Redman and Bartsch

[2013] FMCAfam 309

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REDMAN & BARTSCH [2013] FMCAfam 309

FAMILY LAW – Parenting – children 11 and 9 years – father's capacity to interact with children/consult with mother as a result of having Asperger’s syndrome – time with father significantly limited – sole parental responsibility order to mother.

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Applicant: MS REDMAN

Respondent: MR BARTSCH

File Number: SYC 1818 of 2011

Judgment of: Sexton FM

Hearing dates: 21 and 22 March 2013

Date of Last Submission: 22 March 2013

Delivered at: Sydney

Delivered on: 5 April 2013

REPRESENTATION

Counsel for the Applicant: Ms Christie

Solicitors for the Applicant: Dimocks Family Lawyers

Counsel for the Respondent: Mr Peterson

Solicitors for the Respondent: Ryall Lawyers

Counsel for the Independent Children’s Lawyer: Ms Falloon

Solicitors for the Independent Children’s Lawyer: Peter Baker Solicitors  

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged.

2. The children of the parties, X born (omitted) 2002 and Y born (omitted) 2004, live with the Mother.   

3. The children spend time with the Father:

   (a)each alternate Saturday from 1 p.m. until 5 p.m. unless the children are engaged in an activity outside the home when time can be extended by agreement between the parties; 

   (b)on Father’s Day (in Australia) each year from 1 p.m. until 5 pm, when time on the Saturday of that weekend will be suspended if the Father’s Day weekend is a contact weekend; and  

   (c)on the Saturday closest to each child’s birthday from 1 p.m. until 5 p.m. (if not a contact Saturday).

   (d)at any other time by agreement between the parties.

4. Unless otherwise agreed between the parties, changeover occur in the lobby of the Mother’s residence.

5. The Father advise the Mother by text message if he will be more than 10 minutes late returning the children. 

6. The children have telephone communication with the Father each Wednesday between 7.30p.m. and 8.30p.m. when the Father will call the children’s mobile phone, and the Mother will ensure the children’s mobile phone is charged and switched on.

7. The Mother have sole parental responsibility for decisions relating to major long term issues for the children, including but not limited to decisions about their education, religion, medical treatment and health, applications for passports and overseas travel.

8. The Mother notify the Father by email, as soon as practicable, of any major decision she has made in respect to the children’s health, education or religion.

9. The Mother authorise the children’s schools to provide school reports to the Father at his request, and any other information sought by the Father in relation to the progress of either child. 

10. Each party be responsible for the day to day care, welfare and development of the children during periods the children are in his/her care.

11. Each party keep the other informed of his/her residential address, landline and mobile telephone contact details and ensure the other has at least 14 days advance notice of any change in address, and 24 hours advance notice of any change in either telephone number.

12. Each party advise the other immediately, or as soon as practicable by telephone if either child suffers a medical emergency and provide details of hospital, medical practitioner, and/or recommended treatment, as applicable. 

13. Each party be restrained from making any negative comment about the other party in the presence or hearing of either child.

14. Each party be at liberty to telephone the other party in an emergency.

15. The Father be restrained from attending the children’s schools except for one of the following purposes:

    (a)To collect either child if requested or agreed by the Mother;

    (b)To deliver either child if requested or agreed by the Mother;

    (c)To attend a school event to which parents are invited;

    (d)To attend an appointment with member of staff;

    (e)To respond to a direct invitation from the school. 

16. In the event the Mother proposes overseas travel for the children, the Mother give the Father at least 30 days notice of her intention to travel, details of itinerary, including flight dates and times, evidence of the return tickets and addresses of all locations the children will stay.

17. The children’s time with the Father be suspended during periods the children are overseas with the Mother. 

18. In the event the Father consults Dr S or another psychologist/ psychiatrist/ health professional in relation to his interactions with the children, the Father provide the health professional consulted, with a copy of Mr L’s report dated 14 November 2012, a sealed copy of these Orders and Reasons for Judgment and it is noted that Mr L has offered to assist the Father to locate an appropriate health professional to address these issues. 

19. The appointment of the Independent Children’s Lawyer be discharged.

20. Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 1818 of 2011

MS REDMAN

Applicant

And

MR BARTSCH

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties have two children, X aged 11 years and Y aged 9 years. They agree the children will live with the Mother but have been unable to resolve how much time the children will spend with the Father and as to whether or not parental responsibility should be shared. 

2. The parties commenced cohabitation in (omitted) 1996 in Australia. The Mother says they separated under the one roof in 2005,[1] while the Father says they separated when he moved out of the home in February 2008. It is common ground that the Mother spent 9 months in Peru with the children between November 2006 and August 2007. The children have remained living with the Mother. From February 2008 until approximately mid 2012, by arrangement between the parties, the children spent regular time with the Father but mostly during the daytime. In accordance with Interim Orders made in December 2012, the children presently spend each alternate weekend with the Father from Saturday at 1 p.m. until Sunday at 7 p.m.  The parties agree they have substantially complied with those orders, though the Mother says the Father has returned the children late on occasions. 

   [1] Mother’s Initiating Application dated 24 March 2011  

3. Each party and the Independent Children’s Lawyer were represented by counsel at the hearing. While the Mother disputed the Father’s need for an interpreter, the Father was assisted by an interpreter in the Spanish language. 

Background

1. The parties migrated from Peru to Australia in 1996. Both are now Australian citizens.  The Father’s mother has lived in Australia since August 2011 but otherwise neither party has family in Australia. Neither party has re-partnered since separation. Each party lives in rented accommodation in (omitted) in close proximity to the other party. 

2. The Mother, 46 years of age, works full time in the city as a (omitted) but her employer has offered her the option of working some of the week at home, which she intends to accept.   

3. The Father is 51 years of age.  He has a Master’s Degree in (omitted) from the (omitted). He studies full time at TAFE in (omitted) and expects to have achieved a Diploma in (omitted) by the end of 2013.  He then plans to seek employment.  He currently relies on Government benefits for his income. 

4. The children attend (omitted) Public School, where X is in Year 6 and Y in Year 4.  They presently attend before and after school care located at the school on most weekdays. Both children are progressing well and each is actively involved in extra-curricular activities including learning a musical instrument, playing in a school band, swimming, karate and in Y’s case, chess. Y’s end of year report in 2012 supports the Mother’s view that Y is academically gifted. X is progressing as an average student.[2]

   [2] Exhibit 2 (School Reports)

Brief litigation history

1. The Mother commenced these proceedings by application for final parenting orders filed in March 2011. The Mother sought orders for the children to live with her, for her to have sole parental responsibility for the children’s religion and religious education (but otherwise an order for equal shared parental responsibility) and for the children to spend time with the Father each Saturday for 6 hours.[3] 

   [3] Mother’s Initiating Application dated 24 March 2011

2. In his Response filed in July 2011, the Father sought final orders for the parties to share parental responsibility, for the “chosen” religion to have “both a strong record on child protection issues and beliefs that imply the equality between women and men.”  He sought orders for the children to spend time with him after school until 6.30 pm each Monday – Wednesday (when he would ensure homework was done and would tutor X in reading and comprehension) and from Friday until Monday on alternate weekends.[4]

   [4] Father’s Response to Initiating Application dated 15 July 2011

3. On 5 March 2012 interim parenting orders were made by consent providing for the children to live with the Mother and to spend time with the Father each Sunday from midday until 7 pm until the Father moved into his own accommodation where the children would have their own beds. Then the children would spend from 3 pm until 6 p.m. with the Father on Mondays and Tuesdays and alternate weekends from 1 p.m. Saturday until 7 p.m. Sunday as well as half school holidays.  On 20 June 2012, there were minor changes to the interim orders and an Independent Children’s Lawyer was appointed.  On 10 December 2012, the orders were varied to provide for the children’s time with the Father to be reduced to alternate weekends from 1 p.m. Saturday until 7 p.m. Sunday. 

Orders sought by each party at hearing

1. The Mother seeks orders providing for her to have sole parental responsibility for major long term decisions for the children, and for the children’s time with the Father to be reduced to 3 hours on alternate Saturday afternoons.[5]  At hearing, the Mother’s counsel advised the Court the Mother would agree to the time being extended to 4 or 5 hours.

   [5] Mother’s Case Outline dated 19 March 2013

2. The Father seeks an order for equal shared parental responsibility on condition that “the chosen religion must involve an organisation with a strong record on child protection issues and beliefs that imply the equality between women and men.”[6] He would prefer the children not to attend scripture classes at school. He seeks orders providing for a gradual increase in the children’s time with him, over 2 years, until they are spending 5 nights a fortnight with him, in addition to approximately half school holidays.[7]

   [6] Father’s Response to Initiating Application dated 15 July 2011

   [7] Father’s Affidavit affirmed 4 March 2013 at paragraph 117

Expert recommendations

1. Mr L, Regulation 7 Consultant, prepared a report for the Court and was cross-examined in the proceedings. Mr L recommends that the children’s time with the Father be limited to 3-4 hours on a Saturday or a Sunday in alternate weeks. In his view, the current orders (which provide for the children to spend 30 hours a fortnight with the Father), are harmful for the children. Mr L says that if the children spend more than a few hours a fortnight with the Father, each child’s relationship with the Father will be further damaged. Mr L believes that the quality of the children’s relationship with the Father will be enhanced if they spend considerably less time with him. Mr L recommends that the Mother have sole parental responsibility for major long term decisions for the children on condition that she notify the Father of those decisions. Mr L recommends that the Father attend upon an appropriate expert with respect to developing his capacity to relate to the children. 

2. The Independent Children’s Lawyer substantially supports Mr L’s recommendations, but submits that the time should be 5 hours on alternate weekends.[8] The Independent Children’s Lawyer does not seek an order for the Father to attend therapy.  

   [8] Exhibit 3

3. Though the Father told the Court he disagreed with Mr L’s recommendations, considered his report “unprofessional” and believed that Mr L “lacked qualifications to make observations”, the Father’s counsel did not challenge Mr L’s expertise in cross-examination, nor did he challenge the admissibility of the report. 

Legal principles

1. These proceedings were commenced on 24 March 2011. Relevant amendments made to the Family Law Act 1975 pursuant to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 therefore do not apply.

2. The principles governing this case are set out in Part VII of the Family Law Act 1975 (‘the Act’). Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration. 

3. The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.

4. The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:

   ·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   ·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

5. The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).  

Evidence in relation to the Father’s behaviours and parental capacity

1. The Father’s parenting capacity is the significant issue in this case. Mr L identifies significant deficits in the Father’s capacity to engage with the children appropriately. He assesses the Father to lack insight, parental judgment and empathy with the children. I agree with this assessment and give it considerable weight.  

2. Although there was no medical evidence before the Court, it is common ground that the Father was diagnosed with Asperger's Syndrome a number of years ago. The Father says it is “a mild version”.[9] The Father told Mr L “sometimes I don’t pick subtle symptoms from the body language of people and sometimes I have to ask.”[10] The Father says he took anti-depressant medication for anxiety in 2005 but has not needed or used any medication since 2007.[11] In cross examination, the Father says he had obsessive compulsive symptoms when X was very young, but no longer has those traits. However, in cross examination he says he takes 20 seconds to wash his hands “in accordance with hospital recommendations.”  He avoids going outside in the winter because of the risk of catching cold. He says he knows a lot about meningitis and has taken X to hospital on approximately 10 different occasions because he has feared she has contracted meningitis. X has never been diagnosed with meningitis.

   [9] Father’s Affidavit affirmed 4 March 2013 at paragraph 104

   [10] Exhibit 1 (Report by Mr L, dated 14 November 2012) at paragraph 43

   [11] Father’s Affidavit affirmed 4 March 2013 at paragraph 105

3. The Father expresses definite views about certain issues, including strong opposition to the Catholic religion, and the need for the children to focus on homework and educational tasks. In relation to Catholicism, the Father is opposed to the children attending scripture classes at school. The Father believes that “the children may be exposed to homophobic, misogynist and ‘soft-on-paedophiles’ views while attending the Catholic church.”  He says “I believe scripture teachers in Australia become complicit in the cover up if they choose not to resign despite all the scandals engulfing the Catholic Church.”[12] There is no issue that the Father is entitled to hold these views.  The concern arises from the manner in which he behaves as a result of these views.

   [12] Ibid at paragraph 83

4. In relation to homework, the Father told Mr L he spends his time with the children trying to get them interested in science, reading to them about science and doing maths with X.[13] He said he has spent more time with X because Y does not have much trouble with maths. The Father says he is keen to obtain educational ‘apps’ for the children to use on the Ipad, and to have additional time to tutor X in reading and comprehension as well as in maths. 

   [13] Exhibit 1 at paragraph 31

5. The Mother says she commenced these proceedings because in February/March 2011, the Father attended the children’s school on two occasions to remove them from their scripture classes[14] and because the Father was in the habit of coming to the Mother’s home unannounced to spend time with the children, which the Mother found disruptive. The Mother told Mr L that the Father’s Asperger’s Syndrome causes him to lack empathy with others, to misread people’s intentions (e.g. he confuses excitement and anger), to hold odd ideas, such as believing that the children should only be allowed to express happy emotions.[15] The Mother says the Father does not realise when Y wants attention, focuses almost entirely on X when the children are with him, and is not attuned to the children’s developmental stages. For example, she says he is trying to teach X high school algebra, reads books to the children that are beyond their years and believes extra curricular activities are a waste of time because they take the children away from their homework. In relation to reading to the children Mr D’s “Magic of Reality”, the Father said he tried to read it aloud but noticed the children’s attention span was not long enough and that he would leave it for a year. The Mother says the Father does not understand what is fun for the children, and misinterprets their compliance with his suggestions as “enjoyment.”  She says Y feels hurt and rejected by the Father, and X is distressed by Y being largely ignored when the children are with him.  

   [14] Mother’s Affidavit sworn 24 March 2011 at paragraphs 42-44

   [15] Exhibit 1 at paragraph 23

1. While acknowledging that he is not an expert on Asperger’s Syndrome, Mr L’s unchallenged evidence is that the Syndrome is a:

   compromised capacity for empathy, which literally translates as being unable to see the world from another’s point of view, and therefore accurately read their cues…

   Mr L said:

   while I was interviewing him [the Father]...there were quite a few jarring instances of him not really understanding what they [the children] were trying to communicate to him.[16] 

   [16] Transcript, Mr L, 21 March 2013 at page 12

2. Y told Mr L that the Father “doesn’t actually play with us but gives us the toys to play with.”  He feels “the odd one out” because the Father always “works with X.”[17]  Y says the Father wants to stop them doing extra curricular activities so they can do maths, while he really enjoys flute, guitar, recorder.  He feels bored, rejected and unhappy much of the time he is with the Father.[18] X tells Mr L that the Father rarely plays with her or with Y.  She says he typically does maths with her, while Y plays by himself on the computer.  She said Y gets “very annoyed and naughty” like throwing the ball at the Father and playing with the light switch.[19] She finds all the maths “very boring”.  X describes her Father’s lack of emotional expression when talking to her as “it’s like playing one note that goes on and on for ever.”[20]  

   [17] Exhibit 1 at paragraph 49

   [18] Ibid at paragraph 51

   [19] Ibid at paragraph 44

   [20] Ibid at paragraph 46

3. The Father told Mr L he treats the children with respect and does not “yell at them”. The Father reported Y throwing a toy at him that nearly hit him in the eye and explained “I suspect he feels he is being suppressed somewhere else.” He also turned a table upside down.  The Father reported being pleased that Y “feels free to express himself” in these ways when with him.[21] The Father also believes that Y misbehaves because he perceives that the Father likes X more than him, because of the amount of time he does maths with her.

   [21] Ibid at paragraph 35

4. Mr L says that the Father would not have a natural intuitive understanding of each child’s particular characteristics in the way a parent usually would, and does not relate to the children at their developmental level. Mr L says that the Father does not, or cannot, recognise that Y is genuinely bored, frustrated and angry when spending time with him and that Y therefore engages in aggressive and risk-taking behaviours.[22] Mr L says that the Father does not recognise expressions of emotional needs accurately. He misinterprets non-verbal cues of emotional states like anger and frustration and boredom. He has “no inflexion in his voice whatsoever”. In Mr L’s view, the Father is pre-occupied with the children’s educational needs to the exclusion of other developmental needs and interests.[23] He says that the Father cannot apply himself to X’s education in a balanced way.

   [22] Ibid at paragraph 57

   [23] Exhibit 1 at paragraph 56

5. I agree with Mr L’s assessment of the Father. I find it noteworthy that in cross examination the Father presented as over-literal and inflexible. At times, he questioned counsel rather then answering the question asked, and at times, he presented as intensely irritated by the questioning process making remarks such as “you don’t ask proper questions”; “ask the question properly.”   

6. I find that the evidence discloses numerous examples of the Father’s poor insight, lack of parental judgment and at times irresponsibility.  I highlight the following: 

   i)When Y was still in a cot, the Father left him at home alone, with chocolates in the cot in case he woke up, while driving X to day-care. In response to questions on this decision, the Father said statistics proved that it was “more dangerous to go in the car with a P driver than be left in a cot unattended…  he would be content for a while with chocolates in his cot”. 

   ii)When X was 10 years, and Y 8, the Father decided to teach the children about sex.  He had read that educational experts believe that children are not taught about sex early enough and that nobody talked to him about this subject in his formative years. He also told X about sexual assault because “she is old enough to be raped so it should be discussed.” He saw no need to discuss with the Mother, his decision to talk about sexual matters with the children.  The Father told Mr L that he now realises Y was too young to understand.[24]

   iii)On 22 February and 1 March 2011, the Father attended the school to try to remove the children from scripture classes. He told Mr L he did not want the children exposed to scripture teachers because… “they are implicitly colluding with, and condoning, child sexual abuse within religious organisations.”[25]  He went to various rooms to try to find the children, including walking through the open door of a classroom (neither X nor Y were in the room) when other children were engaged in a class, and shutting the door noisily after him. He found X who followed him while he looked for Y. The Father did not accept that his actions caused X confusion and embarrassment and apprehension about his attendance at the school again. He said in cross examination “one day she [X] will understand what I did.”    

   iv)Last year, when the Father asked Y how the Mother was and he responded “fine”, the Father told her “Mummy” is not fine “because [she] believes in God and God does not exist.”[26] 

   v)On one occasion last year, when at a shopping centre with his mother and the children, Y disappeared and ran home to the Mother. The Father searched for him but did not call the Mother.  When the Mother called him to tell him Y had arrived home alone, it was X who acted as the conduit between the parties, because the Father refused to speak directly to the Mother and did not text message her. The Father says he was prohibited from speaking to the Mother because of a Court order providing for the parties to communicate by SMS or email only and did not think to send her a text message.[27] The Father did not accept the emergency at hand would override an order about methods of communication. The Father’s concern about the incident was that Y had been told to wait while he bought shoes for X, but ran away because he was not prepared to wait and is used to getting his own way.  The lesson learned he said, was that he, the Father, could not rely on his mother who was supposed to be supervising Y, while they waited outside the shoe store. 

   vi)Y loves chess and is part of the school chess team.  When the Father was asked whether he plays chess with Y, the Father said “No, because I always win” and Y does not like me always winning. 

   vii)The Father recently allowed his mother to put four layers of clothing on X when she had a high temperature and the Father was taking her to hospital, which, according to the doctor consulted, caused X’s temperature to rise further.

   viii)Despite orders requiring him to do so, the Father has told Y he would not take him to karate unless the Mother paid. The Father said that Y needed an explanation for not going. In addition, the Mother’s unchallenged evidence is that the Father did not comply with the Court’s Orders prior to December 2012: he collected the children late from school, returned them after the time they were to be collected, causing them to arrive late at their flute lesson. At times, he would tell the children he intended to collect them outside the times provided in the Orders. In the April 2012 school holidays, the children complained of being given no dinner, Y repeatedly rang the Mother to say he could not sleep, both children rang her each day asking to be picked up, (each day they therefore spent some time at the Mother’s home) and on one occasion last year when in the sole care of the paternal grandmother, the children crossed the busy (omitted) Highway alone because they wanted to get home to the Mother. The Father would not always collect the children at times provided in the Orders. In November 2012, the Father chose not to have the children at all. 

   ix)In cross examination, the Father acknowledges discussing these proceedings with the children, including allegations raised by the Mother, and to showing the children documents related to the proceedings “because the children demanded to see what was written.” He discussed an incident with the children reported by the Mother concerning an argument between himself and his mother in front of the children.  He says he “reconstructed” the incident with each child separately, “using police procedure as best I could.” The Father also questioned the children about what they said to Mr L at interview.

   [24] Ibid at paragraph 32

   [25] Exhibit 1 at paragraph 38

   [26] Mother’s Affidavit sworn 21 February 2013 at paragraph 57

   [27] See Orders 15 of Orders made 5 March 2012

7. I find the evidence also discloses behaviours by the Father which on the face of it, seemed counter-productive to his interests, but consistent with the rigidity in his thinking:  

   i)Order 4 of Orders made on 5 March 2012 provided for the Father to show the Mother’s solicitor his lease agreement before the children could spend substantially increased time with the Father, including overnight time. However, as a result of his own delays, the commencement of the increased time was 3 weeks later than it could have been. Despite the Order, once the Father entered into a suitable lease agreement, he would not give the Mother’s solicitor a copy of the lease, except on conditions set out in an email to her of 26 March 2012 which were:

   ·    “a non-disclosure undertaking regarding any information contained in the Tenancy Agreement”,

   ·    “we both spend the five minutes in the same room and the document does not leave the room”,

   ·    “no photocopies or scanning of the document are to be taken”; and

   ·    “no use of mobile phones or writing devices for any reason whatsoever.” [28]     

   ii)When it was pointed out to the Father during the hearing that Dr S, psychologist, whom he had consulted, can properly be referred to as “Dr” given she holds a PhD in clinical psychology, the Father was adamant she was not a doctor and should not be referred to as such. He persisted in this view despite being corrected more than once. 

   iii)The Father formed the view that each of 4 different professionals (3 of whom he had had direct dealings with) has been physically violent towards his/her own children: Mr L, the Court appointed expert, Ms B, a caseworker at the Department of Family and Community Services, Mr W, mediator at the Family Relationships Centre in the city and the General Manager of the Family Relationships Centre in the city. In relation to Mr L, the Father says he came to this view because of Mr L’s body language at interview.  In relation to Ms B, in April 2009, the Father lodged a complaint about her in a 16 page densely typed letter.[29] In the letter, the Father questioned Ms B’s professionalism and competence as well as alleging she had falsified records, and had used physical violence against her children because she had no empathy with young children. On 8 March 2010, the Father wrote that the departmental reply to his complaint was “grossly unprofessional”.[30] His 7 page letter to the Chief Executive of the Department ends with this paragraph:

   …I proposed a change to DOCS recruitment practices whereby job applicants with children would have to show they have real empathy for young children by signing a statement saying that they have not used physical violence to discipline children of primary school age and younger, either as a parent or teacher o [sic] in any other capacity. Please provide an update on whether my suggestions are being considered; if not, why.[31]

   In relation to Mr W, on 4 March 2010, the Father alleged that Mr W has used physical violence to discipline young children because he declined to answer the Father’s direct question to him as to whether he had done so. The Father also wrote to the General Manager of the Family Relationships Centre at which Mr W worked, to request “a mediator who has not used physical violence to discipline children… either as a parent or as a teacher or in any other capacity.”  In the same letter, the Father asked the General Manager to disclose whether he/she had ever “used physical violence to discipline children of primary school age or younger, either as a parent or in any other role.”[32] 

   iv)The Father formed the view that Mr L is a misogynist because, inter alia, Mr L said he agreed with equality between “men and women” rather than “women and men” as the Father had put it to him.  

   [28] Mother’s Affidavit sworn 21 February 2013 at Annexure G

   [29] Mother’s Affidavit sworn 21 February 2013 at Annexure C

   [30] Ibid at Annexure D

   [31] Ibid

   [32] Mother’s Affidavit sworn 21 February 2013 at Annexure U

8. The Father’s counsel submits that the Court should find that the Father has made positive changes since the December 2012 interim orders were made and that the children are now happy to be with him.  The Father says he has reduced the time he spends with X on maths from 45 minute to 15 minute sessions. He believes Y “is OK” with 15 minute sessions. Since Christmas, he has purchased 3 new Nintendo games the children wanted, and an Ipad which the children can now play. 

9. While I accept the Father has made some changes, I am not persuaded the changes are likely to have improved the quality of the children’s engagement with him, in any meaningful way. When asked in cross examination about how he would use additional time with the children, the Father did not propose interactive fun activities for himself with the children. The Father continued to emphasise the importance of his involvement in X’s academic work, especially to improve the speed at which she can solve maths questions. While her teacher tells the Father that X is an average student across all subjects, the Father does not agree. He believes she needs help with maths, reading and comprehension.  He says if the children spend additional time with him, he will do 3 sessions of 15 minutes of maths with X each day, and 10 minutes with Y.  If they complain, he will reduce the time by 5 minutes.  He will spend 15-20 minutes a day with X on reading and comprehension. He proposes the children playing solo games on Nintendo and the Ipad, which would involve no interaction between him and the children or between the children themselves. He will purchase educational applications for the Ipad. The children can watch television and movies at his home, which again, are activities which do not promote interaction.  The Father is not enthusiastic about the children’s interests outside their school work.  He never watches them at swimming or karate. He has almost never seen either of them perform, and has never asked them to bring their instruments to play to him at his home. He said he might try to play chess with Y, but, as previously noted, Y does not like the Father always winning.  The Father’s focus remains on the children’s homework.  He demonstrated no insight into the major changes he needs to make in respect to his manner of interacting with each child, and rejected Mr L’s concerns altogether. 

10. However, I do have regard to Mr L’s evidence that the Father did tell him, when told the children seemed genuine when they said they often felt bored with him, “I will do things I haven’t done before.”[33]  Mr L says the Father was surprised to learn he was not reading their cues accurately and seemed prepared to investigate further.  Mr L says the Father should consult a psychiatrist with expertise in the field of Asperger’s, and the Father agreed that it might be helpful to consult a psychiatrist or psychologist to help him with his communication with the children.[34]  It is encouraging to know that the Father has consulted Dr S, clinical psychologist on 2 occasions since December 2012 and says he may consult her for further sessions.    

    [33] Exhibit 1 at paragraph 42

    [34] Ibid at paragraph 43

11. I give significant weight to these findings concerning the Father’s parental capacity, and very much hope the Father will recognise his need to address the issues highlighted.

THE PRIMARY CONSIDERATIONS   

The benefit to the child of having a meaningful relationship with both of the child's parents

1. Mr L says that the Father has a genuine interest in the children’s education, but X finds the Father’s tutoring excessive and Y hates being left to his own devices while the Father focuses on X. Mr L says that the Father makes Y feel “ignored and rejected”[35] as there is very little interaction between them, while the Father focuses on tutoring X. Mr L says the Father’s efforts to help X academically are misguided because the Father largely ignores the children’s other significant needs, including having very little interaction with Y. 

   [35] Transcript, Mr L, 21 March 2013 at page 3

2. In Mr L’s opinion, each child’s relationship with the Father is impaired as a result of his lack of insight, his lack of empathy, and his poor capacity to recognise and to meet the children’s emotional needs.

3. I share Mr L’s view that the children’s relationships with the Father are not presently meaningful because of the Father’s lack of parental capacity.  I accept his opinion that the children, for the most part, do not enjoy their time with the Father as a result of his behaviours and lack of attunement to their needs.   I therefore find that the children are presently only able to enjoy the benefit of a meaningful relationship with the Mother. 

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. “Abuse” was, at the relevant time, narrowly defined in section 4 of the Family Law Act as sexual abuse or an assault of a child which is an offence under the law.  This is not an issue in this case. 

2. “Neglect” is not defined in the Family Law Act and must be given its ordinary meaning.  I am not satisfied there is a neglect issue in the usual sense, but I am satisfied the children are neglected by the Father in an emotional sense. This issue has already been addressed in relation to the Father’s parenting capacity. 

3. “Family violence” was defined at section 4 of the Act, (at the relevant time) as conduct, whether actual or threatened that causes the person to reasonably fear for, or to be apprehensive about, his or her personal wellbeing or safety. Each party alleges the other has engaged in family violence.

4. The Mother says she has seen the Father behaving aggressively both verbally and physically. She says he pushed her against a wall on one occasion and on another, caused bruising to her arm. The Mother says the children have reported seeing the Father trying to punch his mother.  The Father denies any physical violence towards the Mother or against his mother. 

5. The Father alleges that when the parties were living together, the Mother exposed the children to “bursts of anger and hostility” because of her depression.[36] While the Mother acknowledges raising her voice with the children when they ignored her directions, she denies being “hostile”. 

   [36] Father’s Affidavit affirmed 4 March 2013 at paragraph 50

6. Neither party’s counsel, nor counsel for the Independent Children’s Lawyer submits this factor is significant in this case.  I agree with Counsel that even if I were to accept each party’s evidence at its highest, such findings would not influence my decision. 

THE ADDITIONAL CONSIDERATIONS

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the child’s views. 

1. X presented to Mr L as “an intelligent, thoughtful, albeit rather serious, little girl,” very interested in reading and keen on educational activities.  He says she is a serious, compliant, child and one would like to see her have a little more spark than she presented.”[37]  X told Mr L she wanted no more time, and “may be a tiny bit less” with the Father.[38] Mr L says that X does want to know the Father. 

   [37] Transcript, Mr L, 21 March 2013 at page 13

   [38] Exhibit 1 at paragraph 47

1. Y presented with “considerable spark. He was quite adamant about what he wanted and didn’t want, and was able to communicate that in a lively fashion.”[39]  He described feeling bored, rejected and unhappy for much of the time he spends with the Father.  Mr L says Y wants significantly less time, or no time with the Father.  Mr L says that Y cannot tolerate the amount of time he currently spends with the Father. He is acting out in angry and risk-taking ways.  He is too young to understand the ramifications of the Father’s condition and would be unlikely to understand the importance of him knowing and having a relationship with the Father. 

   [39]Transcript, Mr L, 21 March 2013 at page 13  

2. Mr L says the children’s expressed views “are consistent with their respective experiences of spending time with their Father”[40] and should be taken into account. 

   [40] Exhibit 1 at paragraph 53

3. I accept Mr L’s assessment and do have regard to the children’s expressed views in reaching my decision.    

The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

1. The children have a close loving relationship with the Mother and totally depend on her day to day.

2. As already noted, the children are not close to the Father. I find that Y feels rejected by the Father.  I find that although X wants to know the Father, she is apprehensive of him, and what he might do, as a result of incidents earlier described, such as his behaviour at her school, Y running away from him, the Father’s comments to her about the Mother’s religion, the Father’s many trips with her to hospital when she has been unwell, and being subjected to excessive tutoring.  It is noteworthy that in August 2012, the Father himself, in a letter to the Mother’s solicitor, says Y is unhappy about going to his home on a Monday and Tuesday afternoon.[41]  

   [41] Mother’s Affidavit sworn 21 February 2013 at Annexure N

3. According to the Father, the children do not relate well to the paternal grandmother, partly because of her limited English.  He says that the paternal grandmother has very different views from him about parenting, so he and the paternal grandmother regularly argue in front of the children, including over how Y should be punished for misbehaving. The Mother says the paternal grandmother is “not a warm person”.  I am not satisfied the paternal grandmother is a significant figure in the children’s lives.   

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

1. I agree with Mr L that the Mother supports the children having a good relationship with the Father, but is worried that he confuses them, that X is apprehensive of him and that Y feels rejected by him. The Mother has always complied with Court orders and believes it is important for the children to know the Father and therefore spend time with him. The Mother does not want to restrict the Father from attending important events for the children, and is happy for them in their extra curricular activities.  I accept that the Mother’s concern is the children’s lack of enjoyment of their relationship with him. 

2. The Mother says that when they were together, the Father used to criticise her constantly for being a bad mother and reported her to the Department of Community Services for lacking capacity to care for the children. The Mother says the Father thinks that a good mother should never raise her voice, never show sadness or any other negative emotion around children. She says the Father was fixated on things being tidy, and criticised the Mother if the home was not in order.  The Mother has concerns about the Father continuing to criticise her in front of the children, with resulting distress to the children.  I accept the Mother’s substantially unchallenged evidence on this issue.

3. I give moderate weight to this issue. 

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. I accept Mr L’s assessment that the quality of the children’s relationship with the Father is likely to improve if they are not compelled to spend as much time with him as they presently do. This would in turn, benefit the children. I also accept Mr L’s view, supported by the Independent Children’s Lawyer, that an increase in time would cause further damage to these relationships. I find no basis in the evidence for the Father’s counsel’s submission that increased time with the Father would benefit the children. I give substantial weight to this finding. 

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

1. This factor is not applicable. 

The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

1. I have earlier made findings as to the Father’s present incapacity to meet the children’s emotional needs, and as a result, the risky behaviours demonstrated by the children when taking themselves back to the Mother’s home unsupervised. I am not otherwise persuaded that the Father lacks the capacity to care for the children physically. However, I find examples of his poor parental judgment in, firstly, his failure to give the children dinner every evening and his failure to engage the children sufficiently to prevent their at least daily requests to return to the Mother during the April 2012 school holidays, and secondly, in his usual choice of activities for the children when they are with him on alternate weekends which rarely involves healthy interaction with him.    

2. The parties disagree as to how much involvement the Father had with the children’s day to day care when they were living together. The Father claims to have been the children’s primary carer when they were in Australia in their early years, though conceded his version of the care arrangements might not be entirely accurate. The Mother says she never relied on the Father to care for either child when she returned to work after periods of maternity leave, though she acknowledges the Father had some limited involvement in their care. I prefer the Mother’s evidence on this issue but I am not satisfied anything of significance turns on this finding.   

3. I find the Father has a strong interest in the children’s education, and if with professional assistance, he could learn to assist the children “in a balanced way with their educational needs and read their emotional cues” his capacity to contribute to their intellectual needs may improve.[42] 

   [42] Transcript, Mr L, 21 March 2013 at page 11

4. The Mother was diagnosed with depression in early 2006, when still living under the same roof with the Father, and says she was prescribed anti-depressant medication for a few months. As already noted, the Father alleges the Mother’s depressive condition caused her to behave in a hostile manner towards the children.  However, since then, the Father raises no issues about the Mother’s parenting capacity, and there is no other evidence which calls into question the Mother’s competence as a parent. The Mother is caring for the children day to day. She has the children actively engaged in a diverse range of extra curricular activities, and according to their school reports, both children are progressing well.[43] The Mother impressed me as a caring and capable parent.  

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

[43] Exhibit 2

1. The children have a Peruvian heritage. Both parties were born in Peru and lived there until adulthood. The Mother has taken the children for a holiday to Peru in the 2011 Christmas school holidays and they spent many months there with the Mother when they were younger.  I am satisfied that the children will remain connected to their South American culture. 

2. The Mother says that X has been diagnosed with Attention Deficit Hyperactivity Disorder because she is easily distracted and has difficulty focusing on tasks.[44]  However, X has had tutoring outside school and a mentor at school to assist her once a week with class work which has led to an improvement.  As already noted, Y is academically gifted. I have regard to these matters. 

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

[44] Mother’s Affidavit sworn 21 February 2013 at paragraph 94

1. The Father acknowledges that the Mother has worked throughout their relationship, with short periods of maternity leave after the birth of each child.  He says the Mother was the primary breadwinner. As already noted, the Mother has carried almost exclusive responsibility for all aspects of the children’s care, at least since separation, and for lengthy periods before separation. The Father has made only occasional minor contributions towards the children’s financial support, and has met none of the fees for the children’s many extra curricular activities. I find that the Father has shown a poor attitude to the responsibilities of parenthood.   

Any family violence involving the child or a member of the child's family

1. I have nothing to add under this factor.

Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or, the making of the order was contested by a person

1. This factor is not applicable. 

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

1. The parties have been unable to discuss issues concerning the children, probably as a result of the Father’s difficulties, addressed earlier in these Reasons. The parties have vastly different approaches to parenting generally, but particularly in relation to the children’s education and the children’s religious upbringing. I agree with the Mother’s counsel’s submission that there is likely to be further litigation unless the Mother has sole parental responsibility for decisions concerning the children.  

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with the child, and to communicate with the child; and has facilitated, or failed to facilitate, the other parent participating in making decisions about major long-term issues in relation to the child and spending time with the child and communicating with the child; and has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

1. I have nothing to add under this factor. 

PARENTAL RESPONSIBILITY

1. The Mother, supported by the Court expert and the Independent Children’s Lawyer, seeks an order for sole parental responsibility for major long term decisions relating to the children.  The Father seeks an order for equal shared parental responsibility.

2. Section 65DAC of the Act applies whenever a parenting order provides for shared parental responsibility, and requires the parties to consult the other person and to make a genuine effort to come to a joint decision about any major long term decisions concerning the children. Section 61DA requires the court to apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility for the children. 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. While there is some evidence of family violence in this case, I am not persuaded it supports a conclusion that the presumption of equal shared parental responsibility does not apply.    

4. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the children for the children’s parents to have equal shared parental responsibility.[45]

   [45] Section 61DA(4) Family Law Act 1975

5. I agree with the submissions of the Mother’s counsel and counsel for the Independent Children’s Lawyer that it would not be in the children’s best interests for the parties to have equal shared parental responsibility. There are a number of reasons:

   i)An order requiring the parties to consult would not be workable.  The parties do not communicate and as a result of the Father’s condition, I am not satisfied their communication is likely to improve. I find no basis in the evidence for the Father’s counsel’s submission that the parties are able to communicate. I find the Father’s failure to contact the Mother when Y was missing at the shopping centre, a vivid example of the Father’s abdication of his responsibility to communicate with the Mother, even when an emergency arises.

   ii)I find that attempts at consultation are likely to cause conflict between the parties and the conflict is likely to involve the children, and impact on them adversely, given the Father’s involvement of the children in these proceedings.

   iii)I find that if the parties are required to consult each other on major issues, the children, X in particular, are likely to be used as messengers between the parties, which I find is a stressful and inappropriate role for children. 

   iv)I have made findings that the Father lacks insight, has poor parental judgment and has limited capacity to consider issues from the children’s perspective. I agree with the Mother’s counsel’s submission that the Father is unable to assess priorities in the usual way.  On religious issues, I find the Father has, unreasonably, been unwilling to consider the children’s wish to attend scripture lessons and to participate in church related activities with the Mother. X told Mr L she enjoys going to church and the activities associated with church.[46] Nor has the Father considered the real dilemma for the children, who live the vast majority of their time with the Mother, a practising Catholic, but are effectively prohibited from attending church because of their concern about the Father’s strongly negative views about the Catholic Church.  I am persuaded there could never be consensus between the parties on religion. 

   v)I agree with counsel for the Independent Children’s Lawyer’s submission that the Father has been unwilling or unable to agree to quite simple propositions, for example, permitting the Mother’s solicitor to sight a tenancy agreement in accordance with Court orders. 

   [46] Exhibit 1 at paragraph 48

6. I am satisfied that the Mother has demonstrated a capacity to decide issues sensibly and responsibly.

7. The Mother will therefore have sole parental responsibility for major long term decisions concerning the children. The provisions of s.65DAA therefore do not apply. However, the Court must nevertheless consider significant and substantial time between the children and the Father, because that is the order sought by the Father.

Discussion 

1. Mr L believes the children will benefit from spending some time with the Father. However, in his view, that time should be limited to no more than 4 hours a fortnight, to achieve any improvement in the quality of those relationships.  He says that, given her compliant nature and her wish to know the Father, X would feel guilty and responsible if she did not have any relationship with the Father.  Importantly, Mr L says that the children need to know “their own narrative”,[47] be aware of their history, and to learn from the issues in their relationship with the Father.

   [47] Transcript, Mr L, 21 March 2013 at page 14

2. Mr L agrees with the Mother’s observation that there is “no fun, joy or humour” in the children’s relationship with the Father,[48] and the children do not enjoy their time with him. Mr L recommends 3-4 hours on alternate weekends as the appropriate length of time for the children to spend with the Father. He says that is the least amount of time needed to engage in activities. In his view, longer than 4-5 hours would leave the children feeling angry, frustrated and unstimulated.[49]  He says the current overnight time between the children and the father is harmful to them.[50] The children, he says, need to be given some relief from spending time with the Father, whose quality of interaction with them is so poor, and who does not meet their needs. Mr L says that significantly reduced time may enhance the quality of the children’s time with the Father.

   [48] Ibid at 14

   [49] Ibid  

   [50] Ibid at 10

3. The Father’s counsel submits that the Court should order increased time immediately, gradually increasing to substantial and significant time over a 2 year period.  The Father’s counsel submits that the Father has shown a willingness to learn and a dedication and commitment to the children. For example, he has reduced the amount of time he spends tutoring X. Counsel submits the Father’s commitment to the children’s education will become more significant over time.

4. The Independent Children’s Lawyer’s counsel submits that the children should spend 5 hours on alternate Saturday afternoons, rather than 3-4 hours as recommended by Mr L. Counsel submits that the Father’s evidence suggests that the children have enjoyed their time with him more since he has purchased an Ipad and 3 new Nintendo games for them. The Mother’s counsel submits that a period from 3 to 5 hours on alternate Saturday afternoons is acceptable to the Mother.    

5. I am not persuaded the evidence supports the Father’s counsel’s submission. I find that the Father’s proposal for how he would spend the additional time he wants revealed a lack of understanding of the serious concerns raised about him in the expert evidence. I find that the Father’s emotional neglect of the children, the physical risks that result and the Father’s lack of capacity to engage appropriately or empathise with the children, remain live issues.

Determination

1. I am not satisfied that an order for a period in excess of 4 hours is in the children’s best interests. Time ordered is for positive engagement between the children and the Father, not merely for the sake of spending time. While I accept that the children were pleased to have the new games the Father purchased, I am not satisfied these new games are likely to change the dynamic between the children and the Father.  Each game must be played by one child at a time, and invites no interaction from the Father. If the children spend their time inside the Father’s home, which I find likely in the winter months, I have determined 4 hours is long enough. If the Father chooses to take the children on an outing of interest to them, I have provided for time to be extended by an hour or two, as long as the Mother agrees. Given her wish to support the children having a healthy relationship with the Father, I am in no doubt that if the Mother believes the children will enjoy the outing proposed by the Father, she will agree to extended time.  

2. As already noted, Mr L believes the Father is willing and able to take appropriate advice and that he looks for advice. I find the evidence, at least to a limited extent, supports this view. The Father was prepared to consult Dr S about communication issues with the children and he says he will attend further sessions. When counsel for the Independent Children’s Lawyer suggested the children might like to take their instruments to his home, to play him a piece of their music, the Father thanked her for her suggestion.  I therefore accept that it is possible for the Father to learn to develop a more joyful, exuberant relationship with the children, to engage in fun activities with them, and I urge the Father to seek and to heed professional advice on the interactive component of his relationships with the children. The Father is encouraged to show his therapist a copy of Mr L’s report, and a copy of these Reasons for Judgment. It is hoped that if the Father chooses to be professionally assisted over time, and therefore his capacity for appropriate and empathic engagement with the children develops, the children may wish to spend more time with him. 

1. I have made orders providing for the children to travel overseas with the Mother.  The Father did not oppose these orders for travel, proposed by the Independent Children’s Lawyer. 

2. I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of X and Y.  

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Sexton FM.

Date:  5 April 2013