Potts and Potts
[2011] FMCAfam 328
•12 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| POTTS & POTTS | [2011] FMCAfam 328 |
| FAMILY LAW – Parenting orders – relocation – intractable conflict – relocation permitted. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| MRR v GR [2010] HCA 4 |
| Applicant: | MS POTTS |
| Respondent: | MR POTTS |
| File Number: | SYC 5199 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 17 & 18 November 2010 and 14 & 15 March 2011 |
| Date of Last Submission: | 15 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 12 May 2011 |
REPRESENTATION
| Applicant: | Self-represented |
| Counsel for the Respondent: | Ms Druitt |
| Solicitors for the Respondent: | Marsdens Law Group |
| Counsel for the Independent Children’s Lawyer: | Mr Jackson |
| Independent Children’s Lawyer: | Robertsons Solicitors |
ORDERS
That the parties have equal shared parental responsibility for the Child [X] born in 2001.
That the Child live with the Father.
That the Father shall be permitted to relocate with the Child to the metropolitan area of Melbourne Victoria, provided that such relocation only occurs during [X]’s school holidays.
That from the date of these Orders, the Child spend time with the Mother as follows:
(a)If the Mother lives within 60 km from the Fathers place of residence:
(i)During the school term relevant to the state that the Child resides, each alternate weekend, from Friday after school until the following Sunday at 6:30 pm, with changeover to take place at the Mothers residence, and with neither parent physically approaching the other at changeover.
(ii)Except for the July school holidays, one half of the school holidays:
A.During the first half of school holidays in even-numbered years;
B.During the second half of school holidays in odd-numbered years.
(iii)For the entirety of the July school holidays
(iv)During the weekend of the Orthodox Easter in even-numbered years, from the Friday at 3.00pm until the following Monday at 9.00pm.
(v)During odd-numbered years, from 6.00pm on Christmas Eve until 6.00pm on Christmas Day.
(b)If the Mother lives outside 60 km from the Father’s place of residence:
(i)During school terms 1, 3, and 4 relevant to the state that the child resides, every fifth weekend of such school term, from Friday after school until the following Monday before school.
(ii)During school term 2, relevant to the state that the child resides:
A.For the Mother’s Day weekend, from Friday after school until the following Monday before school;
B.For the Queen’s Birthday weekend, from Friday after school until the following Tuesday before school.
(iii)The weekend of the Orthodox Easter in even-numbered years, from the Friday at 3.00pm until the following Sunday at 6.30 pm.
(iv)During odd-numbered years, from 6:00 pm on Christmas Eve until 6:00 pm on Christmas Day.
(v)Except for the July school holidays, one half of the school holidays:
A.During the first half of school holidays in even-numbered years;
B.During the second half of school holidays in odd-numbered years.
(vi)For the entirety of the July school holidays.
(vii)In relation to the contact in Orders 4(b)(i) to 4(b)(iv) inclusive, the overnight destinations of such contact is to take place within 35 km from the Fathers place of residence, and in each case, the mother is to collect [X] from her school immediately after school concludes, and then to return [X] to immediately outside the father’s home at the conclusion of contact if it is not a school day, or from the school if it is a school day.
(viii)In relation to contact in Orders 4(b)(v) and 4(b)(vi), the Father shall ensure that the Child is made available to the Mother for changeover at the airport of the Mother’s home city or hometown.
For purpose of the school holiday periods as referred to in Order 4 above, school holidays will:
(a)Commence at 10.00am on the first day following the last day of the immediately prior school term;
(b)Conclude at 10.00am on the day immediately before the first day of the following school term;
(c)The first half of each school holiday will end at 10.00am on the day following the midpoint of the school holiday period.
Whenever these Orders contemplate that [X] will travel by air for the purposes of spending time with her mother then:
(a)The Mother will notify the Father by mail or email at least 28 days before the date of travel of [X]’s travel arrangements from Melbourne to wherever the Mother lives.
(b)The Father will then notify the Mother by mail or email at least 14 days before the date of travel of [X]’s travel arrangements back to Melbourne.
(c)The Mother will pay all costs associated with [X]’s travel from Melbourne, and the Father will pay all costs associated with [X]’s travel back to Melbourne.
That whilst the Child is in the primary care of the Father, the Father shall ensure that the Child communicates with the Mother:
(a)Between 7.00pm to 8.00pm every Thursday and Sunday.
(b)Between 7.00pm to 8.00pm on the Child’s birthday
That the Mother and Father shall forthwith keep each other advised in writing of any medical appointments made in relation to the Child.
That the Mother and Father shall contact each other as soon as possible should there be a medical emergency concerning the Child whilst the Child is in their care.
That the Mother and the Father notify each other of any proposed travel by [X] outside the state of New South Wales or Victoria and the itinerary for such proposed travel including the destination, accommodation and contact details, such notification to be made in writing no less than 14 days prior to the proposed travel.
That the Mother and the Father shall notify each other of any proposed changes to their places of residence, such notification to be made in writing no less than 21 days prior to the proposed change.
That the Mother and the Father notify each other of any change in telephone contact numbers, such notification to be made in writing and within 48 hours of any change.
That within 14 days from enrolment, the Father is to authorise the Child’s school to provide to the Mother materials including school reports, and important dates for the purpose of the Mother attending school events.
That both parents be restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the child.
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
That the parties must within 14 days contact Relationships Australia on (02) 8874 8010 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment as to suitability for the Parenting Orders Program.
In making their appointment, parties are to state that their attendance is pursuant to an Order of the Federal Magistrates Court.
Parties are to cooperate with providing intake information and details to Relationships Australia and must attend the intake appointment at any reasonable location nominated by Relationships Australia and complete the assessment.
If assessed as suitable and Relationships Australia nominates counselling, mediation including child inclusive mediation or a post-separation parenting course to attend, the parties must attend (as the provider directs) as soon as practicable.
The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
Both parties to share equally the costs of the program.
If it is reasonably possible, and subject to the right of either parent to seek an order for the change of venue, or disqualification, any application about the interpretation, implementation, variation or enforcement of these orders is to be listed in the first instance before Federal Magistrate Altobelli.
IT IS NOTED that publication of this judgment under the pseudonym Potts & Potts is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5199 of 2008
| MS POTTS |
Applicant
And
| MR POTTS |
Respondent
REASONS FOR JUDGMENT
Introduction
If the hatred that the parents in these proceedings feel towards each other could be bottled, it would be an insidious weapon of mass destruction. This case is, in theory, one about the best interests of a child. In reality, it is really about harm minimisation.
[X] will be 10 years old in May this year. She currently lives with her father in Sydney, but he would like to relocate to Melbourne with [X], and her sister [Y]. The children’s mother opposes this. During the course of this litigation several witnesses, the parents included, have described the parental conflict using the analogy of a battlefield. Having heard all the evidence, I completely agree. Both parents are engaged in bitter warfare over [X], and each regard her as the prize to be won. [X] is caught in the cross-fire of her parents’ conflict. This case is about whether, and if so how, [X] might be rescued.
Background
The applicant mother is 43 years old and she works in a responsible position in the retail [omitted] industry. The respondent father is 43 years old and he is unemployed. The parents met in 1989, commenced a relationship in 1991 and married in 1992. They had a traditional Greek wedding in 1993, and both are of Greek background. In 1994 their first child, [Y] was born. She is 16 years old, lives with the father and all the evidence indicates that, at the very least, her relationship with the mother is strained, but in fact it may well be she is estranged from her mother. No orders are sought in relation to [Y] in this case.
[X] was born in 2001. She lives with her father and has contact each alternate weekend with her mother.
The parents separated in June 2008 and proceedings commenced a few months later. The first interim orders were made in November 2009 and these provided, by consent, that [X] live with the father and have contact with the mother. Sometime in January 2010 the father moved from where he had been living with both children in an inner western Sydney suburb to an outer south-western Sydney suburb. In so doing, of course, the children changed schools. The mother asserts that she was neither consulted about this change, nor notified of it until after it had happened.
In April 2010 I made further interim parenting orders to the effect that [X] live with the father and have contact with the mother. The matter was set down for hearing in November 2010.
In June 2010 there was what can only be described as an ugly incident between the parents that took place in front of both [Y] and [X] involving a water bottle. Criminal and apprehended violence proceedings ensued.
The hearing commenced before me on 17 November 2010, continued on 18 November, and then resumed on 14 March 2011 and concluded on 15 March.
It was interesting to observe the increasing level of hostility between the parents during the course of these proceedings. Their conflict increased in intensity despite the extensive involvement of various experts to assist the family both in a therapeutic and non-therapeutic capacity. Many parents seem to be able to at least moderate their behaviour during the course of proceedings before the court, probably because they are acutely aware of the scrutiny that they are under by the court, lawyers, and both treating and forensic experts. In this case, regrettably, the pending litigation did not seem to deter the parents from allowing their conflict to become even more bitter, and to be played out on the stage of various courts including this one.
The mother’s initial proposal was that [X] live with her, and have time with the father. By the penultimate day of the hearing her position had changed, and her final proposal was that there should be equal shared parental responsibility, that [X] live with the father in the Sydney metropolitan area, and spend time with the mother each alternate weekend from after school on Friday to before school on Monday, during school holidays and on special occasions. The mother’s proposal changed during the course of the evidence quite appropriately and it no doubt reflected the overwhelming expert evidence that [X] wanted to live with her father, and that this was appropriate in the circumstances.
The father’s proposal is contained in his Counsel’s case outline document. He seeks an order for sole parental responsibility, that [X] live with him and that he be at liberty to relocate [X] to Melbourne. The father proposes that [X] spend time with the mother during school holidays, any Melbourne long weekend, any public holiday long weekend, and on the Mothers Day weekend. The father’s case is, in effect, that he has a quite extensive family network to support him and both [X] and [Y] in Melbourne, and that this is a support network not available in Sydney.
By the time of closing submissions the Independent Children’s Lawyer proposed that there be equal shared parental responsibility, that [X] live with the father, and that the father be permitted to relocate to Melbourne on certain conditions. Thereafter the mother would have contact on certain weekends, school holidays, and on special occasions.
The orders sought by the mother, father and the Independent Children’s Lawyer are reproduced in Schedule A to these reasons.
During the course of these proceedings both the mother and father had periods when they were representing themselves. During the final hearing the father was represented by his solicitor and Ms Druitt of Counsel. For the first two days of the final hearing the mother was represented by her solicitor, and Mr Gruzman of Counsel. On the third day of the hearing the mother was represented by Mr Ladopoulos of Counsel, appearing on a pro bono basis and on the fourth day she appeared by herself.
[X] was at all times represented by her solicitor, Ms Robertson, and her Counsel at the hearing was Mr Jackson.
Expert evidence was given by Mr S, a social worker and senior clinician at the [omitted] Child Adolescent and Family Service, by Dr W, a consultant psychiatrist, and by Ms G, a clinical and forensic psychologist. Dr W, and Ms G were Part 15 Experts, and Mr S gave evidence as a treating clinician.
Both parents filed a formidable array of often lengthy Affidavits both from themselves, and from members of their respective families.
The issues
At a very simplistic level this case is about what order is in the best interests of [X], but as the introduction to these reasons hopefully indicates, the search for a best interests outcome is better characterised as a search for the least of the worst alternatives. I will need to consider all of the evidence by reference to the primary and additional considerations set out in section 60CC of the Family Law Act 1975. Parental responsibility is an issue, as well as the reasonable practicality of orders. Amongst the many issues that will need to be considered is meaningful responsibility, protecting [X] from harm, ascertaining her views and giving appropriate weight to them, considering the nature of her relationships with the other important people in her life, exploring issues of parental willingness to support relationships with the other parent as well as issues of parental capacity, looking at the effect of change on [X], as well as matters of practical difficulty and expense, and considering the impact on [X] of her parents’ conflict, and their attitudes towards the responsibilities of parenthood. In the circumstances of this case, framing an order that is least likely to lead to further proceedings is a great challenge.
After setting out what I consider to be the applicable law, I will examine the expert evidence, and then consider all of the issues referred to above with particular reference to the parents’ evidence.
Applicable law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(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 interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(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.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order…
The expert evidence
Mr S has been providing counselling for [X] since 2009 and at the request of the Independent Children’s Lawyer he provided two written reports dated 23 March 2010 and 11 June 2010. In addition, he gave oral evidence. The significance of Mr S’s evidence is that he was actively working with [X] for most of this litigation including, for example, when [X] and her sister and father relocated from their home which was close to the mother’s home, to an outer south-western Sydney suburb.
In his report of 11 June 2010 Mr S makes the following comments at the bottom of page one, top of page two:
[X] presented as a happy child. She spoke easily with clear affect. My assessment from this morning’s session is consistent with my conclusions from previous sessions. She presents as well integrated with her father and sister and within her peer group. She communicates with confidence and, as I have noted previously, she is highly resilient. Her response to discussion about the current contacts with her mother were almost wholly negative. She expressed her dislike of being with her mother and being at her mother’s house. She said she does not look forward to the visits. She made a number of specific statements. These are consistent with comments she has made in previous sessions. She told me “when I go to my mother’s house it is really bad”; and “I have given her [Ms Potts] lots of chances but she keeps yelling at me”; and “I am over it”; and “I don’t want to be yelled at”. I asked at the end of the session what she would like the Court to order and she said to “not live wit my mother at all” and to live with her father “full-time”. I have recounted below the content of the session in some detail.
These comments indicate a high level of detachment from her mother. She did not present negative affect in making them. She was assertive and clear. She experiences stress when with her mother. Even though [X] has good resilience this is likely to produce behavioural and emotional reactions. However there is no evidence of any emotional disorder or other mental health problem. Using standard anxiety assessments from previous sessions also did not show any evidence of these.
The obvious limitation with Mr S’s report is that he did not have the benefit of interviewing the mother. This does not detract from his evidence about [X]’s views, subject to the issues of influence that I will need to consider below. Clearly, both from the report and the oral evidence he gave, Mr S did not believe that the views that he heard [X] express were the result of some sort of influence by the father and/or [Y]. Having said this, he certainly did not discount the possibility that [X] had been influenced.
As [X]’s counsellor he was asked in cross-examination to give his views about the impact of [X] relocating to Melbourne. Firstly, he clearly indicated that this was [X]’s preference. Secondly, he said that contact between [X] and her mother must be maintained, even though the relationship is a strained one, not just because of the biological connection, but because of the history of care provided by the mother. He acknowledged the need for the father to support this contact. He described [X] as a resilient child, rather than a vulnerable child. He was not concerned about the impact of relocation in terms of reducing [X]’s time with her mother, and indeed suggested that it might result in a better quality relationship between the two of them.
When given the opportunity to comment about the existing strained contact Mr S said words to the effect:
She wants to see her mother, but when she sees her mother it is not particularly joyful. She lives with an inconsistency.
I found this to be an insightful comment, and one which is consistent with my impression of the evidence overall.
Whilst there are obvious limitations with Mr S’s report, particularly that it was based entirely on histories provided by the father and [X] without reference to the mother, it nonetheless contains some useful observations about [X]’s views, as well as her character.
Dr W provided two reports to the court, one dated 6 November 2009 and the second dated 22 October 2010.
In his first report, he records the following observation as at September 2009:
I saw the girls with the father, both in my office and also informally in the area of the office over quite an extended period of time. They seem to relate to him in a very warm and respectful way, and he was warm, responsive and appropriate with them. They did not seem to be on edge or eager to create any particular impression.
In relation to an observation between the mother and the children Dr W notes at pages 13 – 14 of his report as follows:-
I had asked both the girls about me seeing them with their mother. [X] said that she did not want to but [Y] said that she did and indicated that she would be interested in what her mother had to say (I thought that she meant she was going to challenge her mother and see how she responded). I asked [Y] if she could speak to [X] about changing her mind, which she did, but she told me that [X]’s view was still the same. Since I did not think that the assessment was going to be advanced by [Y] challenging her mother, I decided not to go ahead with this aspect of the assessment. I explained this to Ms Potts, who was a bit disappointed but seemed to understand my position.
One of the issues in this case is the nature of the mother’s relationship with both [X] and [Y] and this involves a consideration of why the mother’s relationship with [Y] was so clearly strained, as was her relationship to [X], though to a different degree. During the course of Dr W’s interview with the mother he records at page 10 as follows:-
She denied that she used to yell and scream at the children. She also denied that she had ever slapped the children or pulled their ears or was cruel to them in any way. She said that she did use to hurry them up to get them off to school, particularly [X].
[Y]’s perspective on this was somewhat different. Dr W records this at page 16 of his report:-
I asked her why she has not seen her mother since July last year. She told me that her mother used to scream and swear at them at the visits and would say bad things about their father.
… In response to a question, she said that it had been bad before the separation. She said that her mother had been yelling and swearing at them as well and was twisting their ears and told [Y] that she was going to smash her head on the wall. She said her mother was very impatient with [X] when she was getting dressed for school. She said that she used to stand up for [X] and her mother would swear at her.
Dr W then records [X]’s perspective on this at page 21:-
She had made no reference to her mother by this point so I asked her why she is not seeing her now. She said it is because her mother used to hit her. She added that there had been an incident at the beach where she had gone with her mother, and her father and some other relatives were there and her mother put [X]’s head down so she could not wave at her father and his family. She said that this caused her to cry.
I tried to bring her back to the subject of her mother hitting her. She told me that her mother took her to Queensland for two weeks over Christmas and whilst there she had hit [X] for no reason. She also said that when she was trying to talk with her father on the telephone, her mother was signalling with puppets at her. If I understood her correctly, she felt her mother was trying to distract her. She said there was another occasion on which her mother had said that her father is a dog. She said her mother also calls her a liar and hides the telephone.
In relation to the strained relationships between the mother and the children Dr W concludes as follows at pages 24 – 25 of this report:-
Overall I formed the view that the most likely situation was that there had been at least isolated incidents of the type of verbal outburst that [X] described from her mother, if not more frequent, and that one factor has been that these have driven her away from her mother towards her father who seems to have quite a different disposition for much of the time, although I have no doubt that he can be roused to verbal anger as well.
While I think it is going to be difficult to take active steps to repair [Y]’s relationship with her mother, apart from perhaps a change of behaviour and of heart by Mr Potts, I do think that there is some prospect that [X]’s relationship with her mother may be able to [be] repaired. There are probably several aspects of this. Firstly, a genuinely affirmative stance by the father towards contact, secondly, even handed professional counseling [sic] and support of [X] and thirdly, counseling [sic] with Ms Potts to assist her to communicate with her daughter in a more effective way.
Dr W concluded that [Y] and [X] have a good relationship which was appropriate to their age difference. [X] looks up to [Y] and she is probably influenced by her sister’s views. He was of the view that the children had a very content and secure relationship with their father. Dr W acknowledges that he did not have the opportunity to observe the quality of the relationship between the girls and their mother as he had formed the view that if he had brought them together, all he would observe was conflict and possible outright rejection of the mother by the girls, or ignoring of her.
In relation to the views of the children he noted [Y]’s strong wish to spend no time with the mother. In relation to [X] he reports as follows at page 25 of his report:-
[X] indicated that she wants nothing to do with her mother. She gave what I think was probably a highly selective account of the time that she spent with her mother, making a clear distinction between any pleasure that she might experience being associated with others who were present and not liking her mother at all for a variety of reasons including that her mother yells at her, swears at her and calls her a liar. She was not even able to concede that she had selectively slept with her mother when she was there, or that she enjoyed going to the three theme parks in Queensland, although she had spoken about them with a certain amount of ingenuous enthusiasm. I would also note that she tended to make fairly general criticisms of her mother and specific instances did not seem to stand out in her mind with the degrees of clarity a child of this age and intelligence should be able to marshal.
This is the type of account which is often given by children whose negative view of a parent has been reinforced by other family members and which is based at least as much on that as it is on any particular misbehaviour by the parent, if not almost entirely so. In addition, the account was given in an earnest, somewhat dispassionate way. This was associated with indignation much more than with feelings of shame, pain, fear etc. coming to the surface again, as one would usually expect in deeply distressing instances described by a child of this age.
If it is the case that Mr Potts is playing a divisive role, his presentation to me and my observation of his interaction with his children suggests that this has happened in a fairly subtle and non-confrontational way and as such, it will be difficult to see the effectiveness of his influence being modified unless there is a dramatic change of heart on his part.
The above passage quite correctly identifies a major theme in this case and that is the extent to which the father has influenced [X]’s views, and has contributed to the negative view she may hold about the mother. This was clearly a fundamental part of the mother’s case against the father. What I found to be of concern in November 2009 was Dr W’s quasi-pessimistic observation about the difficulty of reversing the father’s influence without a dramatic change of heart on his part. As it turns out, the evidence overall leads me to conclude that the father lacks the capacity to do this.
Dr W was asked to specifically comment on the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent. Dr W expressed his views at page 26 in the following terms:-
This is obviously the core of the mother’s case in relation to the father. I formed the view that although the mother’s perceived and actual conduct has probably played a part in driving a wedge between she and her daughters, the father’s superficially rather benign manner has nevertheless fostered the children’s alienation from her and that he may have taken more deliberate steps to undermine their relationship with their mother. …
The mother’s capacity to support the girl’s [sic] relationship with their father has not really been tested since the separation, although it appears that she relied [on] his support during the marriage. She also appeared to be less beholden to the children’s perceptions and more likely to form an independent view of their best wishes, which usually would predict a greater willingness to support their relationship with their father.
Dr W found both parents to have acceptable parenting abilities “beyond those reflecting their views on the other parent”. He also specifically commented on the impact of change on the children, especially associated with relocation to Melbourne. At page 28 he said:-
The major chance of circumstances in this case would flow from the father being permitted to relocate to Melbourne. I doubt whether this would adversely affect [Y], but I am concerned that it would be an additional impediment to [X] reviving her relationships with her mother.
It is also possible that orders could be made which place the girls in different homes. I felt their relationship was too strong, and too important to [X], to support this.
Finally, I am not of the view that [Y] would be able to live with her mother at this point. She has been closer to her father than her mother for a number of years, and now views her mother in rather contemptuous terms.
Dr W viewed the relocation to Melbourne as an impediment to [X] reviving her relationship with her mother, an interesting way of reflecting on the nature of the relationship that presently existed.
In September 2010 Dr W saw the family again for the purposes of preparing his report dated 22 October 2010. In addition to all of the evidence that had been accumulated by that stage in the proceedings he also had reports from Mr K, a registered psychologist who had been working with the family, as well as the reports of Mr S and Ms G. He also had evidence before him relating to many of the incidents that occurred between the parents in the intervening period, including the water bottle incident.
The report of Mr K is not otherwise in evidence before me so I am forced to rely on what Dr W said in his report about this. I intend to reproduce this in the reasons as it contains, in my opinion, some quite valuable observations of both parents which are clearly borne out by the evidence before me. Dr W deals with this at pages 2 – 3 of his report:-
I note the report of the Family Consultant Mr K dated May 19th 2009. This report had not been provided to me prior to my initial assessment. I have now seen that report, which I note primarily addressed the therapeutic needs of the girls. Mr K saw the family members for a total of 11 hours in sessions between January 13th and February 27th 2009, including spending three hours with each of the girls. I note that his conclusions largely concerned the girls, however he also expresses certain views about the parents.
I note that he was of the view that Mr Potts’ “thoughts were organised around feelings of victimisation and his difficulty protecting himself and the children from his ex-wife, whom he portrayed as dangerous and exploitative. In this respect, his thinking was relatively fixed, and the associated anxiety limited his capacity to attend to my enquiries. He showed limited insight into his contribution to his problems with his ex-wife, and has a limited capacity to distinguish his needs from the needs of his children…(However) despite his initial suspicions, he did acknowledge the benefit of the children seeking therapeutic help and does appear willing to support this.” He also noted that “despite the limitations observed with Mr Potts’ narrative and presentation, not withstanding the limited evidence available, he appears to be a committed and sufficiently stable parent to ensure the children are raised in a consistent and caring environment. His children independently corroborated this view.”
In relation to Ms Potts, he noted that “her demeanour was timid, vulnerable and flirtatious. She spoke rapidly and with intense and dramatic affective shifts, disrupting the flow of the interview and her ability to attend and concentrate. Her mood was highly anxious and labile throughout, with intensely felt distress, anger and confusion. Her thinking was organised around her sense of victimisation at the way she had been treated and portrayed….her difficulty managing her distress and anxiety precluded further exploration and clarification of her difficulties. This limitation appeared to be a significant barrier to her capacity for empathy in relation to her children and her reflective capacity. Her reflections on her children…Her insight was also poor. These factors suggest her capacity to prioritise her children’s needs over her own and her capacity to engage in a helping relationship are limited”. He also noted in relation to parenting that “she gave a superficial account of her marital problems and her problems with her children….The scant history that [Ms Potts] provided suggests that she experienced difficulty bonding with both [Y] and [X]. The observed regulatory deficits suggest difficulties with her own pre-verbal development, also implicating her caregivers. Her capacity for affect regulation and attunement, as well as her capacity to maintain relatedness and an integrated sense of herself and others under stress appear significantly compromised. …..(Her) narrative was assessed as being overly simplistic and her manner was highly defensive. …(Her) descriptions of her children as newborns and as toddlers were superficial and self-referential. She impressed as a mother who does not know her daughters very well and who has related to them more or less as a narcissistic extension of herself”.
He also expressed that both girls’ accounts of their mother were consistent with this presentation and he was concerned about [X]’s wellbeing in her mother’s care. He also expressed a comparatively more favourable view of Mr Potts’ parenting abilities and that the girls had significantly more trust in his parenting abilities.
Obviously Mr K’s observations need to be considered carefully in circumstances where they are incorporated through Dr W, and where his evidence is not tested. Certainly I could not base findings on it. What I am able to say with confidence is that after hearing all of the evidence in this case Mr K was clearly correct in two observations. He was correct in observing that the father showed limited insight into his contribution to the problems with the mother and has a limited capacity to distinguish his needs from the needs of the children. In addition Mr K was correct in observing that the mother’s limitations, howsoever they are characterised, were a significant barrier to her capacity for empathy in relation to the children and her reflective capacity. His observations that the mother’s insight was poor is also clearly correct.
Dr W was again able to observe the parents and the children. He observed the father and the girls in the waiting room on a number of occasions over the course of the morning. He observed that the girls related warmly, respectfully and appropriately with their father. He did note that [X] tended to be a little clingy with the father, but less so than when he first saw them.
In relation to the observation of the mother and [X] he notes at page 9 as follows:-
[X] had spent nearly an hour with her mother elsewhere in the complex. She had shown no hesitation in accompanying her mother and had greeted her reasonably affectionately, but on the other hand she had not shown any great enthusiasm. I formed the view that had I given her the option of not going, she probably would have accepted that.
On their return, [X] and her mother sat beside each other. Although Ms Potts tried to establish a dialogue with [X] and have eye contact with her when they were both talking with me, [X] generally averted her eyes. She rarely initiated any discourse with her mother. Although she was polite throughout, there was little animation to her presentation and she showed no enthusiasm at anything apart from several references to some activities at her father’s home. I ascertained that [X] had not had a snack with her mother, although Ms Potts did have something to eat.
[X] seemed so lacking in interest in elaborating on the events of the previous three quarters of an hour with her mother that I quickly moved on to the subject of their plans for the upcoming school holiday week.
Dr W met with [X] and he states in this regard at page 15 of his report:-
I spoke to [X] by herself. She separated from her father without any hesitation. She spoke quite clearly and spontaneously. She seemed a great deal more confident than when I last spoke with her, although it was still evident that she is a child with a fairly shy and quiet demeanour.
…
She explained the current arrangements for seeing her mother. Although she was aware of there being two different weekend arrangements, she did not described this as an alternating cycle and seemed to see it more as a random arrangement.
I asked her how she felt about the current arrangements. She said that she does not feel too good about it. She said that she has always wanted to live full time with her father but when she has told people about this, they don’t listen to her. She explained that by full time she meant 100% and not spending any time with her mother. She also indicated that she wants to go to Melbourne. She said that they have no cousins here and all their father’s family is in Melbourne. I asked whether she would miss friends from school. She indicated that they were far less important to her than cousins and other relatives. She went on to speak with some enthusiasm about talking with family in Melbourne by telephone.
In relation to whether [X] had any physiological, psychological or psychiatric issues that need to be addressed Dr W says at page 19- 20:-
[X] certainly seems to be in a much better frame of mind than when I saw her 12 months ago. She is no longer soiling and there were no reports of thoughts about being dead or notably oppositional or irritable behaviour. She still has nightmares and she still comes into her father’s bed occasionally and sleeps with her mother on a more regular basis, but other manifestations of clinging behaviour are largely absent. She appeared to be a lot happier and more confident, and this had also been observed by both her parents and her sister. In my view this is an indication of an improved sense of wellbeing which I think is partly because she is exposed to less hostility between her parents, and possibly partly because she is happy about spending regular time with her mother, although she will not reveal that. In relation to the latter, I note that she chooses to sleep with her mother, although she dismisses any affectionate interpretation of this.
I found it interesting to note that Dr W thought that there might have been less hostility between the parents over the 12 months preceding his report. That is not my impression of the evidence overall.
Dr W noted that [X] and [Y] continue to have a strong relationship, that [Y] is quite protective of [X], and that he believes [X]’s views are influenced by her sister’s views. Both girls continue to have a contented and sound relationship with the father.
Dr W reports about his observation between [X] and the mother that [X] was “fairly reserved” and “occasionally mildly oppositional in that she contradicted her mother on several occasions”. He noted that she showed no affection towards her mother or enthusiasm about anything they had done together. He goes on to say at page 21:-
In my first report I refer to [X] possibly being torn by a conflict of loyalty between her parents, or that her father had undermined her relationship with her mother, or that her somewhat tense relationship with her mother is a consequence of inappropriate behaviour by her mother. It is difficult to accurately appraise which factor plays the largest part, although I think there is a possibility that all three may play a role. I note however that I doubt whether fear of her mother is the entire answer because she would need to be a fairly fearless child to be as obstructionistic and oppositional as her mother alleges if she thought that her mother was going to react as violently as has been alleged. Indeed this pattern is more characteristic of a child who has an ambivalent relationship with one parent where the other parent has a strong antipathy towards the first parent as well.
In my earlier report I expressed pessimism that [Y]’s relationship with her mother was likely to be repaired, and the events of the past 12 months seem to bear this out. However there does appear to be some progress in repairing [X]’s relationship with her mother, although the progress has been both slow and only partial. While I think that further positive progress can occur, limiting factors to this include firstly how volatile Ms Potts used to be towards [X] and the extent to which [X] recollects this, and secondly how involved Mr Potts and [Y] remain in [X]’s attitude towards her mother. In respect of the latter, I remain concerned that Mr Potts’ attitude towards his ex-wife remains abundantly clear to both girls.
Dr W states at page 22 of his report that he believes even before the end of the relationship the girls had a stronger and more secure relationship with the father, with whom they had probably been more intensely emotionally involved and could rely upon more than their mother. Dr W acknowledges that this comment is based not just on his own observations and investigation but was also based on Ms G’ report.
In relation to [X]’s views he says at page 23:-
[X] still does not want to spend time with her mother and would prefer to move to Melbourne with her father and sister. She has clearly stated the same thing to Ms G and Mr S in the last 12 months. The reasons that she gave me on this occasion revolved primarily around the events of the past 12 months and were significantly less graphic than her account at my initial assessment. I also felt that there was a subjectivity to these reasons which significantly reflected the prevailing attitude in the father’s home.
Also on page 23 he makes the following observations about the girl’s relationship with their mother:-
I note that there has been another incident between Mr and Ms Potts which was witnessed by both girls has led to charges of assault against Ms Potts. Mr Potts continues to be of the view that he is in mortal danger from his ex-wife. For reasons which I have expressed elsewhere, I found this hard to accept at face value, and I also formed the view that neither girl perceives their mother in those terms because of the assertiveness with which they stand up to her. However the rhetoric of this fear does affect their attitude.
This becomes quite significant because the father’s case was, at least to a substantial degree, based on what he perceived to be a risk of harm to the children, both physical and emotional, whilst in their mother’s care. Dr W seems to be saying that the fact that both children stand up to their mother contra-indicates any genuine basis for any fear that is asserted to exist.
Dr W remained of the view that if the father was permitted to relocate to Melbourne, [X]’s relationship with her mother is unlikely to be sustained. Whilst he did not believe that there was a risk of harm or abuse to [X] in her mother’s household, he nonetheless acknowledged that the situation in which [X] finds herself is quite emotionally traumatic as she is in the midst of an extremely intense conflict between her parents. Interestingly, he concedes at page 25 of his report that if it is the case that both parents are equally intransigent and insightless, as indeed Ms G suggests, then “it may well be the best option for [X] is to remove her from a situation which is not going to change in the foreseeable future”.
Both the above matters are significant issues and Dr W was given the opportunity to expand. In relation to his concerns that [X]’s relationship with her mother was unlikely to be sustained after relocation, Dr W made a number of points. Relocation would involve less frequent contact which is in itself is problematic. The travel may well mean that [X] finds it more difficult, and thus becomes resentful. The longer the period of time between visits, the more arduous it could become for [X]. Moreover, she would be living in a discouraging atmosphere where neither [Y] nor her father could be relied on to support [X]’s relationship with her mother. In addition, as [X] approaches her high school years she will start to assert her own views more often. This was a time when typically, alienation crystallises. Dr W thought what was likely to happen was that contact could be built up over a period of six or 12 months, and then eventually stop. He agreed there are also economic factors associated with the costs. He thought it was probable that the relationship could not be sustained, rather than merely possible.
He was concerned that [X] would be moving to a potential environment where her father’s hatred of her mother was emulated by the father’s family. Whilst these are not Dr W’s words, I formed the impression that he was saying that in these circumstances, the toxicity in the parental relationship could in fact become even more intense.
However, Dr W also acknowledged that the reduction of contact that would come with relocation brought with it certain benefits. He reiterated in oral evidence that if the Court formed such a bleak view about the capacity of the parents to focus on [X]’s interests such that any contact between them gives the opportunity for increased conflict, then in those circumstances the relocation amounted to the least worst result. He emphasised that he did not recommend this, but he acknowledged that “it is a bleak possibility”. He acknowledged that if both parents were left to their own devices, they could operate as reasonably competent parents.
In oral evidence Dr W repeated some of the somewhat strong language used to describe the parents in his report. He described the relationship between the mother and father as one in which they “battled for control” while they were together, and so after separation they had to “battle over something else”, namely [X]. He acknowledged that both parents were capable of talking about [X]’s interests, but were in fact selfish. He described this particular case as being amongst “the really tough ones”. He found it difficult to be optimistic about the prospects of therapy, given the nature and extent of therapy that had already been undertaken, but failed. He emphasised that it was not in the best interests of [X] to be separated from [Y], and it was clearly not an option that she live with the mother. Whilst [X] has articulated the view that she wants to move to Melbourne, his view is that [X] doesn’t want it as strongly as her father and sister does and that “there is an affiliation with her mother that she values, but cannot make explicit”.
Dr W was invited to consider whether the end of the litigation would result in the end or reduction of the conflict between the parents. He explained that generally conflict does subside after the end of litigation, that it was not inevitable, and that he would not be surprised if it continues in this case as there would always be small issues in respect of which the parents can have very large disagreements. He was clearly concerned about the father’s negative views towards the mother but was pessimistic about the father’s capacity for change. Dr W was made aware of the father’s evidence that in his belief, in a perfect world the best outcome for [X] would be no contact with the mother. Dr W described this as “the father’s self-centred perfect world”. He acknowledged that the father had little capacity to foster a relationship between [X] and her mother, but he hoped that he had the capacity to at least not sabotage it.
In cross-examination by Counsel for the mother however, Dr W was quite resolute in rejecting as an option that [X] live with her mother, or even that there be a shared care arrangement. He describes the mother’s attachment to [X] as “anxious ambivalent”. He referred to the communication between the parents as “extremely dramatic discourses”.
I found Dr W’s description of the mother and the father to be powerful, compelling, and broadly consistent with the evidence. If anything, Dr W has underestimated the toxicity in the relationship between the parents. The palpable level of hate between them observed in these proceedings is, fortunately, not always apparent in cases before this Court. Indeed, it may well be that the bleak, worst case scenario to which Dr W hinted is in fact the least of the worst alternatives on the facts of this case.
Ms G was originally engaged to work with the family in family therapy, but subsequently became a Part 15 Expert with the consent of the parties. Her report is dated 9 October, 2010. At the commencement of her report she states:-
During the initial sessions with the parents the process of family therapy and the aim and goals that were to be achieved, was fully outlined. It was emphasized [sic] that the ultimate aim of the family therapy would be for the parents to attempt [to] resolve the conflict evident since their separation, and reach a more co-operative arrangement in parenting their daughters. I note both parents agreed and expressed the desire to co operate for the sake of their children.
Notwithstanding these noble intentions, Ms G notes at page two of her report:
From the outset it was obvious that the parents adopted extremely inflexible and hostile reactions to each other.
Ms G described the father in the following terms at pages 3 – 4 of her report:-
Mr Potts: The father attended all sessions arranged on time and presented as a man who was aggrieved by what he perceived as the unfair treatment he and his daughters had received from the courts. He continually emphasized [sic] that neither [Y] nor [X] wanted to spend time with the mother whom he continues to describe as dangerous, abusive and mentally unstable. He feels the current situation whereby he is forbidden from relocating to Melbourne with his daughters is unreasonable and punitive for them and blames the mother entirely for the situation.
Initially Mr. Potts expressed the willingness to engage in therapy with the mother with the view of reaching an arrangement that would be beneficial to their daughters. He insisted he was genuine in this, but was equally certain that Ms Potts would attempt to manipulate the situation to her advantage, as she did not care for the welfare of their daughters and was only interested in being vindictive and destroying him.
It became obvious that despite his expressed desire to be co operative, Mr Potts was inflexible in his view of the situation and had little intention or desire to compromise in order that the situation could be resolved. Essentially Mr. Potts feels strongly that ongoing contact between [X] and her mother is detrimental to the child’s emotional and psychological stability and should cease immediately. His opinions and attitudes towards his ex wife have become even more hostile and he is determined that the children’s safety can only be ensured if all contact with the mother ceases permanently.
In relation to the mother the report of Ms G states at page 4:-
Ms Potts also attended all sessions on time and impressed as a woman who was determined to have [X] placed with her permanently and spending alternate weekends with the father and [Y]. She continually emphasized [sic] that both children had been “brainwashed” by the father and that this continues now. She was optimistic that recent court decisions had been favourable to her and felt that [X] would be placed with her in the next court hearing. She expressed the desire to mend her relationship with [Y] but was not certain this would happen anytime soon.
Ms Potts conceded that [X] was distant and, at times, hostile during the time she spend with her, but the mother always blamed the father for this and maintained it was merely the result of the child being brainwashed by the father. Ms Potts continued to emphasise she had been a caring, affectionate and loving mother to her daughters and a good wife to her husband, but he created all these problems because of his jealousy and desire to control her. When confronted with the children’s accounts of her being verbally and physically abusive to them Ms Potts agreed she had yelled at them and was verbally abrupt during the time leading up to the breakup of the family, but blamed the father again for turning the children against her.
Essentially Ms Potts does not accept that she has contributed to the unhappy relationship between herself and her children and blames the father entirely for the current situation. She expressed sentiments that are indicative of viewing the situation as a battle between her and the father and one that she is determined to win. For example she was convinced she was now “on a roll and I would get [X] at the next court hearing and then [Y] would follow.” When it was pointed out that [X] has continually stated she did not wish to spend so much time with her mother and would not agree to live with her permanently, Ms Potts dismissed this as merely a further example of the child being brainwashed by the father, being terrified of him and thus repeating what he has directed her to say.
Ms G concludes that:
Overall the situation between the parents has become even more hostile and conflictual …
Ms G of course also interviewed the children. In relation to [Y] she says at page 5:-
[Y] impresses as an attractive, intelligent and articulate adolescent who was co operative and pleasant during interviews. [Y] continues to express hostile attitudes towards the mother and has steadfastly refused to have any contact with her. [Y] maintains she has vivid recollections of her mother being verbally and physically abusive and violent towards her and [X] and neglecting them. [Y] describes her mother as a selfish woman who did not care for them and was only interested in herself. [Y] blames her mother solely for the breakdown of the family and for not being able to relocate to Melbourne to be closer to her paternal family.
In relation to [X] she notes at pages 5 – 6:-
[X] presents as a charming young girl who was pleasant and co operative [sic] during interviews. She engaged in conversation easily and was able to express her opinions in a clear and concise manner. [X] insists she does not enjoy spending time with her mother and her maternal grandmother, as she does not feel comfortable or safe there. She claims she recollects her mother yelling at her and [Y] and hitting them with a wooden spoon and, although she does not hit her anymore, [X] is still afraid of her as she still yells at her.
[X] said she does love her mum but not as much as her dad. She misses spending time with her sister and dad and participating in weekend sporting and other activities that they share. She claims her father is fun to be with, helps her with her homework and they do activities together. She feels safe and comfortable with her father and [Y] but not with her mother and maternal grandmother.
Finally [X] mentioned she felt more unhappy lately as her mother follows her around with a camera recording everything she did. [X] said this made her feel very uncomfortable and wanted this to stop but was afraid to tell her mother in case she yelled at her. Generally [X] stated repeatedly she hated her visits with her mother, did not feel happy or safe there, misses spending time with her father and sister and would like to move to Melbourne with them in order to be near her parental family.
In her assessment Ms G states as follows:-
The relationship between the parents … has become very acrimonious and both have lost perspective of the real issues in this matter ie the welfare of the children, particularly [X]. Notwithstanding that both would claim otherwise, the conclusion is that they lack insight and refuse to accept responsibility for the current situation.
This theme of lack of insight is continued in other parts of the report. At page 7 Ms G notes that she believes that both parents:
attempted to manipulate the process to advance their own goals and gain an advantage over the other.
Neither parent had any understanding of the impact of the conflict on their children. She too found that [Y] and [X] have a very close and affectionate sibling bond.
In relation to [X]’s views, Ms G felt that she was unequivocal in stating that she did not want to spend so much time with her mother, was not happy there, and wanted to relocate to Melbourne with her father “in order to be near their extended paternal family”. At page 8 of Ms G’ report the following comment appears:-
As a final comment [X] looked very solemn and rather sad and said “could you please make sure you tell the judge I do not want to live with my mother, I love dad and [Y] and will be very sad to be away from them”.
Ms G concludes at pages 8 – 9 as follows:-
It is evident that the relationship between Ms Potts and [X] has not improved at all. At best it remains ambivalent and unhappy. If the purpose of these orders was to allow the mother to mend her relationship with [X], then this has not eventuated. The child continues to reiterate she does not wish to spend time with her mother and that the current orders are not in her best interest. My observations of [X] since I have been seeing the family are that the child is genuinely unhappy and the current system is placing unreasonable pressure on her. Both parents are totally consumed by their hatred and anger at each other and fail to appreciate the impact this is having on a vulnerable child such as [X] who is expected to take sides and please one or the other. This is unfair on [X] and should not be allowed to continue in its present form.
Ms G makes a number of recommendations for the interim period until the final hearing, and these recommendations provided for [X] to remain living with her father and sister but to spend time with the mother each alternate weekend from Friday afternoon to Sunday afternoon. It should also be noted that Ms G, like Dr W, categorically rejects the father’s assertions that the mother is dangerous, mentally and emotionally unstable, and that she presents a risk to [X].
In cross-examination the focus was on ascertaining Ms G’ views about the potential impact of relocation on [X]. Firstly, she indicated that in her belief [X] was not under pressure to express any views to her, and this applied to her wish to move to Melbourne. She acknowledged that this would be a change in lifestyle, but perhaps not as great as [X]’s more recent relocation with her father to the outer south-western Sydney suburbs. This was primarily because she would have an extended paternal family in Melbourne, as well as access to a large and closely-knit Greek community down there. She acknowledged that there was a risk that the father would not promote [X]’s relationship with her mother. In this regard she said words to the effect:
to not have contact with the mother is not a pleasant outcome, but these children are resilient. They would seek out a relationship with their mother.
It is interesting to note that Mr S also described [X] as being resilient. Ms G felt that there was an established bond between [X] and her mother which might even survive a period of no contact.
Ms G described the conflict between the parents as one in which each parent had their own agenda and that
[X] was a prize for the winner, and it was winner take all.
The manifestations of this were apparent on both sides, with the father’s unilateral actions in moving, the mother taking notes and recording on camera what [X] says and does. In short, each was collecting evidence. Ms G was somewhat more optimistic that the end of this litigation might assist in the rehabilitation of [X]’s relationship with her mother – to use her words: “they will have a better chance”. They agreed that the father lacked child focus and that his focus was to win. She felt that therapy was not going to assist as long as either parent maintained their competitive stance.
She agreed that [X] would feel pressured and frustrated if relocation were not permitted. Ms G could see the benefits of relocation given the toxic relationships in the family and acknowledged that in the longer term both [Y] and [X] might have a stronger opportunity to recommence their relationship with their mother. She could see distinct benefits in allowing relocation and distinct disadvantages if it were not permitted, particularly if the parents are unable to change the nature of their relationship. However, the mother was not dangerous to [X], though [X] was as much a winner’s trophy for the mother as she was for the father.
In cross-examination from Counsel for the father, Ms G acknowledged that if relocation was not permitted, [X] would probably blame her mother at least in part, and this would contribute to the further deterioration in their relationship. Thus, for example, even if she remained in Sydney there was a possibility of her resisting future contact. There was indeed, a risk of intensification with the deteriorating relationship between the mother and [X].
I found Ms G to be an impressive witness, whose insight into the characters and conflict between the parents seemed to more closely correlate to the impressions I have formed on the evidence. I formed the view that Ms G believed that not allowing relocation was an even bleaker prospect for [X] and this family than allowing it. There are risks to maintaining [X]’s relationship with her mother whether relocation is permitted, or not permitted. On balance, I formed the impression Ms G felt the risks were actually less from [X]’s perspective and the prospects for an ongoing relationship with her mother were stronger, if relocation were permitted.
Meaningful relationship
In the circumstances of this case, section 60CC(2)(a) is an aspirational statement. [X] enjoys a meaningful relationship with her father but not with her mother. To describe [X]’s current relationship with her mother as meaningful would be to strain to give a meaning to that term. Even on the mother’s own evidence, [X]’s time with her is difficult. The existence of this intense parental conflict makes it almost impossible for both mother and child to have the meaningful relationship that one would hope they actually crave, but are not able to consummate. As Dr W poignantly stated in evidence, there is an affiliation with her mother that [X] values but which she cannot make explicit. My impression of the evidence is that the reverse is equally true. If only the mother could let go of her hatred for the father, she might have the hands with which to embrace a meaningful relationship with her daughter.
I am satisfied that on the mother’s proposal with [X] remaining in Sydney, the best case scenario is that [X]’s meaningful relationship with her will not deteriorate. On a more realistic case scenario, having regard to the expert evidence I have heard, and based on my observations of the mother and father in their evidence, [X] would become even more resentful of her mother and increasingly resistant to contact. Rightly or wrongly, she would blame her mother for not being allowed to go to Melbourne and [X] would, consciously or unconsciously, be the conduit for the collective frustrations of the father, [Y] and [X] to be vented on the mother.
On the father’s proposal, the best case scenario is that the distance created by the move and the reduction in the frequency of contact actually provides the opportunity for an increase in the meaningfulness of [X]’s relationship with her mother. The worst case scenario, if I accept the father’s proposal, is probably no worse than the worst case scenario if I accept the mother’s proposal, i.e. that [X] will lose all contact with her mother, particularly as she becomes more independent, partly through [X]’s own decision, and partly through her father’s subtle and not so subtle intervention.
In a case where there are so few alternatives, and hardly any good ones, the best of the worst alternatives is to allow relocation on the basis that it actually offers the best chance of a meaningful relationship between [X] and her mother.
Protecting the child from harm
It was the father’s case at all relevant times up until closing submissions that there was a risk of harm if [X] spent time with her mother. The father’s case was that there was the risk of physical harm as well as psychological harm. I categorically reject that there is any risk of physical violence, abuse or neglect of [X] whilst in her mother’s care. The father advanced no cogent evidence that would suggest that there is a risk of harm in this regard. The evidence that he relied on was, at its highest, concerns about inappropriate and excessive punishment, but it fails to cross the threshold into evidence of risk of harm in the future, particularly given [X]’s age and increasing capacity to self-protect. In any event, both Ms G and Dr W rejected the father’s concerns in this regard.
However, the expert evidence in particular, as well as the parents’ own conduct in these proceedings, amply demonstrates the risk of psychological harm to [X] as a result of being exposed to her parents’ intractable, uncontrollable parental conflict. Despite the evidence that [X] is a resilient child, one must be concerned about the capacity of even the most resilient child to withstand a continuation of the level of conflict that has been observed in this case. The mother’s proposal does nothing to address this concern and only creates a breeding ground for its continuation. The father’s proposal at least creates some distance and the possibility of a reduction in conflict. Ms G certainly thinks it could help. Even Dr W’s acknowledges that in the bleakest of scenarios it might be the best option. I conclude that in terms of protecting [X] from the risk of psychological harm which is associated with her continuing exposure to her parents’ conflict, the father’s proposal offers the most hope.
[X]’s view
There is plenty of evidence to indicate that [X] does not wish to live with her mother or to spend even more time with her mother and that she does wish to go to Melbourne. The concern I have is about the weight to be placed on these views. I formed the impression that [X] clearly impressed Mr S, Dr W and Ms G as being quite an intelligent and articulate girl. However, the circumstances of this case clearly indicates that she is under the influence of both [Y] and the father. For her own reasons, [Y]’s relationship with her mother is dysfunctional and she wishes to go to Melbourne. [Y] probably does not understand the potential adverse impacts on her sister of absorbing [Y]’s views, but they are real nonetheless. The father is far less innocent in this regard. He has allowed his hatred of the mother to become apparent to [X], in both subtle and not so subtle ways. I do not accept the father’s denial about not influencing [X] or denigrating the mother in her presence. He was a less than impressive witness who was often unresponsive in cross-examination.
In these circumstances, even though I note that [X] has expressed certain views, I would not be prepared to decide this case by reference to them because of the risk that she has been influenced by her father in particular. In any event, even if I did not have such views about the father’s influence on [X]’s views, I would certainly not let [X]’s views be the determining factor in a case like this. This places far too much pressure on her in terms of the consequences.
[X]’s relationships
[X]’s relationships with both her father and her sister [Y], are strong and positive, except insofar as her father exposes her to his toxic views about the mother. [X]’s relationship with her mother is much more problematic. Dr W referred to the anxiety that she feels about her mother. All of the experts spoke in terms of a broken relationship that needed mending or healing. However, as all of the experts acknowledged, there remains a strong biological relationship between [X] and her mother as someone who has provided a high level of care at least until the later years of the relationship when it started deteriorating. However, it seems from the expert evidence, that even before the hatred between the parents became entrenched and embodied in the litigation, there were problems in the relationship between both [X] and [Y] and their mother, which were described by Mr K, and adopted by Dr W.
[X] once had good relationships with the maternal family and family circle, but these appear to have suffered since the separation. I am satisfied from the evidence that [X] once had a very good relationship with the maternal grandmother, but this relationship has also become a victim of the parental conflict. One can only hope that time will repair this. There is evidence of [X]’s good relationships with the paternal family including grandparents, aunts and cousins in Melbourne.
The irony in this case is that the evidence indicates that if I accept the mother’s proposal and do not allow [X] to relocate with her father to Melbourne, it is the mother’s own relationship with [X] that is most likely to suffer a further deterioration. In these circumstances, the father’s proposal for relocation becomes more child-focused.
Willingness and ability to facilitate and encourage relationships
In a case like this where the level of conflict is so high and the nature of the communication between the parents so destructive, this particular consideration takes on a new dimension. On balance, I am satisfied that the mother is willing and able to facilitate [X]’s relationship with her father in the circumstances of a case where, on her proposal, [X] would be living with her father. As for the father, his own evidence is what condemns him in this regard. He agreed that in an ideal world [X] would not have any contact with her mother. His insistence about concerns for [X]’s safety in her mother’s care, totally inconsistent as it is with his own stated position for [X]’s contact with the mother, is just another example of his real position of opposition to any contact.
If this case were to be decided by reference to this consideration alone, the court could not accept that the father’s proposal is in [X]’s best interests. A more pragmatic perspective is to consider whether the father will obey orders of the court. I am more confident about this and it is possible that orders for contact can be framed in such a way that incentives are there for the father to comply. For example, if the father is made responsible for arranging and paying for the cost of [X]’s return travel to Melbourne, this is some incentive for him to comply. The Independent Children’s Lawyer proposed a monetary deposit by way of security, and I will discuss this below.
Also, I discussed with the parties the possibility of making an order that any further proceedings in relation to [X] be listed in the first instance before myself, subject to the usual rights of the parties to ask for me to be disqualified, and to ask for a change of venue and so forth. This just means that there is a higher degree of accountability by the parents when they know that their case will be heard by the judicial officer most familiar with these proceedings. Thus, even though I have grave reservations about the father’s willingness and ability to facilitate [X]’s continuing relationship with her mother, there may be ways to mitigate these concerns. In any event, it is not the determining consideration in this case.
The likely effect of changes in [X]’s circumstances
A relocation to Melbourne, even in a case without the high levels of conflict as this one, is a very significant change to a child’s circumstances. The practical changes hardly warrant specific reference, because they are so obvious. It is interesting to note Ms G’ views, however, that on the facts of this case the impact on [X] would in fact be less than her last relocation from the inner suburbs of Sydney, to the outer south-western suburbs of Sydney. This evidence, no doubt, is based on an overall consideration of the likely effect of change, including the beneficial aspects of this change for [X].
First and foremost, Ms G believes that a move to Melbourne creates a distance from conflict and thus offers many psychological benefits for [X]. She would be moving to a place which is already familiar to her, particularly in terms of relatives and family. Whilst [X] might be changing where she lives in a physical sense, she would not be changing who she lives with in terms of the main people in her life, her sister [Y], and her father. Moreover, at least two of the experts referred to [X] as resilient.
Of course, if I were to accept the father’s proposal this means that [X] would be seeing her mother less frequently and the relationship would need to be maintained over a distance. Dr W is clearly concerned about the effect of relocation on [X]’s relationship with her mother, whereas Ms G is far less concerned. On balance, I accept Ms G’ evidence over that of Dr W, particularly because I think he was less attuned to the toxicity of the parental relationship than was Ms G. In the circumstances of this difficult case, I find her views attractive that there is in fact scope for a better relationship between [X] and her mother if relocation is allowed, than if it is not.
Issues of practical difficulty and expense
On the mother’s proposal, the contact arrangement is broadly consistent with the existing one. That seems to ignore all of the problems inherent in the existing contact arrangement. Mr S and Ms G clearly express concerns about its continuation, Dr W less so. It is interesting that the mother complains so long and loudly in her evidence about the distance, cost, inconvenience, and stress both to her and [Y] associated with contact between the inner and outer suburbs of Sydney. Curiously, the father’s proposal, which involves her taking [X] to and from the airport in Sydney involves far less travel, though obviously at the expense of frequency.
From the father’s perspective, his case proceeded on the basis that there were no issues of practical difficulty and expense on his proposal and that he would contribute to half the cost of travel using either his own resources or that of his family and relatives in Melbourne, who seem quite willing in this regard.
The Independent Children Lawyer’s proposal involves the father establishing an interest bearing fund containing $20,000 to be used to fund all air fare expenses associated with the mother spending time with [X]. This proposal was not just to address issues of practical difficulty and expense, but I suspect, a monetary incentive to secure the father’s compliance with the orders, and to underwrite his willingness to support the continuing relationship. It is not however, an order I can make on the evidence before me. The proposal was only made on the last day of the hearing. The father was not cross-examined about this. It is quite simply, not an order I can make on the evidence before me.
Whilst on the father’s proposal [X] would be travelling by air, it is only between Melbourne and Sydney and I am prepared to take judicial notice of the fact that air links between the two cities are very good with many travel options at different times of the day and at a reasonable cost. I don’t think that the issues of practical difficult and expense are such as to prevent the court accepting the father’s proposal, should it otherwise be in [X]’s best interest.
Issues of parental capacity
I have no doubt that both parents have the capacity to meet [X]’s physical and intellectual needs. Their capacity to meet [X]’s emotional needs is, quite simply stated, inadequate. The cross-examination of both the mother and father provide example after example of what all of the experts refer to as their lack of insight into the impact on [X] of the parental conflict and of how the parents are advancing their own personal selfish needs above that of [X]. Putting aside the conflict, if the father could let go of his intense hatred of the mother, there are indications in each of the experts’ reports that he is a warm and sensitive father who is available to the children, is even-tempered, and is interested in their lives.
Regrettably, the expert evidence does tend to suggest that the same cannot be said of the mother who, despite her protestations to the contrary, ultimately did concede in cross-examination and in other evidence given to the experts that she did yell at the children in ways that seemed to have traumatised both [X] and [Y]. Thus, even putting aside the issue of parental conflict, the father presents as the parent better able to meet the children’s emotional needs. I should explain at this point that, in my opinion, his inability to foster [X]’s relationship with the mother is very much linked to his hatred of the mother and it is only if that can be put aside that the father’s parenting capacity emerges as being slightly better than that of the mother.
Parental attitudes
Again this intense parental conflict means that both parents are open to criticism about their attitudes towards the responsibilities of parenthood. The mother pursued this litigation relentlessly at enormous expense to herself but all the evidence indicates that it was driven by her need to gain ascendency over the father and not about [X]. Ultimately this was reflected in the final position she put to the court, i.e. that [X] should in fact live with the father, albeit in Sydney. The mother should have disengaged from these proceedings at a much earlier time, but was incapable of doing so. Her zealous recording of everything that [X] said, her inappropriate questioning of [X] during contact, the video recordings, and her steadfast denial that she in any way contributed to the problematic relationship she has with [X], all demonstrates an irresponsible attitude about parenthood.
Of course precisely the same may be said about the father. His undermining of [X]’s relationship with the mother through what he has actively said, and passively done, reflects poorly on him. His attitude that the best outcome would be no contact is an irresponsible approach to parenting.
For both parents, the absolute nadir of this entire litigation and the event which demonstrates more than anything else about their attitudes to [X], and their responsibilities of parenthood, was played out in a court room in a suburban local court in Sydney during the course of the criminal and AVO proceedings arising out of the water bottle incident. I do not intend to lend dignity to this undignified incident by describing it in these reasons. In his zealous pursuit to win against the mother the father caused [Y] to give evidence in the proceedings against the mother. But the mother, not to be outmatched, instructed her Counsel to cross-examine [Y]. Did either parent stop to consider what impact this might have on the other’s relationship with [Y], and the fallout of all of this on [X]? All the evidence before me indicates that if the parents did think about it, it was but for a nano-second, and then the thought was quickly trampled in the undignified charge to win in the competition against the other. Not surprisingly, both parents were extensively cross-examined about this. Neither demonstrated any insight about these issues. Both thought that the other was responsible for [Y] having to give evidence and be cross-examined. The father tried to hide behind the police insisting that [Y] give a statement but I am completely satisfied that he could have stopped this. As for the mother’s insistence that her Counsel cross-examined her own daughter over an incident in which a water bottle was thrown, it is incomprehensible in all but the circumstances of this case where a toxic relationship only breeds more toxic acts.
In this sort of situation, all the court can do is to seek the least of the worst alternatives, and I am satisfied that on the evidence before me the father’s proposal represents this.
Family violence and family violence orders
Yes, there has been family violence in the sense that the mother inappropriately and excessively punished the children. Yes, it was disingenuous of the mother to deny this but to then later admit it. But none of this gets to the level of unacceptable risk of abuse, even if it is technically family violence. Yes, there are family violence orders between the father and the mother. If only this case were just about family violence. Instead, the problem confronting the court is that of insidious, unchecked parental conflict. This case is not decided by reference to family violence considerations.
The order least likely to lead to further proceedings
In the context of this case this is but an aspirational consideration. None of the experts is confident about the future between these parents in terms of their conflict, even after the litigation is ended. The experts are, at most, hopeful. On the mother’s proposal, nothing would change and I am satisfied that based on the history of this matter this will just result in the continuation of the conflict. On the father’s proposal, distance is created between the parents, there are less opportunities for any interaction between them, and there is the hope that the level of conflict will reduce. Of course, a parenting order that provides for interstate travel carries with it the inherent risk of problems, some of which are within the parents’ control, and some beyond. Of course there is the risk of contravention proceedings. But whereas these are possibilities if I permit relocation, I am satisfied they are almost certainties if I do not permit relocation.
Parental responsibility
The mother and the Independent Children's Lawyer propose an order for equal shared parental responsibility. The father proposes sole parental responsibility. Section 61DA provides that there is to be a presumption of equal shared parental responsibility, which does not apply if there has been abuse or family violence. No findings about abuse or family violence such as to negate the presumption are available on the facts of this case. The presumption may also be rebutted if the court is satisfied that it would not be in the best interests of [X] for her parents to have equal shared parental responsibility. Ms Druitt for the father, submits that in a high conflict case such as this one, evidenced by years of litigation where the parents are unable to communicate and where it is proposed that they live in different states, equal shared parental responsibility is simply not practicable.
The onus of proof to rebut the presumption was on the father and he has failed to discharge it. If the evidence were not so clear about the father’s lack of willingness to support [X]’s relationship with her mother and if I did not have so great a concern about the father’s capacity to provide for [X]’s emotional needs due to the conflict, as well as his attitudes to parenthood, the submission that the presumption was rebutted might have been sustained. That is not the case however. My real fear in this case would be that to give the father sole parental responsibility, even modified by the obligation to perhaps even consult, let alone provide information, would be to give him licence to completely exclude [X]’s mother from all decisions in her life. As Mr Jackson, Counsel for the Independent Children's Lawyer submitted, to make an order for sole parental responsibility would just exacerbate the father’s position. In other words, it would make him feel even more that he has won in his battle against the mother.
Equal time, or substantial and significant time
Equal time is not in the best interests of [X]. It was categorically rejected by Dr W. He was concerned about the level of conflict, and inability of these parents to communicate. All of the evidence confirms this. In any event, equal time is not reasonably practicable. Even on the mother’s proposal, the parents live too far apart. The evidence to which I have referred to above demonstrates that the parents neither have now, nor are likely to have, a capacity to implement an arrangement for equal time. Their current and future capacity to communicate and resolve difficulties that might arise in implementing an equal time arrangement is simply non-existent. In any event, based on my findings above in these reasons, [X]’s relationship with her mother is such that equal time is not something that can be sustained. I also note of course, that equal time was not the mother’s final proposal.
I also find that an order for substantial and significant time is not in [X]’s best interests. I accept that the mother’s proposal is the closest to an order for substantial and significant time but for all the reasons that I have set out above, it is impossible to characterise this as an order that is in [X]’s best interests. As I have said above, the father’s proposal, even involving relocation to Melbourne, is the least of the worst alternatives and the one that offers the greatest hope for not only maintaining [X]’s relationship with her mother but building on it. In any event the mother’s proposal is not reasonably practicable. Recent history has indicated that this is the case. Mr S and Ms G both believe that the current arrangement is not in [X]’s best interests. Again, as with regards the possibility of equal time, the parents simply lack the capacity to implement this arrangement or to communicate with each other to resolve difficulties that might arise.
Whilst I accept that the father’s proposal probably does not fall within the definition of substantial and significant time in section 65DAA(3), I am satisfied in the very difficult circumstances of this case that it is in [X]’s best interests and is as reasonably practicable as is possible with these parents.
Orders in [X]’s best interests?
Both the orders proposed by the father and the Independent Children's Lawyer contemplate relocation to Melbourne. Of course this may not take place immediately, and whilst neither set of orders contemplates this, I would be concerned about the father moving [X] during the school term as opposed to at the end of a school term. Whilst he will be free to relocate to Melbourne with [X], the restriction I intend to impose is that such relocation take place during school holidays and not during the school term.
This means, of course, that the orders need to contemplate what happens between now and relocation as well as what happens thereafter. Dealing with the former, the father proposes contact between the mother and [X] from after school on Friday to the commencement of school on Monday on the last weekend of each month. By contrast, the Independent Children's Lawyer proposes from after school on Friday to Sunday at 6.30 pm each alternate weekend. The current order, and that proposed by the mother, is each alternate weekend from after school on Friday until 7.30 am on the following Monday morning.
I am satisfied from the evidence that the current arrangement is not working satisfactorily and that, in particular, [X]’s return on Monday morning is disruptive and is not what [X] wants. This is abundantly clear from what [X] has said to Mr S, Ms G, and Dr W. In this regard, the Independent Children's Lawyer’s proposal for the return on a Sunday evening is actually a better one for [X]. I do not accept the father’s proposal for contact once each month even though I freely recognise the difficulties that exist in [X]’s relationship with her mother. The fact is that a return home on Sunday night will reduce some of the pressure that I sense she feels, and hopefully make the contact more sustainable.
In relation to school holidays, the father proposes half the school holidays in Sydney and after relocating to Melbourne, for 10 days of each Victorian school holiday period excluding the Christmas holidays. By contrast, the Independent Children's Lawyer proposes half of each school holiday except the July school holiday which would be spent entirely with the mother. After relocation, it would be the same pattern and duration. I cannot see the rationale for the father’s proposal for school holiday contact after relocation. If I have understood his proposal correctly there would be no contact during the Christmas school holidays. This of course is consistent with concerns I have about him fostering [X]’s relationship with her mother and that his proposal is clearly not in [X]’s best interests, and I prefer the Independent Children's Lawyer’s proposal in this regard.
The father proposes additional contact on any Melbourne long weekend and on the Mothers Day long weekend. The Independent Children's Lawyer proposes that during school terms 1, 3 and 4, there be contact every fifth weekend of such school term and then in school term 2, on the Mothers Day weekend and the Queen’s Birthday long weekend. Again, I prefer the Independent Children's Lawyer’s proposal because it increases [X]’s time with her mother and thus the opportunity for them to maintain their relationship. Both the father and Independent Children's Lawyer propose a number of ancillary orders designed to implement the substantive orders for contact. I intend to incorporate these into the final orders. Because of the difficulties in this case, outlined above, a more prescriptive form of order is called for.
As I indicated earlier in these reasons, I will not accept the Independent Children's Lawyer’s proposal for the father to create a fund out of which the mother’s airfare expenses are to be paid. The principle I will adopt, however, consistent with the evidence of both the mother and father is that they will each pay half the cost.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 12 May 2011
Schedule A
Final Orders Sought by Mother
1. That the mother and the father have equal shared parental responsibility for the child of the marriage, namely [X], born in 2001 (“[X]”).
2. That [X] live with the father in the Sydney metropolitan area.
3. That [X] spend time with the mother as follows:
a. During school term as follows:
i.each alternate weekend from after school on Friday (or, in the event that [X] is not attending school on that day, from 3:00pm on Friday) until 7:30am on the following Monday, however;
ii.if the Monday is a public holiday, [X]’s time with the mother shall continue until 7:30am on the Tuesday.
iii.the operation of order 3(a) shall:
A. commence on the second Friday following the date of these orders;
B. be suspended during school holiday periods; and
C. recommence on
I.the first Friday after the commencement of each new school term in odd numbered years (e.g. 2011); and
II.the second Friday after the commencement of each new school term in even numbered years (e.g. 2012); and
iv.for the purposes of facilitating order 3(a):
A. unless otherwise agreed in writing, changeovers at the start of [X]’s time with the mother shall take place at [X]’s school, with:
I.the mother being responsible for collecting [X] from her school; and
II.if [X] is not attending school on that day, the father being responsible for ensuring that [X] is at her school ready to be collected;
B. unless otherwise agreed in writing, changeovers at the end of [X]’s time with the mother shall take place at the McDonald’s Family Restaurant at [road omitted], [suburb omitted] (“[suburb omitted] McDonald’s”) with:
I.the father being responsible for collecting [X] from [suburb omitted] McDonald’s; and
II.the mother being responsible for ensuring that [X] is at [suburb omitted] McDonald’s ready to be collected;
b. During the school holiday periods as follows:
i.for the first half of each school holiday period which begins in an odd numbered year (e.g. 2011); and
ii.for the second half of each school holiday period which begins in an even numbered year (e.g. 2012);
iii.for the purposes of order 3(b), school holiday periods will:
A. begin at the conclusion of school on the last school day of term;
B. end at 7:00pm on the day immediately before the first school day of the following term; and
C. the first half of each school holiday period will end at 10:00am on the day following the midpoint of the school holiday period;
iv.for the purposes of facilitating order 3(b):
A. unless otherwise agreed in writing, changeovers at the start of [X]’s time with the mother shall take place at [X]’s school, with:
I.the mother being responsible for collecting [X] from her school; and
II.if [X] is not attending school on that day, the father being responsible for ensuring that [X] is at her school ready to be collected;
B. unless otherwise agreed in writing, changeovers at the end of [X]’s time with the mother shall take place at [suburb omitted] McDonald’s with:
I.the father being responsible for collecting [X] from [suburb omitted] McDonald’s; and
II.the mother being responsible for ensuring that [X] is at [suburb omitted] McDonald’s ready to be collected;
c. Every Mother’s Day weekend as follows:
i.from 10:00am on Mother’s Day until 7:30am on the following day;
ii.for the purposes of facilitating order 3(c):
A. unless otherwise agreed in writing, changeovers at the start of [X]’s time with the mother shall take place at the McDonald’s Family Restaurant at the corner of [road omitted] and [road omitted], [suburb omitted] (“[omitted] McDonald’s”), with:
I.the mother being responsible for collecting [X] from [omitted] McDonald’s; and
II.the father being responsible for ensuring that [X] is at [omitted] McDonald’s ready to be collected; and
B. unless otherwise agreed in writing, changeovers at the end of [X]’s time with the mother shall take place at [suburb omitted] McDonald’s with:
I.the father being responsible for collecting [X] from [suburb omitted] McDonald’s; and
II.the mother being responsible for ensuring that [X] is at [suburb omitted] McDonald’s ready to be collected;
d. At such other times as the parties may agree to in writing.
4. That [X] spend time with the father every Father’s Day weekend as follows:
a. From 10:00am on Father’s Day until 7:30am on the following day;
b. Order 3 shall be suspended between these times; and
c. For the purposes of facilitating order 3:
i.unless otherwise agreed in writing, changeovers at the start of [X]’s time with the father shall take place at [suburb omitted] McDonald’s with:
A. the father being responsible for collecting [X] from [suburb omitted] McDonald’s; and
B. the mother being responsible for ensuring that [X] is at [suburb omitted] McDonald’s ready to be collected;
ii.unless otherwise agreed in writing, if a changeover is necessary at the end of [X]’s time with the father, it shall take place at [omitted] McDonald’s with:
A. the mother being responsible for collecting [X] from [omitted] McDonald’s; and
B. the father being responsible for ensuring that [X] is at [omitted] McDonald’s ready to be collected.
5. That [X] communicate with the mother by telephone as follows:
a. Between 7:30pm and 8:00pm every Wednesday that [X] is not in the mother’s care;
b. Between 7:30am and 8:00am on [X]’s birthday if [X] is not in the mother’s care on that day;
c. Between 10:00am and 10:30am on every Christmas Day that [X] is not in the mother’s care; and
d. The father shall ensure that [X] is available to take the mother’s call at the above times to either:
i.the landline at the father’s home or;
ii.to the father’s mobile if they are not at home.
6. That [X] communicate with the father by telephone as follows:
a. Between 7:30pm and 8:00pm every Wednesday that [X] is not in the father’s care;
b. Between 7:30am and 8:00am on [X]’s birthday if [X] is not in the father’s care on that day;
c. Between 10:00am and 10:30am on every Christmas Day that [X] is not in the father’s care; and
d. The mother shall ensure that [X] is available to take the father’s call at the above times to either:
i.the landline at the mother’s home or;
ii.to the mother’s mobile if they are not at home.
7. That the mother and the father:
a. be restrained from denigrating or insulting the other parent and the members of the other parent’s extended family in the hearing or presence of [X]; and
b. take all reasonable steps to prevent any other person denigrating or insulting the other parent and members of the other parent’s extended family in the hearing or presence of [X].
8. That the mother and the father inform each other in writing as soon as practicable of any appointments made for [X] with any specialist medical practitioner, including any dentist, orthodontist, physiotherapist, psychologist, psychiatrist, counsellor or therapist.
9. That the mother and the father each ensure that the other is notified as soon as possible should there be a medical emergency requiring [X] to be admitted to hospital whilst she is in their respective care.
10. That the mother and the father notify each other of any change in telephone contact numbers, such notification to be made in writing and within 48 hours of any change.
11. That the mother and the father notify each other of any proposed change to their place of residence, such notification to be made in writing no less than 21 days prior to the proposed change.
12. That the mother and the father notify each other of any proposed travel by [X] outside the state of New South Wales and the itinerary for such proposed travel including the destination, accommodation and contact details, such notification to be made in writing no less than 14 days prior to the proposed travel.
Final Orders Sought by the father
1. The Respondent Father shall have sole parental responsibility for the children, [Y] (‘[Y]’) (dob: 1994) and [X] (‘[X]’) (dob: 2001) (‘the children’).
2. The children shall live with the Respondent Father.
3. The Respondent Father and the children shall be at liberty to relocate interstate to Melbourne.
4. The child [Y] shall spend time with the Applicant Mother according to the child [Y]’s wishes.
5. Should the Respondent Father and the children relocate to Melbourne, then if the child [X] wishes to spend time with the Applicant Mother, then the child [X] shall spend time (in accordance with Order 6)
Short Minutes of Order sought the by Independent Children’s Lawyer
The parties have equal shared parental responsibility for the child, [X] born in 2001.
The child live with the Father
Subject to paragraphs 7 and 8 below, the Father shall be permitted to relocate with the child to the metropolitan area of Melbourne, Victoria.
That from the date of these Orders, the child spend time with the mother in the event that she lives within 60 kilometres from the fathers place of residence:
4.1During school term relevant to the state that the child resides, every alternate weekend, from Friday after school until the following Sunday at 6:30 pm, the changeover to take place at the mothers residence.
4.2Except for the July school holidays, one half of the school holidays: for the first half of school holidays in years ending in an even year; and for the second half of school holidays in years ending in an odd number year.
4.3For the entirety of the July school holidays
4.4The weekend of the Orthodox Easter of every even year, from the Friday at 3.00pm until the following Monday at 9.00pm.
4.5From 6.00pm on Christmas Eve until 6.00pm on Christmas Day in December of years ending in an odd year.
That child spend time with the Mother, in the event that the Mother lives outside a 60 kilometres from the Father’s place of residence:
5.1During school terms 1, 3, and 4, relevant to the state that the child resides, every fifth weekend of such school term, from Friday after school until the following Monday before school,
5.2During school terms 2, relevant to the state that the child resides:
5.2.1For the Mother’s Day weekend, from Friday after school until the following Monday before school, and;
5.2.2For the Queen’s Birthday weekend, (relevant to every state of the Commonwealth except Western Australia), from Friday after school until the following Tuesday before school;
5.3The weekend of the Orthodox Easter of every even year, from the Friday at 3.00pm until the following Sunday at 6.30 pm,
5.4From 6:00 pm on Christmas Eve until 6:00 pm on Christmas Day in December of years ending in an odd year.
5.5Except for the July school holidays, one half of the school holidays: for the first half of school holidays in years ending in an even year; and for the second half of school holidays in years ending in an odd number year.
5.6For the entirety of the July school holidays.
5.7In relation to the spend time periods set out in 5.1 to 5.4 inclusive, the overnight destinations of such spend time period to take place within 35 kilometres from the Fathers place of residence; or if otherwise applicable, where the Father resides in the Greater Metropolitan Area, in the Melbourne CBD, and the suburbs of [suburbs omitted].
5.8In relation to the spend time periods set out in 5.5 and 5.6, the Father shall ensure that the child is made available to the Mother for changeover at the airport of the Mother’s home city or home town.
For purpose of the school holiday periods as referred to in paragraphs 4 and 5 above, school holidays will:
6.1Commence at 10.00am on the first day following the last day of the immediately prior school term;
6.2Conclude at 10.00am on the day immediately before the first day of the following school term;
6.3The first half of each school holiday will end at 10.00am on the day following the midpoint of the school holiday period.
All airfare expenses associated with the Mother’s spend time with the child shall be paid by the Father, initially derived from an interest bearing fund set within 4 weeks from the date of these orders to be a minimum of $20,000.
The Father shall not be permitted to relocate with the child to the Metropolitan area until he fully complies with the initial funding of a minimum fund of $20,000 referable to paragraph 7
Where applicable, the Father shall pay for all of the airfare for the child to travel, for the purpose of implementing any spend time arrangements with her Mother.
Where applicable, the Father shall pay for all of the airline tickets for the Mother to travel, for the purpose of implementing any spend time arrangements between the child and her Mother.
That whilst the child is in the primary care of the Father, the Father shall ensure that the child communicate with the Mother:
11.1Between 7.00pm to 8.00pm on the child’s birthday
11.2Between 7.00pm to 8.00pm on every Thursday and Sunday.
That the Mother and Father shall forthwith keep each other advised in writing of any medical appointments made in relation to the child.
That the Mother and Father shall contact each other as soon as possible should there be a medical emergency concerning the child whilst the child s in their care.
That the Mother and the Father shall notify each other of any proposed changes to their places of residence, such notification to be made in writing no less than 21 days prior to the proposed change.
The Father is order to authorize to the child’s school, within 14 days from the time the child enrols in a new school, for the purpose of that school providing material including school reports to the Mother and attending school events.
That the father and mother are hereby restrained from denigrating each other in the presence of the child.
Both parties are to forthwith make arrangements to attend a Post Separation Course.
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