted the best for the child, though I have no doubt that it suited her to be able to say that the best for the child included a recognition of the child’s wishes, and the child’s wishes were for less time with the father.
The mother, however, to a significant degree failed to appreciate some of the consequences of her own actions, in perhaps overly meeting the child’s wishes, or wants, in that regard. For example, it was quite clear that there had been, particularly in the past, significant periods where the child had not properly, or regularly attended school. Her responses in relation to that was that the Fridays and the Mondays, and there were many that the child missed at school, were because they were days that either commenced time with the father, or concluded time with the father, and that the child had been affected by the fact that he was to spend time with the father, and that therefore she had acquiesced in him not attending school, because he was too upset.
It, of course, failed to recognise in any way the importance to the child of a proper and consistent school attendance for the purposes of his education. It was troubling that the mother acted in such a manner, though, as I have previously indicated in relation to this matter, it was more, I thought, a reflection of the mother seeking to provide comfort and support for the child, than a failure to recognise the importance of education. In any event, the mother has certainly noted the significance and importance of such issues, and of the fact that whether or not time is increased, decreased, or remains the same, the child’s education must be to the fore.
In cross examination by the father, the mother was, I think, understandably challenged by the father about issues in relation to role models, and in particular male role models for boys. The mother noted that they needed a positive role model, and as the parties sparred with each other about what would be a positive role model, it became clear that the father was seeking to obtain from the mother some admission, either that only he, as the biological parent could provide that modelling, or alternatively sought to obtain from her some admission that she saw no weight, or value in his relationship with the child because he did not provide a positive role model.
The mother finally did acknowledge that her former partner, over five years, had had contact with the child, and that the child liked doing things with him. And then, I think, rather notably, indicated that as far as the father’s role modelling to the child, she could only indicate what she thought, and that that was not, she thought, positive.
The father, as I noted previously, suggested that one of [X]’s wishes was for his parents to get along, and that that could be achieved as being a fair arrangement in relation to the proceedings. The mother, again I thought most astutely, noted that what the father thought was fair, was really just a reflection of what the father wanted, or as she put it, the option B that was put forward by him was simply an arrangement that was in his best interests.
The mother noted that what would be best for the child, and therefore fair to the child, would be for him to have appropriate counselling, or therapy, to deal with the problems that had already arisen in relation to their exchanges.
The mother was a troubling witness therefore, in that there was a steel, I thought, in her determination to achieve what was best for the child without a full appreciation of the child’s need for a relationship with his father. By the same token, however, I gained the distinct impression that the mother at least acknowledged, and recognised the importance of the relationship being fostered in a positive way between the father and [X], and to that extent at least, her understanding of the responsibilities of parenting and her appropriate attitude to parenting were, I thought, significantly greater than any such understanding or attitude that the father might have.
I turn now to the evidence of the report writer in relation to this matter. Mr P is a forensic psychologist, and prepared a report in relation to this matter. Mr P has enormous experience in relation to family assessments and the preparation of reports in relation to family law proceedings.
He was asked by counsel for the independent children’s lawyer about the effects on the child of the continuing altercations, or disputes between the parents, and in particular if such incidents occurred in the presence of the child. Mr P noted that he would be most concerned by such continuing dispute between the parents, certainly in the presence of the child, and indicated that there would be a direct impact on how [X] felt about himself.
He thought that there would a be a continuing, and developing negative impact upon the child of this continued dispute, and it was a matter that troubled him, and continued to be a theme throughout the evidence that he gave in relation to this matter, both as contained within his report, and also as given orally.
Mr P was advised of the fact that the father had spoken to [X] about at least two aspects of the statements within the report, specifically that he had seen the father kick his mother, and that he had indicated to
Mr P that he wanted to reduce his time with his father. He was asked whether such discussions raised by the father with the child would again be of concern to him, and he noted that that would be the case upon a number of levels.
He said, firstly, of course the nature of the disclosures meant that they had to be dealt with in an appropriate manner, and whilst they obviously had to be contained within the report, they were primarily for the benefit of the parties and the Court, so as to enable the parties to be aware of the concerns expressed by the child, and for the Court to be able to fully appreciate the pressures that were brought to bear upon the child.
To discuss such issues with [X], therefore, was, as Mr P put it, an indication of the fact that the father’s attitude was “naïve in the extreme”. He described it as the father, “breaching the boundaries” of what was appropriate parenting in relation to [X], and was adamant that discussing such issues with the child, so as to put his mind at ease, was again a naïve expression on the part of the father, and that in his assessment it would clearly lead to [X] suffering further distress.
Similarly, however, Mr P said that he was troubled about the mother indicating to [X] that he should mislead the father as to why he had made certain statements, and to tell the father that the mother had told him to say this. Mr P noted that that was a real concern because of the psychological effects upon the child, and indicated that it had, “the hallmarks of parents who don’t talk to each other, and the hallmarks of a situation where neither recognises the negative effects that it has upon [X].”
The real concerns, in relation to this matter were therefore the parent’s lack of capacity to communicate with each other, or to even appreciate the effects of their dysfunctional relationship with each other upon their child.
Mr P emphasised, that any suggestion that [X] should have a final determination in relation to what arrangements should be made with regard to his parenting, placed him in a position of further stress. And if anything, the orders that should be made in relation to these proceedings should be highly prescriptive, so that there was no possibility of either parent, or [X] misunderstanding what were the expectations in relation to time to be spent by [X] with both of his parents.
Mr P was minded, particularly, to note that [X] reported that “both parents” had said things that he, “didn’t really want to hear”. The fact was that Mr P thought that this child had been abused psychologically by the actions of both of his parents, and that they needed to clearly be aware of the need to ensure that that did not continue. Mr P, therefore, emphasised the importance of there being stability and settled arrangements in relation to the child, and in fact commented specifically about concerns as to any change in times being directly hurtful to [X].
Mr P also was asked about the effectiveness of continuing arrangements with regard to equal shared parental responsibility. He noted that the only real circuit breaker in the continuing conflict that existed between the parents, which conflict had already caught [X] up in a situation where he sees himself as guilty, or responsible for any hurt that either parent experienced as a result of more time, or less time being spent by the other parent with the child, was for the parties to communicate.
Unfortunately Mr P’s assessment was identical to mine. He indicated in cross examination that he had no expectation of there being an improvement in communication between the parties. He then went on to note that if that was the case, then he could see no benefit to [X] in there being continued arrangements with regard to equal shared parental responsibility, because without communication, there could not be consultation, and the history of the matter strongly argued against that being something that could occur, and therefore strongly argued against equal shared parental responsibility, and equal time being a functional arrangement.
Mr P was asked, in general terms, what his view was in relation to arrangements with regard to short term and long term parental responsibility, if dispute between parents was not able to be resolved. He was then asked more specifically what, in this instance, would be the impact upon [X]. In the first instance, the more general enquiry, he indicated that children finding themselves in these sorts of continued, unresolved disputes between parents became highly influenced by others than their parents, and graduate to peer relationships, which eventually lead to fractured parental relationships.
It then has serious social consequences, including, in many instances, antisocial behaviours, such as drug use, or general illegality. He also noted that in situations, such as that of a child turning to his peers for support, rather than to its parents, because of the hurt that he has experienced as a result of their behaviour, then there were obviously long term problems in relation to the types of relationships that those children were able to establish, because their relationships with their parents, and their observations of such relationships were of such a fractured, or harmful nature.
Mr P had real concerns for this child as a result of the continued dispute between the parents, and the lack of any appreciation whatsoever by them of the hurt that they caused as a result of their failure to, in any way, accept that they could do better in relation to the parenting of this child. I have similar concerns myself, in relation to such issues.
The father, as I indicated earlier in these reasons, challenged the experience, and expertise of Mr P. But when it was noted that his experience in child psychology was that he had been involved in it at a masters level, and had also had two periods of work as a court counsellor with the Family Court Counselling Section, as well as having prepared over 500 reports in relation to family issues, and therefore that he had enormous experience, the father, understandably, did not press the point.
He was challenged by the father about issues in relation to whether he had experience with parental alienation, and noted that he was aware of it, and that he acknowledged that parental alienation did occur. When asked by the father whether [X] had been subjected to parental alienation, though it was unclear whether the father was suggesting that that was by him, or the mother, though I infer he was suggesting by the mother, Mr P noted that he did not think that [X]’s behaviours fell into all of the criteria that would need to be considered in relation to any determination of parental alienation.
Noteworthy, however, was the fact that whilst Mr P did not suggest that [X] had been the subject of parental alienation by definition, he did consider that [X] had been the subject of influences brought to bear upon him, probably by both parents, and that as a result of that he was experiencing difficulties.
Also noted in cross-examination by the mother was the fact that whilst Mr P indicated that [X] had been quite distressed by the present circumstances, and the present situation that he found himself in, and that distress was exacerbated by the poor communication, as between the parents, Mr P did not suggest change to the current arrangements. The response given by Mr P was, I thought, most telling. He said words to the effect, “What needs to change for [X] is for his parents to talk to each other. Other tinkering with orders is not of great consequence.”
Mr P noted that [X] was aware of these proceedings and was experiencing further anxieties from these court times. He noted, further, that changes needed to occur between the parents and if they could not change, then it was necessary for the Court to intervene.
I was most assisted by the evidence of Mr P in relation to this matter. In particular I noted the comments by Mr P at paragraphs 60 and 61 of his report, and of the fact that they highlighted the very real concerns in relation to this matter. He said, at paragraph 60 and 61 the following:
In the writer’s opinion, Mr Pearson presented as a single minded and extremely focused individual, who at times demonstrated significant difficulty in answering both the spirit and literal nature of questioning, however appeared entirely focussed on what he considered to be “a favourable outcome” at trial.
61: Like the mother, the writer formed an opinion that Mr Pearson’s accounts of issues, and weightings that substantially inform the difficulties before Court were replete with examples of lack of insight concerning his part in the history of the difficulties.
I could not agree more with the assessment of Mr P in relation to this matter. It is clear that these parents have failed, in any way, to appreciate their own responsibility for the real difficulties that are now being experienced by this child, and it falls obviously, therefore, upon the Court to put in place orders which as best they can be formulated at least provide for a settled, stable and ongoing routine in relation to the child’s right to a relationship with both parents, which is not harmful or detrimental to the child.
I turn, then, to the law, and in that regard I will direct that there be included here my normal statements in relation to issues with regard to: parental responsibility in relation to this matter.
I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, that the paramount consideration is the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the child. In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA of 80, a decision handed down on 11 February 2010. His Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented through from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136] The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137] Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138] But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139] The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140] No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141] The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142] Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143] “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means 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);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144] Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145] Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146] Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147] A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148] The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149] If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150] The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151] An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152] Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
Obviously the issue of parental responsibility is one of great significance. Here it is a matter which looms large because of the very divergent position of the parties. I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.”
Exactly that situation arises here. The difference between Lansa & Clovelly and this case, however, is that there was some indication that the report writer in that case was hopeful that a decision about parenting would see an abatement of the conflict between the parties. There was also evidence in Lansa & Clovelly of the fact that the parties had been able, at least in part, to make decisions and to work together with regard to the decision-making process with regard to the long-term interests of the child.
There is no such indication in relation to this matter.
Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
The evidence taken directly from the parties and also from the report of Mr P is that communication between the parties is severely conflicted and, in fact, his view, as I noted earlier, was that the parties had little likelihood of being able to change the manner of communication or rather, lack of communication, that had existed and in his view, if there was no change, and he did not expect that it would occur, then the court should intervene and, by inference, equal shared parental responsibility was untenable.
I could not agree more. Both the mother and the father, for reasons peculiar to themselves, are unable in any real way to communicate with the other and, even more tragically, are unable to recognise that they are, at least in part, responsible for those difficulties in communication and, more significantly still, responsible for the hurt that is already occurring with [X], and may cause him considerable further harm into the future.
The parents have had the opportunity over nearly a decade, to attempt to put behind them the hurt that they say they experienced as a result of their short relationship and long post-separation upheaval. Without doubt, the parents cannot communicate and will not change, such that I am satisfied that any order for equal shared parental responsibility would not be of benefit to this child. The presumption is clearly rebutted in this matter and it is necessary therefore to consider which of the two parents should have sole parental responsibility.
To determine that particular aspect of the matter, there should obviously be consideration of the objects and principles as enunciated in section 60B of the Family Law Act, as well as the various considerations which are reflective of the objects and principles, as set out in section 60CC of the Family Law Act. Sections 60B(1) and (2) and section 60CC(2) and (3) are as follows:
60B(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.
60B(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).
Primary considerations
60CC(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
60CC(3)Additional considerations are:
(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;
(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);
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
It is not necessary to consider specifically the provisions of section 65DAA because in this matter I have expressly rebutted the presumption of equal shared parental responsibility and therefore the direction that the court must consider equal time or substantial and significant time, is not required. The recognition, however, of the importance of the considerations set out in section 60CC(2) and (3) does mean that whilst equal shared parental responsibility has been excluded as in the best interests of the child, it does not remove the need to consider other parenting arrangements, including the time with the child as per section 65DAA(1) or (2).
Accordingly, where applicable, there must be consideration of the various provisions of section 60CC(2) and (3) and a determination from the findings that flow from that consideration of what arrangements are most appropriate for the parenting of [X]. In that regard, the primary considerations are, of course, significant. [X] has a right to a meaningful relationship with both of his parents and, to differing degrees, that relationship already exists. What is troubling, however, is that the relationship currently in place between the father and the child, is one that is continuing to put pressure upon the child and to cause him significant stress, as identified by Mr P.
In that instance, the positive nature of ensuring that there is a meaningful relationship must be balanced against the concerns that arise in section 60CC(2)(b) to ensure that the child is protected from physical or psychological harm. Unfortunately, Mr P identifies the behaviours of the father specifically as being actions which cause this child distress and notes that without some significant changes to the behaviours of both parents, but particularly the father, then that the child’s future prospects were significantly under threat. His references to the general theme of children in such situations becoming highly influenced by others than their parents and the possibility of fractured parental relationships leading to anti-social behaviours was chilling.
In the circumstances, the opportunity for a meaningful relationship, however that might be defined, either by way of time generally, or quality of time needs to be balanced against the need to protect [X] from further harm. Obviously, further assistance is available in making that determination through consideration of those matters detailed in the additional considerations set out in section 60CC(3).
There must be an appreciation, subject to the maturity of the child, of weight to be given to any wishes expressed by the child. Here, the child clearly expresses wishes in that he suggests that his time with the father should be limited to between 2 and 5 occasions each year. That obviously is a random suggestion of time and perhaps reflects the immaturity of the child in attempting to make any assessment of what time should be spent with his father. But it should not be entirely disregarded because it clearly reflects the child’s distress at the father’s continued questioning of the child and the pressure that this little boy feels is brought to bear upon him by the expectations and wishes of the father. It is not necessarily therefore an over-riding determinant in relation to the arrangements with regard to the parenting of the child, but it is a consideration which should not be wholly disregarded, specifically in light of the concerns expressed by [X] and recognised by Mr P.
[X] has a positive relationship with both of his parents and it is one that in the proper context, can only be beneficial to him. However, that relationship, at least at the present time, is impeded with the father because of the pressure that the child feels is brought to bear by the actions and expectations of the father. The child clearly is more at ease in his relationship with his mother, and that is reflected again in the wishes that he expresses and the reliance upon his mother, to provide a buffer between he and his father when [X] actually expresses his wishes in relation to less pressure and stress and, in fact, less time with his father.
The willingness and ability of each of the child’s parents to foster a relationship with the other parent is significant here. As I have found, both have fallen significantly short of what might have been properly expected in relation to fostering the relationship with the other parent, but I am far more inclined to the view that the mother has attempted far more earnestly and determinedly to encourage a close and continuing relationship with the father than has been the father. I sadly gain the distinct impression that the father has been inclined, on almost all occasions in the last ten years or so, to find fault with the mother, to clearly indicate to the child that there is fault in the actions of the mother, and to undermine, at worst, and discourage at best, the relationship between [X] and his mother.
The father gave the impression overwhelmingly at this hearing, that the best interests of the child were no more than a reflection of what he saw as in his best interests and that if he as a father was happy with the circumstances then the child could not help but be comfortable. It was self-serving and self-centred and gave rise to very real concerns that the father would not be able to put the child’s best interests ahead of his own and therefore to properly foster a relationship between the child and the mother.
There would not be great significance in changes to [X]’s circumstances, at least geographically, if he were to live primarily with the father or, as suggested in the alternative by the father, to live on approximately an equal basis in each parent’s household. But the psychological effects upon the child would be enormous. Firstly, there would be the increased stress associated with more time being spent within the father’s household and, I would think, unless the child were living primarily with the father, further pressure to spend even more time with the father.
Additionally, and perhaps even more significant would be the child’s continued stressors associated with the poor communication between the parents, their continued dispute over even the most basic of decisions to be made in relation to the child, and the real concern that the child would be attempting to be all things to both parents and therefore to lose the important relationship that should exist with each of his parents.
In my assessment, any changes, other than reduction of time, from those care arrangements that presently exist, including specifically increases in time to be spent with the father, would be of serious detriment to the child and would affect him now and well into the future.
There is no great expense associated with the child spending time and communicating with both of his parents, due to the fact that the parties live in reasonably close proximity to each other. There is however, practical difficulties that arise because of the lack of communication between the parents and, more significantly, the lack of recognition by either of the harm that is caused to the child as a result of the ongoing dispute between the two.
Of very real significance in relation to the determination of this matter is the need to consider the capacity of each of the child’s parents to provide for his emotional and intellectual needs, coupled with the need to consider their attitudes to the responsibilities of parenthood. I would think that the father, having a background in education, would be more likely to be able to provide for [X]’s intellectual and educational needs now and into the future, but it would of course have to be balanced against the pressure that I would think the father, unknowingly would continue to place upon the child, which would of course directly affect the child emotionally.
Mr P, in his report and oral evidence, made reference to the pressure already upon the child, his observations of the present effects upon the child and the real concerns that he held for future harm that would occur, unless the father’s interaction with the child, as well as with the mother, were to be significantly altered. I am therefore minded to think that whilst the mother may not have fully appreciated her obligations and responsibilities in relation to the child’s education, particularly with regard to his school attendance and stability of school, is more fully able to provide for the emotional well-being of the child, which would lead to a more conducive environment for the child’s intellectual development
Additionally, the mother’s attitude to the responsibilities of parenthood, though subject to appropriate criticisms, are far more child-oriented than is the father’s attitude, having found that he lacks any real insight into the effect of his own behaviours upon the child, such that overall, the mother’s capacities and attitudes far more reflect the best interests and the welfare of the child than does the capacities and attitudes of the father.
Issues in relation to maturity, sex, lifestyle and background do not loom large in relation to the matter and to its determination, other than to note that the father’s minimisation of the significance of his criminal behaviours, and they were nothing less, gives rise to at least a passing concern as to the father’s maturity when it comes to issues of relationships and an appreciation of what is socially acceptable behaviour.
Family violence has not been a factor that has loomed large in this matter, but recognising the wide definition of what constitutes family violence, it would be remiss of me not to note that there are issues in relation to the behaviours of each parent toward the other, which has been inappropriate and which has led to the increasing pressures brought to bear upon this child. The lack of respect that each has shown toward the other, as well as the lack of recognition of the hurt that is caused to [X] as a result of their actions toward each other, is a matter that needs to be addressed by each, though unfortunately it is not a matter that can be ordered to be redressed, but rather can only be hoped to be appreciated by both parents.
To make an order that is least likely to lead to the institution of further proceedings is difficult to imagine in a matter such as this where there has been such repeated applications for clarification or variation of orders. The Independent Children’s Lawyer and the report writer have therefore both stressed the need for very precise orders, known to both parents and [X], so that there is not an opportunity for further confusion as to times, dates and places that are to be considered in relation to each parent’s time with the child.
I accept the strength of that particular submission, particularly in light of the continued difficulties that each parent has apparently had in ensuring that there was proper compliance with the orders. Orders that provide for sole parental responsibility remove at least one of the areas of contention that arise as a result of allegations of not communicating or discussing decisions to be made and orders which go on to provide precisely for times and dates for time to be spent again remove the prospect of further litigation.
As is hopefully obvious from this lengthy consideration of the law, and the evidence as applied to it, I am of the view that sole parental responsibility vesting in the mother is in the best interests of the child, being reflective not only of the wishes of the child for settled and stable routines in relation to decision-making, but also removes the possibility of further undermining of the relationship that [X] has with each of his parents.
I noted earlier in these reasons that there needed to be consideration of the various matters set out in section 60CC(2) and (3) to determine whether arrangements for equal time or substantial and significant time would be in the child’s best interests, notwithstanding the rebuttal of the presumption of equal shared parental responsibility. Having addressed the various matters that loom large in relation to this matter, I am satisfied that equal time, or even substantial and significant time, are not appropriate in this matter.
The recommendations of the Independent Children’s Lawyer recognise the need to provide stability for the child, certainty for [X] and his parents as to time to be spent with each parent, and most significantly, an end to the stress that the child experiences as a result of the conflicting pressures brought to bear by each of the parents. I am satisfied that those orders provide that settled and stable routine, as well as recognising the benefits to the child of there being a meaningful and positive relationship with each of his parents.
In light of the lengthy consideration of the evidence and its application to the law relating to a re-determination of orders in respect of parenting, it is not, in my assessment, appropriate that there should be a determination of the Contravention application currently outstanding. All parties were of the view that the most appropriate course was to determine what orders should be made now and into the future as to the best arrangements to provide for the future interests of [X]. I am satisfied that, if a determination were made in relation to the Contravention application, the only appropriate course to follow would have been that which has occurred here, an opportunity to file material to consider a re-determination of orders in the best interests of the child and, so, I am satisfied that the appropriate order in relation to the contravention should be that the application is otherwise dismissed, with no order as to costs.
Accordingly, the orders that I intend to make in this matter are as detailed at the beginning of these reasons.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Coker FM
Date: 4 May 2012
ANNEXURE 1
(a) FINAL ORDERS SOUGHT:
That the child [X] born [in] 2002 resides with the father and that the father be responsible for the decision making in relation to the said child’s day to day care welfare and development.
That the father consults with the mother before making decisions in relation to the said child’s long term care, welfare and development.
(In the event that the parties have disagreement about long term decisions affecting the child then the parties shall each do all acts and things necessary to attend upon a family consultant at the Family Relationships Centre or other agreed family consultant in an endeavour to resolve the disagreement.)
That the mother have contact with the said child at all reasonable times as may be agreed between the parties and in particular;
(i)each alternate weekend from 3pm Friday to 9am Monday;
(ii)for one half of all gazetted school holidays with the first half in each even numbered year and the second half in each odd numbered year.
(iii)such weekend or gazetted school holiday period to include any public holiday or student free day immediately preceding or following that weekend or school holiday period.
That contact provided in relation to weekends and weekdays is suspended during school holidays and Easter public holidays.
That for the purposes of defining the first and second half of gazetted school holiday periods that the following apply:
(i)the first half of the Easter school holiday period or Easter public holiday period commences at 3pm on the first day and concludes at 12pm on the middle day of that period when there is an odd number of full days in that whole holiday period and 6pm on the middle day of that period when there is an even number of full days in that whole holiday period;
(ii)the second half of the Easter school holiday period or Easter public holiday period commences at 12pm or 6pm on the middle day of that period as determined by the length of that whole holiday period in 5(i) above and concludes at 9am on the recommencement of school;
(iii)in the event of the Easter school holiday period being separate from the Easter public holiday period then each such period shall be deemed to be school holiday periods for the purposes of paragraph 3(ii) above;
(Example 1: Easter public holiday period is from 3pm Thursday 3rd April to 9am Tuesday 8th April and the Easter school holiday period follows through to 9am Tuesday 15th April.
A total of 11 full days divided by 2 = 5½ days each.
Therefore the middle day handover would be 12pm Wednesday 9th April.Example 2: Easter school holiday period is from 3pm Friday 28th March until 9am Tuesday 8th April.
A total of 10 full days divided by 2 = 5 days each.
Therefore the middle day handover would be 6pm Wednesday 2nd April.
This is followed by an Easter public holiday period from 3pm Thursday 17th April to 9am Tuesday 22nd April.
A total of 4 full days divided by 2 = 2 days each.
Therefore the middle day handover would be 6pm Saturday 19th April.)(iv)the first half of a gazetted June/July or September/October school holiday period shall be from 3pm on Friday to 6pm on the Sunday 9 days later;
(v)the second half of a gazetted June/July or September/October school holiday period commences at 6pm on that middle Sunday until 9am on the day school recommences;
(vi)the first half of the gazetted Christmas school holiday period shall be from 3pm on Friday to 6pm on the Sunday 23 days later;
(vii)the second half of the gazetted Christmas school holiday period commences at 6pm on that middle Sunday until 9am on the day school recommences.
That notwithstanding the terms of these Orders the child will spend the whole of Mother’s Day with the Mother and the whole of Father’s Day with the Father. In the event that these days do not coincide with periods when the child will be spending time with that respective parent then the alternate weekend periods referred to in paragraph 3(i) above shall be swapped so that:
(i)The child will spend the weekend immediately preceding Father’s Day with the Mother so that he may spend the weekend of Father’s Day with the Father; and
(ii)The child will spend the weekend immediately preceding Mother’s Day with the Father so that he may spend the weekend of Mother’s Day with the Mother.
That the child [X] be permitted to go to one of three primary schools all within 3kms of his home in [omitted], Cairns.
That the Mother Ms Kelman undergoes a full clinical psychological assessment before she is permitted to carry the child [X] as a passenger in a vehicle that she intends to drive.
That the Mother be responsible for all journeys in relation to contact but until such time that she is able to physically and mentally convey the child safely, the Father shall be responsible for all journeys in relation to the child’s contact with the Mother.
That each parent notify the other prior to any attendance with a medical practitioner or other medical expert and in the event of an emergency attendance that each party notify the other within1 hour of such attendance. (Details of general practitioners and any medical specialists treating the child need to be given to the other parent both verbally and in writing).
That each parent notifies the other immediately when the child is unable to attend school for any reason. (If the child is absent due to sickness a medical certificate needs to be obtained and a copy given to the other parent).
That both parents fully support the child in all his schooling and extracurricular activities which includes practice, training, and attendance at musical and sporting sessions, lessons and events;
That each parent notify the other of any intended change of address, new telephone number or email address immediately.
That the child [X] is permitted to have his own prepaid mobile phone including ear piece with a credit balance up to $40.00 for the purpose of communicating freely with both his parents particularly during school holiday periods. (Cost to be shared equally by both parents).
That each parent is to inform the other of all:
(i)medical or health matters affecting either parent which may affect the ability of that parent to care for the child;
(ii)disciplinary matters other than of a trivial nature.
That within 14 days the Mother do all acts and things and sign all documents to enable an Australian passport to be issued for the child [X] and that should she fail to do so then that the Registrar of the Federal Magistrates Court in Cairns be empowered to complete and sign such documentation in her stead.
All passport processing costs are to be shared equally by both parents.
That such passport be held, or upon joint direction of the parties or other Order by a Court of competent jurisdiction, by the Registrar of the Federal Magistrates Court in Cairns.
That before my proposal (Option B) for an equal shared parenting arrangement can be considered the Mother agrees to:
(i)do all things necessary to satisfy the Court that she has a clean record of health which includes but is not limited to mental and alcohol related illness;
(ii)move to Cairns [postcode omitted] when her rental lease expires;
(iii)all proposals I seek in ‘Final Orders Sought’
(b) FINAL ORDERS SOUGHT:
That the father and mother have equal shared parental responsibility of the child [X] born [in] 2002.
The child will live with each of the mother and father on a shared arrangement rotating each week from after school Friday one week until after school Friday the following week.
In the event that the parties have disagreement about long term decisions affecting the child then the parties shall each do all acts and things necessary to attend upon a family consultant at the Family Relationships Centre or other agreed family consultant in an endeavour to resolve the disagreement.
That the child [X] be permitted to go to one of three primary schools all within 3kms of his home in [omitted], Cairns.
That the week about arrangement shall continue through all school holiday periods except the December/January holiday period. This sex week period shall be divided so that the child spends one week with one parent, two weeks with the other parent, two weeks with the first parent and finally one week with the second parent.
(Example: Christmas 2012; parent A who is caring for the child the week before the school holiday commences has the first week of the school holiday, parent B has the next two weeks, parent A the following two weeks then parent B the last week of the school holiday and the first week in the new term.
Christmas 2013: parent B has the first week of the school holiday, parent A has the following two weeks, parent B the next two weeks then parent A has the final week before the new term commences. Therefore [X] can spend Christmas with one parent and his Birthday with the other parent alternating each year as is currently the case).
That notwithstanding the terms of these Orders, the child will always spend Father’s Day between 8am and 8pm with the father if he is not otherwise living with the father, and the child will always spend Mother’s Day between 8am and 8pm with the mother if he is not otherwise living with his mother.
That for the purpose of conveying the child, each parent shall be responsible for collection of the child when the child is due to be in their care.
That each parent notify the other prior to any attendance with a medical practitioner or other medical expert and in the event of an emergency attendance that each party notify the other within 1 hour of such attendance. (Details of general practitioners and any medical specialists treating the child need to be given to the other parent both verbally and in writing).
That each parent notifies the other immediately when the child is unable to attend school for any reason. (If the child is absent due to sickness a medical certificate needs to be obtained and a copy given to the other parent).
That both parents fully support the child in all his schooling and extracurricular activities which includes practice, training, and attendance at musical and sporting sessions, lessons and events;
That each parent notify the other of any intended change of address, new telephone number or email address immediately.
That the child [X] is permitted to have his own prepaid mobile phone including ear piece with a credit balance up to $40.00 for the purpose of communicating freely with both his parents particularly during school holiday periods. (Cost to be shared equally by both parents).
That within 14 days the Mother do all acts and things and sign all documents to enable an Australian passport to be issued for the child [X] and that should she fail to do so then that the Registrar of the Federal Magistrates Court in Cairns be empowered to complete and sign such documentation in her stead.
That all passport processing costs are to be shared equally be both parents.
That such passport be held, or upon joint direction of the parties or other Order by a Court of competent jurisdiction, by the Registrar of the Federal Magistrates Court in Cairns.
0
2
1