Peters and Ustinov

[2011] FamCA 588

FAMILY COURT OF AUSTRALIA

PETERS & USTINOV [2011] FamCA 588

FAMILY LAW - CHILDREN - Parental responsibility - Presumption of equal shared parental responsibility

Family Law Act 1975 (Cth)

APPLICANT: Ms Peters

RESPONDENT: Mr Ustinov

INDEPENDENT CHILDREN’S LAWYER: S. Mahony

FILE NUMBER: PAC 3670 of 2009

DATE DELIVERED: 3 June 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 31 January 2011, 1 & 2 February 2011, 27 & 28 April 2011 and 13 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Stenhouse

SOLICITOR FOR THE APPLICANT: Sharon Payne Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Alexander, later the father in person

SOLICITOR FOR THE RESPONDENT: Hilton King Lawyers, later the father in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Wong

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adams Partners

Orders

(1)That all previous parenting orders be and are hereby discharged.

(2)That the mother, Ms Peters, have sole parental responsibility for H born … December 1993 and B born … July 1999.

(3)That the said H and B live with the mother.

(4)That before making a decision in relation to a long term issue in relation to either of the said children the mother shall:

a.Inform the father via email of the issue in question;

b.The father shall have twenty-one days in which to provide input in relation to the issue by way of email;

c.The mother shall upon receipt of such email consider the father’s input before making a decision concerning the long term issue.

(5)Notation major long term issue has the meaning provided for in Section 4(1) of the Family Law Act 1975 (as amended), as at the date of these orders.

(6)That the mother notify the husband at the earliest opportunity of any accident or emergency involving either of the boys.  In such a case notification may be made by telephone, SMS or email.

(7)That each party keep the other advised of their current address, telephone number and email address and each shall notify the other within seven days of the event of any change.

(8)That each party be restrained from denigrating the other party in the presence of the Children or either of them or causing or permitting another person to so denigrate.

(9)That the mother do all such things and sign all such documents as are necessary to allow the father to obtain information and documentation from B and H’s school that would normally be available to parents, at his expense including but not limited to:

a.       School reports;

b.      Applications for school photographs;

c.      Notification of school events such as parent-teacher interviews.

(10)That in the event the father wishes to raise any issues upon or concerning the welfare of either of the boys, he shall be at liberty so to do, by way of email, limited to not more than two emails on any such subject and upon receiving any such email the mother shall have twenty-one days in which to communicate her response to the father.

(11)I otherwise stand the issue of the father’s time with the children over for Judgment upon the medical material in relation to the father’s condition being made available to me as previously ordered.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3670 of 2009

Ms Peters

Applicant

And

Mr Ustinov

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1.This matter involves the parties’ sons, H and B.  The matter has followed a most unusual course since the hearing completed.  At the conclusion of evidence and following submissions by the legal representatives of the parties and the independent children’s lawyer, it became clear that the issues for determination were:  (a) whether the parties should have equal shared parental responsibility as the father contended; and (b) whether the mother should have sole parental responsibility for the children as contended for by her;  (c) what time the father is to spend particularly with the parties’ younger son, that is B, and if possible with H.

2.Accordingly, at that time I made orders that I would reserve judgment and further that I would not deliver judgment until I had made available to me information concerning the father’s state of health.  I made further orders for the father to spend time with the child, B, on three occasions at this registry as arranged with the acting manager of mediation services.  I further ordered the father’s solicitors were to provide to the court, the mother’s legal representative and the independent children’s lawyer, reports setting out with some precision the father’s medical condition and, if possible, a prognosis.

3.I had ordered those reports because at the commencement of the second tranche of the hearing the father gave evidence and indicated that he had undergone exploratory surgery.  He indicated that a growth had been located in his bowel which was benign.  He indicated that he needed further specialist review and possibly operative care.  However, when issues of his health were raised with him he was emphatic that his condition would not impact upon his capacity to see either of his boys and spend time with them.  He was, indeed, dismissive and apparently offended that such a question or proposition should be put or made to him.

4.However, the situation has now changed.  The matter was re-listed at the father’s request.  The solicitors who had previously represented him had filed a notice of ceasing to act.  The matter came before me on 13 May 2010 on which occasion the father made it clear that he did not wish to avail himself of time with his son, in the court in the presence of a family consultant.  He also communicated that his doctors would not provide any detailed material as they were too busy saving lives.  Accordingly, on that occasion I ordered Ms Mahoney, the independent children’s lawyer, to contact the doctors and endeavour to obtain from them appropriate material.

5.At the father’s insistence I ordered that Ms Mahoney not upset the medical practitioners.  I further ordered that the father was to spend a period of time in this registry on 18 May, in the presence of the independent children’s lawyer and Major S, the Salvation Army chaplain in this court. 

6.The father, it now seems, has sought to impose his will upon the court by saying that he will not undergo any surgery at all until he knows the outcome of the proceedings by delivery of judgment, so as to dispose of all outstanding issues.  This matter has caused me very considerable concern.

7.I found it repugnant that a litigant should act in this fashion using, as the basis to achieve what he wishes, a threat that if something happens to him, because of his medical condition without knowing what that medical condition is, it will be upon my head and apparently the head of the independent children’s lawyer.  Notwithstanding that it may be seen to be giving way, at least in part, I have come to the conclusion that the father is entitled to know the order that I would make in respect of the question in issue of parental responsibility, and he is entitled to have my reasons for that decision.

8.Accordingly, on 20 May, of my own motion, I arranged for the matter to be re-listed on 3 June, today, for the purpose of delivery of judgment as to the issue of parental responsibility. 

THE PARTIES’ PROPOSALS

9.This matter, as I say, involves the future of the parties’ sons.  The mother, who is the applicant, contends that the children should live with her and that they should spend some time with their father, but that time, initially, should be supervised.  The mother would prefer if orders were made that the children spend time with the father as they wish.  She certainly indicates that she opposes any order whereby the father has equal shared responsibility with her.

10.The father’s case is that there is absolutely no difficulty with the boys seeing him and both of them should start seeing him immediately. He indicates that he presses that the issue of parental responsibility be resolved by the court following the presumption contained in the Act, and allocating equal shared parental responsibility in respect of both boys. 

THE PARTIES’ DOCUMENTS

11.A large number of documents have been filed in this court.  In respect of the mother, there was her amended application for final orders of 12 January 2011, having filed an initiating application previously. 

12.She filed and relied upon four affidavits of 7 August 2009, 1 December 2009, 13 January 2011 and 31 January 2011.  She relied upon an affidavit of Mr W of 31 January 2011. 

13.The father’s documents were as follows.  Initially, a response to initiating application of 9 September 2009, an amended response filed on 16 December 2010, an affidavit of himself of 19 January 2011, of his father of 19 January 2011, of Ms S of 21 January 2011 and Mr R on 27 January 2011.  In the end result, his father, Ms S and Mr R were not required to give evidence.  In addition, the reports before me were a child responsive memorandum by Ms D, family consultant, of 16 September 2009, and the report of Dr T, a chapter 15 expert, of 19 November 2010.

BRIEF BACKGROUND

14.A brief chronology would indicate that the father was born in 1955 and the mother in 1962.  The parties married in 1990 in Poland.  In December 1993, H was born and in July 1999, B was born.  It appears common ground that the parties effected a separation on 28 August 2001 and, as best I can ascertain, on 15 October 2001 interim orders were made in the Federal Magistrates Court at Canberra.  On 16 December 2001 the father and children travelled to Poland with the mother’s consent. 

15.Thereafter this aspect of the matter becomes somewhat unsure.  It is clear that in early January 2002, the father indicated he was staying in Poland and asked the mother to come and collect the children.  There is dispute as to whether or not he offered to pay for the mother’s flight to come to Poland.  Nothing turns on this.  On 5 January 2002, the mother made application to the Department of Community Services to act in accordance with the Hague Convention on the civil aspect of international child abduction. Apparently, orders were made in a Polish court on 16 May 2002 for the return of the children to Australia. The father lodged an appeal of some kind. That is denied by him.

16.On 27 September 2002, an Appeals Court in Poland rejected the husband’s appeal from 16 May orders.  It is clear thereafter that following some involvement of court officers and Polish police, the parties and children returned to Australia in 2002. On 27 August 2003 they divorced.  On 14 April 2004, consent orders were made for the father to spend time with the children.  I am satisfied that on 4 May an apprehended violence order was made for the protection of the mother.  In August 2004 there was an allegation of breach of an apprehended violence order against the father which was subsequently dismissed.  There is also material to indicate to me that at about that time there was a suicide attempt by the father.

17.On 16 March 2005 an apprehended violence order was made for the protection of the mother for two years.  In December 2008, it is the mother’s allegation that the father stopped seeing the children in accordance with the orders then in place and, apart from a period in March 2009, did not see the children for nearly 12 months.

18.The father thereafter, in 2009, underwent various surgeries, finally being released from hospital in April 2009.  On 15 February 2010, in this Court, the father consented to interim orders providing that he spend time with the children as the children would wish and that the mother would facilitate the children’s wishes in that regard. 

THE HEARING BEFORE ME

19.The hearing before me took place in two parts.  In part 1, I heard the mother’s evidence in full and some of the evidence of the father.  On the second occasion, I heard from the father;  Dr T, who was interposed;  further from the father, and Mr W.  This is not a matter that, in my view, turns upon the credit of the parties or their witnesses.  However, the demeanour of the parties and the manner in which they gave their evidence is, to my mind, of real significance in this matter.

20.The mother gave her evidence in a subdued manner.  She appeared to understand the questions that were asked of her and appeared to me to be attempting to answer them in an appropriate manner.  It is her evidence that she wishes the boys to have a relationship with their father.  That statement, however, seems to be, at least in part, contradicted by her actions in the past.  I am also satisfied that the mother is unable to separate her own needs from those of the boys and that her relationship with H has become one of mutual dependence to a level that causes concern.  She has become enmeshed with the boys and they, indeed, seem to support her in what they see as a situation where she requires protection from their father.  I am satisfied that the boys’ wishes and her wishes have become effectively the same.

21.As I say, the father commenced his evidence at the end of the first part of the hearing and resumed his evidence when the matter continued.  I am satisfied that the father’s evidence gives rise to concern.  His evidence was given in an arrogant fashion.  He could not resist correcting people from time to time in relation to, for example, the pronunciation of Dr T’s name.  The exchanges between the father and counsel caused me some concern.  The father was given a number of opportunities to spend time with his sons, and particularly B, which he asserts is, of course, the main purpose of these proceedings.  Yet, given an opportunity to use Organisation D, given an opportunity to use a family consultant, he has refused or failed to follow through.

22.A good deal of his evidence on the second occasion related to why, indeed, he had not availed himself of the services offered by Organisation D.  He indicated that, having received material from them, he was suspicious and wanted to know more before he committed to having them involved.  He denied that this was a matter of cost.  He put forward that a Dr C might be a supervisor.  Dr C certainly seemed to indicate he was willing to do so, but the mother, in any event, rejected him.  The father also decided that he did not want to avail himself of time in this registry supervised by a family consultant other than Ms D, who it will be recalled the father said was simply lying when she inserted certain matters in her report.  I do not propose to dwell on those matters here.

23.It will be recalled, however, that Ms D was called and indicated that she had made her report based on her notes and her best recollection.  I am in no way satisfied that she entered any deliberate falsehood into her report so as to damage the father.  At the conclusion of the father’s evidence, I had formed the impression that he believed that he was right in all things.  As I say, he accused Ms D of lying.  He at all times believed that that which he wished to occur was the only possible manner in which the matter could proceed.  I accept that he displayed narcissistic traits, as described by Dr T in her evidence.  I further accept, as identified by her, that he has no insight as to the effect his behaviour has on others.

24.Dr T was interposed.  I certainly do not propose to set out the totality of her evidence or her report, but there are a number of extracts to which I would make reference.  At page 8, she refers to the father being convinced that if the children were introduced to the new circumstances, it would be different and he would be able to tell them that nothing was wrong and that the situation ought to be resolved between the parents.  He perceived the mother, it is reported, as putting the children in the situation in which they found themselves.

25.Further, at page 10, when dealing with the mental state of the father, she described the father as a neatly attired man, who was extremely cooperative with the assessment; he was loquacious and had to be interrupted for Dr T to ask questions, he often diverted from the subject into complaint about his ex-wife.  There were a wide range of emotions seen throughout the assessment:  anger at his ex-wife, frustration about the Court proceedings, pride in his sons and pride in himself.  I accept that as an accurate assessment on what I saw of the father.  She describes the father, in summary, as a proud, emotional man, who genuinely loved his sons and wanted to be part of their lives, but was offended and outraged by the mother’s actions through the Family Court.

26.Dr T interviewed H.  When asked about contact, he said that the decision for him to have no contact was entirely his, he believed there were no interim orders, and until there were, it would be not right for him to have contact.  He told Dr T that his parents were not right for each other and it had been tough on his mother over the years because his father stirs up a lot of trouble.  H was asked how the mother had coped since there had been no contact with the father and he described her as “breaking down, but generally she does well”. 

27.A report on B made by Dr T described that B would get used to having contact with his father alone or with H.  She described both boys appearing to be anxious in anticipating contact, but goes on to describe in the report the manner in which B appeared to enjoy the time with his father, laughing at his jokes and appearing comfortable.  Dr T says this at the foot of page 27:

What is more difficult is to predict whether the father can be reliable in any sort of regular contact.

28.She goes on to report changes that had been made by the father.  As to the mother, at page 28, she says:

On an emotional level, the mother is very tuned in to both her sons.  She listens.

29.She, Dr T, believes:

[H] has been an emotional support for the mother.

30.In respect of the father, at the bottom of that page, she reports:

The father is not particularly psychologically minded.  He adopts a patriarchal parenting style.

31.She goes on to say:

He is a poor listener and did not appear to be tuned into the needs of other people.  He tended to lecture rather than listen, and if he did ask interested questions, glossed over the answers and went on to talk about himself.

32.At page 26, she reports:

The father was furious with the mother and obsessed with discussing with her the contact situation.  He believed he could convince her that the children would be happy to come on contact with him.

33.At page 31, Dr T says this of B:

The lasting rupture to [B’s] personality has not been recognised by the father.  He showed photos of his, what he described as, traumatised children.  He is described as being a positive, cheerful boy who seemed to genuinely like his father.

34.As to family violence, Dr T says at the foot of page 32:

The mother’s refusal to talk with the father at all has snowballed the situation and made him more frustrated and angry.

35.She opines at page 33 that:

The mother may have become dependent on [H], as I have already referred to.

36.Again referring to the father, she described him as -

…self-assured and tending to talk about himself and the rich people he knew.  He spoke about an invention that he had made and -

37.She records him saying -

“In Poland, I am somebody.  I would go back there in a heartbeat if it wasn’t for these children.”

38.On seeing the boys, Dr T reports him as not being able to stop himself from talking.  Dr T, at page 34, second-last paragraph, makes it clear that she believes the father has a contribution to make to the children’s lives.  She goes on to say that her first impression was that the father is not a risk to B, although she would not trust the father not to take him out of Australia.  Those are the matters to which I would make reference in Dr T’s report.

39.Dr T also gave evidence before me, and was subjected to examination by counsel for each of the parties and the Independent Children’s Lawyer.  Dr T made it very clear that her belief remained as set out in her report.  She recommended shared parental responsibility for both boys, and she made it clear, as she does in her recommendations set out at the conclusion of her report, which I will return to shortly, that if the mother did not cooperate, there should be a change in residence.  She gave evidence the father had not been kept informed and this, apparently, heightened his frustrations.  Again, she described the father’s behaviour, and she said -

40.Sometimes lecturing, he was persistent and loquacious, and attempting to present himself as a passive person.

41.This attempt was not borne out by the manner of his delivery.  She says that she hopes that, with the litigation over, the situation between these parties will vastly improve.  She indicated that if the mother were to have sole parental responsibility that might be a strong compulsion for the mother to keep the father informed. 

42.The recommendations of Dr T are significant and of concern.

43.She makes it clear that she is of the view that there should be equal time.  There is her further recommendations as to the reversal of living arrangements in the event of the father not seeing the child, and there is a further recommendation that the father be made the subject of payment of an amount of money, and if that money is not paid, then the father’s time with the child should stop.  So far as I am concerned, these are matters of concern to me in Dr T’s report.  Whilst I have, indeed, been greatly assisted by Dr T’s report in respect of her observation of the parties, I must record that, in my opinion, to suggest that an order for a party to spend time with the child should be tied in any way to payment of money, is an order that I could not make and certainly will not make. It is an ill-conceived recommendation. 

44.A suggestion that there might be a change of residence based on the fact that a party is not given time with the child, without any other consideration, is to my mind also, with great respect, misconceived.  Whilst it may be established that the mother will not assist in ensuring the boys, and particularly B, see their father, an order to simply, and without further investigation or inquiry, reverse the living arrangements for B could not be seen to be in his best interests. 

45.A change in the circumstances in the manner that Dr T envisages would be, in my view, an order that no court would contemplate making. 

46.I am concerned that Dr T has expressed these views.  I am further concerned that Dr T has recommended that the parties have equal shared parental responsibility.  I am of the view that Dr T has largely based her view in this regard on a notion of fairness and a belief that once this matter is concluded, then there would be no difficulty for the parties coming to a position whereby an arrangement of equal shared responsibility would or could become possible. I am satisfied, with very great respect to her, that Dr T is mistaken in this view.

47.The last evidence I heard was that of Mr W who, in my view, did not particularly assist in my reaching any determination of this matter. 

48.At the conclusion of the evidence, I was left then with the opinion that the mother appeared to be overwhelmed by the father.  The father continued to present himself as someone who was determined to be proved right and to win in all respects the contest between he and the mother.

THE LAW TO BE APPLIED

49.I turn then to the law to be applied. The first of the sections to which I propose to have regard is s 61DA of the Family Law Act. That section makes it very clear that there is a presumption in favour of equal shared parental responsibility and that such presumption can be either found not to apply in the case of violence, or in the words of the s 61DA(2)-

if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child or another child … or family violence.

50.If that is made out, then I am satisfied that the presumption in favour of equal shared parental responsibility can not apply. Further, s 61DA(4) provides that:

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

51.I am satisfied that there has in the past been violence within this family such as is covered or envisaged by subsection (2).  Accordingly, on that basis, the presumption would not apply.

52.If I am wrong in that, then s 61DA(4) requires me to examine the evidence and see if I am satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.

53.To determine what is in the child’s best interests, I go then to s 60CC of the Act.  Section 60CC(2) tells me that there are two primary considerations, and they are -

the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm.

54.Those two matters impose a balancing exercise.  Whether a relationship is meaningful or not is not based on the amount of time spent with a parent. It relates, rather, to the best relationship that can be had between parent and child, having regard to the need to protect the child.

55.I would propose to expand upon this when I come to give reasons for judgment in respect of the time the father is to spend with the children, but for the time being, it must be borne in mind that that need to protect is a primary consideration. 

56.Additional considerations are set out in s 60CC(3).  The first s 60CC(3)(a) are any views expressed by the child and the factors underlying those views.  In this case, I am satisfied that the children are somewhat ambivalent about spending time with the father.  I have no doubt that the youngest child, particularly, appeared to enjoy his time with his father when observed by Dr T in the interview process.

57.However, I am also concerned that apparently he tells his mother something quite different.  I am satisfied that whilst there is a clear indication in Dr T’s report that the child would like to spend time with his father, I am equally satisfied that he wants to remain living with his mother, and he wants to support his mother and see her, in every respect, be as happy and as contended as she can be.  I am satisfied that this is a genuine wish and if the father were to in some way act against that wish, then I am satisfied that the child could, in turn, be significantly affected by it.

58.The next subsection deals with the children’s relationship with their parents s 60CC(3)(b). Their relationship with their mother is a proper and supportive relationship, subject to the findings that I have made about her difficulties in coping with the children and aligning herself to, in my view, an unhealthy extent with the children.  I am satisfied that the mother does have difficulty in identifying the children’s needs independently of her own. 

59.The father’s relationship is very difficult to define or categorise.  I am satisfied that B, particular in his presence, seemed to enjoy his father’s company and he laughed with him appropriately.  However, I am not satisfied that the father has a relationship that would immediately enable him to see the children for extended periods of time in an unsupervised situation. 

60.I take into account the next s 60CC(3)(c);  the willingness and ability of either party to facilitate an ongoing relationship with the other.  The mother has not, at any level, facilitated an ongoing relationship with the father.  She has chosen to say that the boys have not wished to go.  I am not satisfied that the mother has tried or indeed has been capable of ensuring the boys do something when it is not specifically something she would desire them to do.  However, I am not satisfied that the mother has acted maliciously in this sense.  I am satisfied, rather, that that which has occurred has occurred because of an inadequacy on the mother’s part. 

61.The likely effect of any change s 60CC(3)(d);  if the children were to find that the father was having a significant input into decisions concerning their future lives, I am satisfied that both children and perhaps, particularly, H, would be very concerned to know that this situation was in fact in place. 

62.The practical difficulty and expense s 60CC(3)(e) of time being spent with either parent is something that, to my mind, is not material to the present matter that I have to decide. 

63.Section 60CC(3)(f) which for convenience I couple with s 60CC(3)(i).  The mother’s capacity is, in my view, proven.  The children have lived with her and notwithstanding the difficulties with their father, they have, by and large, done well.  I am satisfied and record my concern that the mother appeared in the past not to ensure the children attended school on a Friday.  The father’s suggestion was that that was the day upon which he was to collect the children from school.  I find that that aspect of the mother’s capacity, as a parent, causes me some concern.

64.So far as the father is concerned, he says that he wants to see the boys so that he can, indeed, be a father to them.  I am satisfied that he has every wish to do just that.  I am satisfied, however, that his capacity to perform the function of a parent is compromised by his inability to recognise his difficulties as previously referred to and his absolute believe in his own ability to be right in all things.  These are matters of concern. To my mind they impact upon his capacity and also his attitude to parenthood.

65.These are the matters that need to be considered under s 60CC(3).

THE SUBMISSIONS OF THE PARTIES AND THE INDEPENDENT CHILDREN’S LAWYER

66.The father’s legal representative, in a careful submission to me, put that it was appropriate to allow the presumption to stand and to order equal shared parental responsibility.  It was his submission that there was no established domestic violence involved. 

67.He further indicated that it was no answer that because there was poor communication, that an order for equal, shared parental responsibility should not be made.  He indicated that both parents had difficulties, conceded the father was controlling and asserted the mother had not separated her own needs from the needs of the children.

68.He said that mistrust, particularly by the father of the mother, would be heightened by sole parental responsibility, and he indicated if the parties could not reach agreement that the way forward was by way of mediation. 

69.Both the independent children’s lawyer and the mother’s counsel submitted there ought be an order for sole parental responsibility to the mother.  The independent children’s lawyer spoke of there being no evidence of cooperation, of there being a level of distrust and a history of apprehended violence orders.

70.He particularly drew my attention to a letter that the father had written to School 1 and provided a copy to H.  This, he said, indicated that the father would not act cooperatively, apart from any other criticism that may be made of that letter.  I was also referred to the father’s demeanour as a witness and it was put to me that during his evidence, the father was dismissive, that he dissembled and that he was, to use the independent children’s lawyer’s words, “a smart alec.” 

71.Counsel for the mother submitted that equal, shared parental responsibility could not be in the best interests of the child and relied particularly on the observation of Dr T that the father failed to listen to others and had no comprehension of the effect of his behaviour upon others. 

DISCUSSION AND CONCLUSIONS

1. The father has demonstrated throughout these proceedings a fixed and unshakeable belief that the result he wants is the only correct result.  I am satisfied that he does not listen to other persons as alluded to by Dr T.  I am satisfied that he believes that in regard to any matter, his view is infallibly correct and to be followed and adopted in all circumstances.  Further, he has demonstrated that he will argue with real vehemence to achieve the result that he considers desirable.  In my view, his attempt to impose his will upon the court as to the delivery of judgment is a clear indication of his inability to perceive that anybody else’s view could be correct when it does not coincide with his own.

   73.The father, if the parties had equal shared parental responsibility, would not enter into any form of communication with the mother that would be other than him indicating to her what his view was and making it very plain that that was the view that would prevail. That would be an end to any such communication. I cannot accept the father would speak to the mother so as to try and ascertain from her her views, to then examine those views in a light that would lead to further discussions, in turn leading to a negotiated agreement.  I am satisfied to put in place an arrangement whereby the mother and father of these boys, and particularly the younger boy, have to communicate to reach joint decisions regarding their futures could only lead to his primary carer, the mother, being put under enormous pressure.

   74.I am satisfied that she would be the subject of overbearing and offensive communications from the father as to what he believed should happen.  Thus, in my view, there would be exposure by the mother to situations where the father would simply dictate to her, and belittle her, which would affect her and must have the result of affecting her relationship with both sons.  I am satisfied that independently of being affected by what they saw as their mother’s unfortunate situation, the boys, in this respect, and especially, H, would be absolutely outraged by the fact that this course of action was being adopted.  That, in turn, in my view, could only severely impact upon both boys. 

   75.Balancing these matters as best I can, I have come to the conclusion that if I were to confer equal, shared parental responsibility on these parents, it would not be in the best interests of the child or assist or be beneficial for either of those boys.  I can have no confidence the father could discuss any issue so as to reach a position not entirely in accordance with his own point of view.  I am satisfied he would persist in putting his own view forward, and that would continue until his view prevailed.  He has no concept of entering a discussion with a view to reaching any consensus.  The father would require, I am satisfied, capitulation.  He would not leave any matter in dispute until he had obtained that end.  He would not be able, in any way, let alone willingly and consciously, to see any point of view or the good in any point of view that was not his own.

   76.For that reason, I believe that requiring these parties to make joint decisions for the future of their sons, for their older boy for a short time and for their younger son for a considerable period of time is, in effect, impossible.  Notwithstanding what counsel for the father said, there was no practical or workable method of breaking any deadlock put before me.  To simply say – and I say this with great respect to counsel – that mediation was the way forward in no way recognises the factual realities in this particular case.  I can see no agreement being reached, with or without the assistance of mediation, unless the mother were to accept the father’s point of view in all respects. 

   77.To have the situation of constant conflict over matters concerning the boys would, I am satisfied, place them in the very middle of such conflict.  That cannot be in their best interests.  Further, I am satisfied that the effect would inevitably cause their mother distress as I have already endeavoured to set out. 

   78.I am of the view that it is inevitable in this case that the appropriate order that I should make is to confer sole responsibility on one parent.  The children live with their mother.  That is not the subject of any contest.  In my view, it is entirely appropriate, therefore, that the mother should have sole parental responsibility for each of the children. 

   79.There is, however, in my view, real merit in the recommendation of the independent children’s lawyer in his minute which was supported by his submissions that the mother is to notify the father of decisions that she proposes to make, and he is to have the right to respond within a reasonable period of time.  I propose to order that the mother shall give consideration to the father’s input and suggestions.  Thus, he will have the opportunity to make his position known and will have, as it were by virtue of the material that he will receive from the mother, a working knowledge of what is occurring in the boys’ lives.  However, it will be clear from the orders that I will make that the opportunity afforded to him will not be one that will lead to conflict because at the end of the day the final decision will be the mother’s solely.  

   80.I otherwise stand the issue of the father’s time with the children over for judgment upon medical material of the father’s condition being made available to me, as previously ordered.  In fact, the father’s time with the children remains an issue of real difficulty and confusion.  The father chooses not to appreciate that before I put in place long term orders for the children to see him, and in this respect, I refer particularly to B, I believe that I need to know what is happening with his state of health and what is to happen in respect of any surgical intervention that is required.  When that material is to hand as I have indicated to the point of absolute boredom, I will make further orders which involve the manner in which the father is to see the child. 

   81.It is, of course, common ground that there will be time between the father and son.  It is not an issue of whether or not there be time, but the issue outstanding is how that time is to be specifically managed.

   82.I will make orders accordingly.

   I certify that the preceding eighty-two paragraphs (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 3 June 2011.

   Associate: 

   Date: