Renna & Grenville
[2023] FedCFamC2F 1638
•6 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Renna & Grenville [2023] FedCFamC2F 1638
File number(s): NCC 328 of 2022 Judgment of: JUDGE BETTS Date of judgment: 6 December 2023 Catchwords: FAMILY LAW – Parenting – one child, aged 8 – child has anxiety and has been resistant to overnight time away from the mother since separation - where the Father has a somewhat harsh parenting style and lacks empathy – where the Father shared parental responsibility – where the Father seeks that the child immediately commence overnight time – where the Mother seeks that overnight time commence when the child turns 10 in accordance with the single expert witness’ recommendations – where the Court considers overnight time commence when the child turns 10 and that the Mother have sole parental responsibility – best interests of the child. Legislation: Family Law Act1975 (Cth), Pt VII Cases cited: Lainhart & Ellinson [2023] FedCFamC1A 200 Division: Division 2 Family Law Number of paragraphs: 220 Date of last submission/s: 5 December 2023 Date of hearing: 4 and 5 December 2023 Place: Newcastle Solicitors for the Applicant: N/A – Self-represented Counsel for the Respondent: Mr Bithrey Solicitors for the Respondent: Burke Mead Lawyers ORDERS
NCC 328 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RENNA
Applicant
AND: MS GRENVILLE
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
6 DECEMBER 2023
THE COURT ORDERS THAT:
1.That the Mother have sole parental responsibility for the child, X born in 2015.
2.X shall live with the Mother.
3.X shall spend time and communicate with the father as follows:
(a)From the date of these orders until 2025 being the date X turns ten (10) years of age:
(i)For eight (8) hours each alternate weekend as agreed but failing agreement, each alternate Sunday from 9.00am until 5.00pm;
(ii)On Father’s Day from 9.00am until 5.00pm; and
(iii)In 2024, Christmas Day from 9.00am until 5.00pm.
(iv)In 2025, Easter Sunday from 9.00am until 5.00pm.
(b)From 2025 once X is aged ten (10) years, and provided that Orders 6 and 7 are complied with:
(i)Each alternate weekend from 5.00pm Saturday until 5.00pm Sunday;
(ii)On Father’s Day from 9.00am until 5.00pm; and
(iii)In 2027 and each odd numbered year thereafter, Easter Sunday from 9.00am until 5.00pm.
(c)From 2027 once X is aged twelve (12) years and provided that Orders 6 and 7 are complied with:
(i)Each alternate weekend from 9.00am Saturday to 5.00pm Sunday;
(ii)On Father’s Day from 9.00am until 5.00pm;
(iii)In 2027 and each odd numbered year thereafter, Easter Sunday from 9.00am until 5.00pm.
4.In addition to the time at Order 3 above, X spend time with the Father during school holidays that immediately follow Term 4, as follows:
(a)From the date of the Orders until 2025, five days during the school holidays from 9.00am until 5.00pm each day with such days to be agreed between the parties in writing but failing agreement to occur as follows:
(i)In Christmas holidays 2023/2024, on five consecutive days from the third Sunday in January until the following Thursday.
(ii)In Christmas holidays 2024/2025, on five consecutive days from 25 December until 29 December.
(iii)In Christmas holidays 2025/2026, on five consecutive days from the third Sunday in January until the following Thursday.
(b)From 2026/2027 school holidays, one five night block period of time in the school holidays to be agreed between the parties but failing agreement with such time to occur as follows and provided that Orders 6 and 7 are complied with:
(i)In Christmas holidays in 2026/2027 and each alternate year thereafter, from 9.00am on 25 December until 5.00pm on 30 December.
(ii)In Christmas holidays in 2027/2028 and each alternate year thereafter, from 9.00am on the third Sunday in January until 5.00pm on the following Friday.
5.Notwithstanding any other order herein, X’s time with the Father shall be suspended on the following occasions:
(a)The Mother’s Day weekend;
(b)In even numbered years, the Easter weekend;
(c)In 2023 and each alternate year thereafter, from 20 December until 10 January;
(d)In 2024 and each alternate year thereafter:
(i)On 24 December; and
(ii)From 31 December until 21 January.
6.That the Father shall within 14 days of the date of these Orders enrol in and thereafter complete the next available:
(a)Parenting After Separation or Parent not Partners course through B Contact Centre or C Centre;
7.That upon the Father completing the course provided for in the above Order he shall within seven (7) days of receipt of same provide a copy of the certificate of completion to the Mother.
8.In the event that the Father fails to complete the course provided for in Order 6 and provide the certificates of completion to the Mother, then the increase in time provided for in Orders 3(b) and 4(b) shall not commence, and the Father’s time shall remain as set out in Order 3(a) and 4(a).
9.That the Mother be at liberty to nominate one period of up to twenty one (21) days in each calendar year in which the Father’s time will be suspended to enable to the Mother to take holidays with the child, and the Mother shall provide the Father with not less than fourteen (14) days written notice and the Father’s time will be suspended for the durations of that period.
10.Changeovers shall take place by the parties meeting at X’s extra-curricular events in the event X is partaking in same at the time of a changeover, or otherwise the Father collecting X from and returning him to the Mother outside the Mother’s residence.
11.The Father is restrained from physically disciplining X or causing or permitting any third party to physically discipline X.
12.The parties are restrained from denigrating one another to or in the presence or hearing of X, or causing or permitting any third party to do so.
13.The parties are restrained from discussing these Court proceedings with X or showing X any Court documents, or causing or permitting any third party to do so.
14.That pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth) the Mother is permitted to obtain a passport for X without the consent of the Father.
15.That pursuant to section 65Y of the Family Law Act the Mother be at liberty to travel overseas with X during her time with X pursuant to these Orders provided that at least twenty eight (28) days prior to travel she provides the Father with the following:
(a)Proposed departure and return dates.
(b)Flight details including airline(s), forward and return flight details.
(c)An itinerary of where X will be staying and the name(s) of any other person(s) attending.
(d)Contact details for all accommodation.
16.These Orders authorise the Father to obtain from the school at his expense copies of all documents, reports, school photograph order forms and any other correspondence normally sent by schools to parents of a student.
17.This Order authorises the Father to obtain any medical information in relation to X from X’s General Practitioner at the Father’s cost.
18.Nothing in these Orders prohibits or is intended to prohibit the Father from:
(a)Attending at X’s sporting or extra-curricular events subject to the policies of the extra-curricular care provider
(b)Arranging a parent/teacher interview with the school if the school is willing to facilitate this.
19.The Mother is to provide a copy of this Order to any school attended by X from time to time as well as to X’s usual General Practitioner.
20.The parties will advise and keep the other party advised of their current address and contact details, including a telephone number and an email address to be used to communicate with X.
21.If X expresses a wish to communicate by telephone or electronic means with the other parent then the parent who has X at that time will take all reasonable steps to facilitate such communication.
22.Unless there is an application for costs brought within twenty eight (28) days the proceedings are to be removed from the list of active pending cases.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript so as to make them easier to read.
OVERVIEW
These are parenting proceedings in relation to a young boy, X born in 2015.
X is the son of the applicant father in these proceedings, Mr Renna (“the father”) and the respondent mother, Ms Grenville (“the mother”). The parents’ relationship commenced in 2011, they married in 2014 and they finally separated on 18 October 2018 at which time the mother moved out of the former matrimonial home with X.
Since that time, there has been no need for these parties to have formal Court orders regulating their parenting arrangements for X. That is not to say that things have proceeded smoothly, far from it. There have been many difficulties between these parents, but the case is somewhat unusual in the sense that there are no extant substantive interim parenting orders.
At present, the father is spending eight (8) hours with X on an alternate Sunday basis. His time with X post-separation has, as a general statement, been very limited in the sense that he has spent daytime only with X save for two (2) attempts at overnight time both of which were unsuccessful.
The real debate in this case is whether:
·the parents should have equal shared parental responsibility for X as the father seeks, or whether the mother should have sole parental responsibility for X as she seeks;
and
·secondly, the pace at which X’s time with the father should graduate to overnight time and the extent of that overnight time.
It would be fair to say that this case involves a particular difficulty for X in the sense that he is a sensitive and rather anxious boy. He clearly witnessed some fairly significant conflict between his parents before separation and he was already experiencing anxiety back then as was evident at daycare when, in the days before separation, the daycare workers made contact with the Department of Communities and Justice New South Wales because of the sheer level of anxiety and concern that X had in leaving the centre with the father at that time.
It would be fair to say that X has remained an anxious child and that his anxiety is very much at the centre of the Court’s consideration in this case, although it is not, of course, the only consideration.
THE TRIAL
The matter proceeded to trial before me on Monday and Tuesday this week, although in the result the matter, in fact, only took a little over one hearing day.
The father was self-represented. He read and relied upon his Case Outline Document filed 29 November 2023, his Amended Initiating Application filed 3 November 2023 and his affidavit filed 3 November 2023.
The mother was represented by Mr Bithrey of counsel, instructed by Ms Purcell, solicitor. Mr Bithrey read and relied upon a Case Outline Document filed 1 December 2023, the mother’s Third Amended Response filed 6 November 2023 and the mother’s affidavit filed 6 November 2023.
Additionally, there were various exhibits that were tendered in the course of the proceedings. Significantly, there was a Family Report prepared on a private basis by Ms D which was marked as exhibit 1. Ms D gave some evidence at the hearing and was the subject of cross-examination from Mr Bithrey.
The mother tendered a ‘Parenting after Separation’ certificate of late 2022 which became exhibit 2. Mr Bithrey also tendered numerous pages of a “tender bundle” which collectively became exhibit 3.
In arriving at a decision in this matter, I have had regard to all of that evidence, as well as to the submissions made by the parties. The evidence is fresh in my mind. I intend to refer not to all of the evidence but only to the evidence that I have found to be of most significance or relevance. It should not be assumed that my failure to refer to any particular piece of evidence means that I have overlooked it or not taken it into consideration.
I should also just correct one matter for the record. At the hearing I gave the father leave to rely upon his Amended Initiating Application and affidavit - mistakenly thinking they had been filed on 3 December 2023 rather than 3 November. That was entirely my error. Leave was unnecessary. It became apparent to me in the course of the hearing that I was in error and I had intended to raise it before the hearing concluded but frankly I forgot to do so. It was a minor matter, really. It has no impact on my decision but I simply want to correct the record and clarify that it cannot be suggested that the father’s material was late; my order granting him leave to rely upon it was made entirely due to my own error in misreading the filing date.
CHRONOLOGY OF RELEVANT EVENTS
The father was born in 1974. He is presently 48 years of age and a health care worker. He seems also to conduct a small business.
The mother was born in 1987. She is presently 36 years of age and she also works as a health care worker.
The relationship
In terms of the parties’ relationship, I have had the benefit of seeing both of them in the witness box and of having read their affidavit material.
The father was cross-examined at some length by Mr Bithrey and it would be fair to say that in many respects he was an unimpressive witness.
The Family Report writer had observed that the father had an “air of superiority” about him and that he spoke about the mother with contempt. Regrettably, I tend to agree with those observations having seen him in the witness box and having considered the evidence in this case.
I accept the mother’s evidence that in the course of the relationship the father was initially quite romantic and a perfectly good intimate partner but that over time the mother began to observe that he had a lot of, as she describes, “unfortunate” troubled relationships with friends and family. She observed that he often had arguments with the people closest to him and that he could be quite critical and demeaning when speaking to her about them. He also had an unfortunate tendency, which I can say on the evidence has certainly continued to date, to simply cut people out of his life.
The father is a strong personality. I would describe him as having the attitude of “you’re with me or you’re against me”. He sees the world in somewhat black and white terms.
When the parties were together in a relationship the father would disparagingly refer to his previous partner, Ms E, who is the mother of the father’s older child, Ms F, now 21 years old. I accept the mother’s evidence that the father told her during the relationship words to the effect that Ms E was “a dumb [tradesperson]”, that she came from “a bogan family” and that she “could not cope with being a mother” as she was, apparently, “too selfish”. I accept the mother’s evidence that he made such comments about Ms E - even in the presence of Ms F.
I accept the mother’s evidence that the father increasingly became a difficult intimate partner who was quite verbally critical of her. That is to say, the criticisms that he extended towards others in his orbit - including his own extended family - was also extended towards the mother over time.
The father seems to have had some difficulty managing his emotions and, in particular, his anger. The parties began to argue and the mother also observed and had serious concerns about the father adopting an overly disciplinarian approach to X. Even as a baby the father would on occasions smack X for crying. The father’s attitude was that, to use the colloquial, X needed to ‘toughen up’. He would lecture the mother about how she needed to simply ‘toughen him up’ in that way rather than being so empathetic and sensitive to his crying.
The father adopted with the mother the same demeaning criticisms that he offered towards Ms E. He told her that working as a health care worker was “a job for boring, dumb people” and that he “could not believe she did not want to further her career”. The father told her - and I am sure he believes this - that he himself was better than that and that he was only doing health care to help him train as a sports person; he also told her he would achieve more because he had a creative entrepreneurial mind.
Of course, while the father was off attending to entrepreneurial dreams and aspirations and, to be fair, also running in numerous sporting events, the mother was left to care for X. But it seems that the father did not have much respect for that particular parenting role.
I accept the mother’s evidence that when she tried to talk about X’s routine with the father he said things to her such as, “You women pretend like it is hard. It is not hard. Feed them, change them and put them to bed. Simple.” He claimed that he had raised one (1) child on his own, this being a reference to Ms F, and told the mother that it was easy.
He complained about X crying and told the mother that, “This is why I half did not want a kid. Do you think I want to listen to that all day? You women, you want a fucking baby and then you cannot cope.”
When the maternal grandmother visited the mother from Western Australia after what had been, seemingly, a traumatic birth of X the father, essentially, excluded the maternal grandmother. He did not want her there. He did not want her ‘in his space’ as it were.
The father would complain to the mother when he came home from work if she was not able to have interesting conversation with her - telling her that she should be watching some news, “so you can talk about something interesting and intellectual with me.”
As I have indicated, discipline of X was a significant area of dispute between the parties and it seems to me that the parents had entirely different approaches to how to raise this little boy.
There was a particular event which occurred in mid-2017 when X was aged one year of age when the mother got out of the shower to find the father smacking him because X had, apparently, wanted to be with the mother. She was upset and pulled the father off X and in the struggle the father pushed both X and the mother to the ground. This was family violence on the part of the father.
I accept the mother’s evidence that on another occasion in late 2018 while the parties were on holidays at Region G that X started crying because the father ate one of his chicken nuggets from, apparently, X’s first McDonald’s Happy Meal. Now, to be fair, X was not quite three (3) years of age at the time. His decision to cry was probably not unreasonable but the response from the father was to smack his bottom hard with his hands and tell him, “You need to learn to share.” This was abusive parenting, in my view, and certainly nothing like what the Court would expect to see in the modern world in terms of empathetic parenting for a very young child.
The mother observed that the child became frightened of the father particularly if he was drinking alcohol when he could be more verbally abusive towards her. The father complained to the mother that she was “going to turn X into a poof”.
In general, the relationship between the parents was unhealthy and one in which the father regularly demeaned the mother and made her feel inadequate or attempted to do so, while at the same time ‘propping himself up on a pedestal’ which, from my reading of the evidence, was far from deserved. If the mother asked the father for help with X’s care he responded with words to the effect of, “You cannot cope. You are at your max looking after one child” and telling her, as well, “You will only get a second child after I see how you go.”
I also accept the mother’s evidence that when the father became angry, which was increasingly regular as the relationship spiralled downhill, that she felt that she was ‘walking on eggshells’. The father would clench his fists, punch the door and become quite furious with her if she had not shut the windows - because he did not want the neighbours to hear him yelling. This was, in my view, family violence.
The father had a disparaging negative attitude towards the mother and it makes for rather sad, if not miserable, reading in her affidavit. As I indicate, having seen the father in the witness box I have little doubt accepting the mother’s evidence as to these ‘early’ events.
Post-separation parenting of X
Following separation, the parents found themselves in circumstances where X was living primarily with the mother and not spending much time with the father. He was rather angry about that because, from his perspective, he should have been having quality time with X, but X was not ready to spend significant amounts of time with the father who he found to be a little bit frightening, rather intense and who simply had little or no empathy for X’s own distress.
The parties entered into a Parenting Plan on 23 November 2018 pursuant to which they agreed the father would spend time with X on alternate Saturdays between 9am and 5pm with changeovers to occur at McDonald’s at Suburb H.
In late 2018 the father sent the mother an email in which he said he was very sorry that she had been at breaking point during the relationship and that she was feeling undervalued and fearful in her own home. He said:
I am understanding now that whilst there was no physical violence there was a simmering emotional abuse perpetrated by me…
Contrary to what he said there was, however, physical violence. At least he acknowledged the simmering emotional abuse which is, to some extent, to his credit.
But the father was upset and angry about the relationship breaking down and, unfortunately, X was caught in the middle of all of that. From the mother’s perspective, she did not want the parents’ relationship to continue at all. She saw that it was a toxic relationship between them and simply wanted to put in place arrangements for X to see his father that worked for X.
The father, on the other hand, conflated and connected both his relationship with the mother and his relationship with X in a way that was very unhelpful. The father was spending limited time with X but was clearly wanting to reconcile with the mother.
The parties tinkered with the arrangements in August 2019 whereby they reached agreement that the father would have X from 9am until 5pm on alternate Saturdays as well as on the intervening Saturday from 12pm until 5pm. However, it seems that the father was not happy about the fact that the parents were not getting back together and he was feeling frustrated or, perhaps, pigeon-holed in the situation.
His ‘all or nothing’ approach or his ‘black and white’ approach was, again, on display because in September of 2019 he cancelled every single weekend visit with X. His associated messages to the mother were abrupt and to the point. No real explanation was given. It was a ‘like it or lump it’ situation.
And, of course, the problem for the mother was she then had to navigate the uncertainty of whether or not the father was going to turn up. It was not just the father acting out against the mother because he wanted their relationship to continue. He was actually, positively ensnaring X in all of this negativity, which was absolutely not in X’s best interests.
On 29 September 2019 the father said to the mother:
Either take [X] and move back to [City J], or stay in [City K] and get back together with me. I don’t want you in [City K] if you’re not with me. I don’t want to be a part-time parent.
The reference to City J is that the mother’s parents live in City J, and the father expressed a fear or concern that the mother was going to relocate there with X. I do not understand the basis for this concern at all. The father still seems to hold that concern even now; it appears in his Case Outline Document filed on 29 November this year. There is no evidentiary basis for the father to have any concern about that issue whatsoever.
The bigger point, though, is that the father was adopting an ‘all or nothing’ approach with X; he simply did not want to, or could not bring himself to, have a relationship with his own child if he could not have a relationship with the mother as well. His inability to separate adult issues from child issues is rather sad.
The father does accept that he was acting out on this occasion. In my view, he was behaving in a coercive manner. I also pause here to note that the Family Report writer in this case, Ms D, said that:
The difficulty with young children is that when a parent does not turn up for a contact visit, then the child does not blame the parent but tends to blame themself.
X was already an anxious child. The father’s actions in September of 2019 were unhelpful for X and, in my view, likely to be damaging.
From October 2019 onwards the father resumed his visits with X. He was pushing for the mother to give him more time than she was willing to give. I accept the mother’s evidence that in October of 2019 the father requested that X’s time change from eight (8) hours once per fortnight to four (4) hours each and every Sunday. Ultimately, the parties agreed to change the day to an alternate Saturday from 8.30am until 4pm.
Though the father has no recollection of it, I accept that there was a trial overnight stay with him on 14 January of 2020. This was an attempt to see whether X would cope with a night in the father’s care. X stayed the night, but when he returned the next day the mother found him to be exhausted and clingy. I accept her evidence that she understands that the child had been woken up at 5am in the morning because the father’s alarm had been set so that the father could go running training at 5.30 am. The father’s daughter Ms F, who was with the father at that time and was 17 years old, had been woken up to look after X.
The father obviously wanted to press on and to be able to expand his time with X, but this was not a particularly successful or particularly child‑focused attempt to do so.
The overnight visit was one which X clearly, to some extent, struggled with, and I very much doubt that an alarm set at 5am - which was entirely to suit the father’s agenda, not X’s – would have actually been in X’s interests.
The father was pressing for more time. The mother was resistant. The father lashed out. In early 2020 he told the mother she was a liar with zero integrity. He told her that she was “Satan”.
The parties continued to have a testy and difficult relationship whereby the father was wanting to spend more time with X and the mother was reluctant.
Incident at the sports centre in early 2020
In early 2020 there was a particularly unpleasant incident at the sports centre when the parties met and ended up having a discussion about parenting arrangements.
The mother had agreed with the father to meet the father at the public sports centre where X was learning to ride his bike; X was about four years of age at the time.
When the mother arrived the father was already there, and he immediately started trying to talk to her about parenting arrangements. She tried to encourage him to spend the time with X, but the father was fixated on trying to discuss parenting issues instead. After playing with a toy for a few attempts X was quite unable to get his father to pay him any attention. X was obviously craving a bit of attention from his father, but his father was much more interested in having this discussion with the mother about parenting arrangements.
The father said to X, who no longer wanted to play with the toy:
So you’re going to be a quitter and quit when it’s too hard.
X was only four years old. And this comes back to my observation about the father and his harsh, authoritarian parenting style and his lack of empathy. Four (4) year olds are not quitters.
The father said to the mother that he needed more access to X:
…so I can reverse the [Grenville] infection –
this being a reference to the mother’s surname of [Grenville]. It was disparaging. It was totally inappropriate.
The mother tried to ignore the father, who was continuing to press home the issues. She ended the conversation.
By this time, poor X had moved away and was sitting about 50 metres away from the parents. The mother told the father that she was leaving with X and that he could email her. The father then said:
I am not agreeing, because you don’t get to call the shots. This is not an argument. This is a robust conversation. You’re walking away because you’re a quitter, just like you quit the marriage.
X walked towards the mother as he saw her packing up; the father then picked X up and started walking away with X in his arms. The father was saying:
See this? There are no Court orders to stop me leaving with him. I can just walk away.
X, perhaps unsurprisingly, started crying and was clearly distressed; he was holding his arms out for the mother while the father was walking away. The father then yelled out:
Give me two minutes with my son!
X was screaming “Mum!” and kicking and trying to get himself free. The father had the good sense to not actually take X with him but to simply let him go, which I give him credit for, but the whole situation was a complete disaster for X and it caused him a degree of distress. The mother also reported the event to Police.
Now, the father has had a long time to reflect on this event. What troubled me is that three and a half (3 ½) years after it occurred he was asked the simple question by Mr Bithrey to the effect:
Do you agree that by taking [X] in this way that you were immersing him in the dispute?
to which the father responded “no”. I do not understand the father’s answer. He is an intelligent, educated man. He knows better. There is a blind spot with the father when it comes to basic insight if he cannot acknowledge that that is exactly what he did.
The father emailed the mother the next day, telling her the following:
Hi [Ms Grenville]
That episode was horrible and cannot be repeated. I am highly emotional and frustrated with my level of contact with [X]. I have journaled dozens of requests for more snippets of care, and 95 per cent you have denied – even robbing me of Easter egg fun which you got to enjoy with him – even choosing day care over me. It’s just not fair, and that is what led to yesterday’s flashpoint. I have been very patient with you, even as you have abandoned all logic and empathy for me. As [Mr L]–
I am not sure who ‘Mr L’ is –
said the other day, you’re unrecognisable as a person. Your betrayals and lies have been, frankly, shocking. I am meeting with my lawyer on Monday to begin the process of fighting for my parental rights. Until there are legal consent orders you can do whatever you like in regard to withholding [X] … and so can I. I have spoken to the police about the process. If I don’t give [X] back and you call the police, they pop in and make sure he is okay, but they do not intervene otherwise. This is problematic, as you can imagine, as trust has evaporated between us, and your track record suggests you will do whatever you want with no thought of me and what is fair. So consent orders are vital for peace of mind, yours and mine, as any breach is illegal. In the months it takes to come to agreement on a parenting plan I am appealing to you that in the meantime you do the right thing and cooperate with weekly access. I am off every Wednesday, for example, but I am flexible and happy to discuss what suits you. Let’s be civil, and fair and get this done.
The one thing that is completely absent from that email is any apology for what the father did at the sports court. In fact, he justifies what he did in grabbing X and walking away with him. Moreover, in my view, the email contained a threat to the mother which, incidentally, the father was unable to acknowledge or accept in the witness box. That is to say, he was threatening her that he could take the child, and that the Police would do nothing to help her.
But the father’s lack of empathy for the child, the lack of any remorse for what he did and the attempt to deflect all of the responsibility back on to the mother for what was a situation entirely provoked and orchestrated by the father on this occasion, is really rather striking.
Taking responsibility is not the father’s strong suit; having seen him in the witness box in this case I can say that with quite a degree of confidence.
Second trial of overnight time
Notwithstanding this problem at the sports centre in early 2020, there was a second attempt at overnight time with the father when he was staying at Suburb M in mid-2020.
Unfortunately, that particular visit did not work very well. The child was crying, and the father was seemingly unable to console him. He texted the mother saying:
[X] crying. Can you talk to him?
The mother called the father’s phone to speak to X, who was distressed; he could not really talk except to say, “Mum, Mum”. She tried to reassure him that everything was fine. X seemed to become settled a little later on, and the mother assumed that she was doing the right thing in trying to set a plan and stick to it.
This was, in fact, the last overnight time that occurred between the father and X. The child was very resistant to going back for further overnights after that point.
Father keeps X for longer periods than agreed
In mid-2020 the father had some time with X. The agreed arrangement was that he was to return X to the mother by 11am or earlier because the mother had a lunch on. Notwithstanding the agreement, the father did not return the child until 1 pm; again, an unhelpful thing to do in circumstances where the child was struggling in his care and where the mother was, clearly, left hanging as to what was actually going on.
The mother initiated some mediation. The father did not attend.
The co-parenting situation continued to limp on in something of a limbo state, and the next major event that occurred was in late 2020 when the father again unilaterally retained X but in circumstances that, in my view, reflect very poorly upon him.
On this particular day the agreement was that the child was to be returned to the mother at 5pm at McDonald’s, but when the mother got to McDonald’s the father was not there. She did not know where he was; he had not contacted her.
It emerges that the father had decided to go and take X to see the Christmas lights at Suburb N but without telling the mother anything about his plans and without seeking her agreement to extend his time; he was simply acting unilaterally. He was showing the mother who was boss.
The mother texted him at 5.04 pm saying she was there at the handover point and again at 5.21pm to say:
Is everything okay?
At 5.30 pm:
How far off are you?
At 5.46 pm:
You’re 45 minutes late. What’s going on? Is [X] okay?
Obviously, the mother was anxious; she was not to know whether the father and X had been in an accident or, frankly, what had happened.
The father deliberately ignored all of the mother’s messages. He was aware of them; he simply chose not to respond. He said in the witness box that he was at the Christmas lights with X, having a good time with his son, and he considered that to be more important, clearly, than responding to the mother’s messages.
At 6.04 pm the mother again texted the father to ask what was going on, and saying she would have to call the Police if she did not hear from him and that it did not need to be that way. She queried whether he had had an accident. She messaged him again at 6.37 pm saying:
It’s [X]’s bedtime, can you please drop him home.
The father had not responded to any of these messages. His only response came at 8.22pm when he said this:
He’s good. See you tomorrow.
The text contained no acknowledgement of the mother’s distress, no acknowledgement of the uncertainty that he had put her through over the previous three and a half (3 ½) hours. Zero empathy and zero insight for the fact that X had understood that he was going to be home with his mother at 5pm. It was a total act of callousness on the part of the father. And I use the word “callousness” quite deliberately. He has a callous streak; that is evident when reading the material.
In the result the mother ended up messaging the father at 8.53 pm asking:
Can you give me an address of where you are.
She had already contacted police, but that had been unsuccessful. She rang Ms F, who said to her word to the effect of:
Oh, no, [Ms Grenville]. He did the same thing to me with Mum. He’s not here. I am so sorry.
At about 10.30pm that night the mother unexpectedly received a knock on the front door; no-one was there but X, sobbing loudly. She ran out onto the balcony, and he yelled “Mummy, Mummy!”. The father had, effectively, brought X home because X was uncontrollably shaking, crying and upset.
The father had been unable to settle X. His ploy of keeping him overnight to teach the mother a lesson was a failure in which the child suffered the stress; further erosion of trust occurred in the relationship between the parents; but, importantly, again, there was no empathy shown by the father towards the mother in the situation that she was in and not much empathy for the child either.
The father suggested that the time he had had with X at the Christmas lights was “fine” and, effectively, sought to downplay things, but it is obvious that the child was distressed. This incident reflects extremely poorly on the father in my view. I accept that he was ‘proving a point’ to the mother, as set out in paragraph 63 of the Family Report, and I reject the father’s evidence in his trial affidavit that X “coped fine”.
The co-parenting arrangements continue to be difficult
It is obvious that X was anxious about going to see the father after this event, and I have little doubt that the mother was also anxious and that X would have picked up on that. The father was unrepentant, however; he was still seeking that time continue to occur in the usual way. And in early 2021 he and the mother had the following exchange. The father asked the mother if she was turning up the next day. She responded:
No. Give [X] some time; he’s still very disturbed by the thought of you not returning him. Hopefully, he comes good, and we can get back on track. It’s a shame. Thought we were getting somewhere.
The father responds:
You really don’t get it. It’s going to be a rough year for you.
I pause here. Zero empathy and a threat. The mother responds:
You just want to fight with me and to make my life miserable.
The father responds:
Your choices, your life, your misery: connect the dots.
The father takes no responsibility for his own actions. He accepted in the witness box that his real complaint in the last message was that the mother had left the relationship - but this had occurred way back in 2018, and the father was putting the child squarely in the middle of all of this.
The mother responded that:
I didn’t say I was miserable. I just said you want me to be.
In early 2021, after the mother did not turn up with the child, the father texted her to say:
I lodged a Police complaint about you not turning up yesterday; I will do this each time you don’t turn up.
This was, in fact, untrue. He admitted in the witness box he had spoken to a Police friend, but had not lodged a formal complaint.
The father’s time, nonetheless, resumed with X, and I accept the mother’s evidence that in early 2021 the father again kept X longer than was agreed. Ultimately, she got X approximately an hour late and had to go to his house to get him.
The situation was clearly becoming untenable. The mother wanted to engage in mediation, but it was unable to occur. The mother was given a Section 60I Certificate on the basis that mediation was deemed to be inappropriate.
It seems that in the period from around 13 February 2021 right up until 21 April 2021, the father cancelled visits with X. The parties were in something of a stalemate.
On 6 April 2021 the father emailed the mother, an email that is not specifically referred to in his affidavit except perhaps by way of an inferential reference. In his email he says the following:
Hi [Ms Grenville]
There is a property consent order, kid, on the Family Court site –
and his email goes on to talk about property. The email then goes on as follows:
Regarding [X], [X]’s anxiety is very high after about two hours into the eight-hour Saturday routine. He continually asks if it is 4pm yet, and he wants to go home. I have had extensive chats with [Ms F]–
that is a reference to his daughter Ms F –
about the 40 per cent care split experience she had; she recalls that it was stressful and not fun at all. [Ms F] is now seeing a psychologist for depression/anxiety. I don’t want to make the same error with [X]. If I could grab him every now and then for a burger or take him to the beach one to two hours max, then I feel that’s the least disruptive approach, at least until he gets a few years old. Happy to discuss any of the above content in person any time. Regards, [Mr Renna].
The father was acknowledging, legitimately and to his credit, that there were real issues in terms of X’s anxiety with him.
But since then one could be forgiven for thinking that the father’s attitude, nonetheless, has hardened towards the mother in terms of him not spending time with X as much as he would have liked.
The fact is that in his affidavit material the father portrays the mother as being the one who continually disrupted or undermined his time with X; he even goes as far as to call the mother “an alienator” to the Family Report writer in circumstances where, on the face of his own email of 6 April 2021, the father was clearly and appropriately seeking to step back from X to some extent.
It seems that the parties, in fact, did reach agreement for the father’s time to drop back to about two (2) hours per fortnight, although to be fair there is some confusion about whether it was occurring on a fortnightly or weekly basis, to be fair. One thing that is clear, though, is that the father’s time was limited, that the child was genuinely anxious and that the mother was by that stage taking X to see a psychologist at O Psychology.
The mother was not implacably opposed to the father’s time increasing as the months wore on in 2021. The child was displaying some troubling behaviours, including picking up an object, and throwing it on the floor, and stomping on it and saying, “This is how I feel when Dad is not nice to me” and the psychologist who was treating X had told the mother not to “go over the top” in convincing X to go to his Dad more as doing so will only invalidate X’s feelings. That said, the mother was somewhat ‘torn’ about what time to promote between X and the father.
The father had a plan to go overseas in late 2021/early 2022, and when this was cancelled the father asked the mother if X could spend two (2) nights with him. The mother did not think two (2) overnights was a good idea. Instead she suggested longer day visits of four (4) to six (6) hours. Rather than take the four (4) to six (6) hours she offered, the father responded by email saying:
Since you’re refusing to be reasonable, care remains the same till our Court date on Jan 31 when you can try and defend all your lies.
That is to say, the father preferred not to take extra time with his son unless it was on his terms; this was not a child-focused decision on his part, with respect. The father was, to use the colloquial, ‘biting off his nose to spite his face’.
The father had commenced proceedings on 11 February of 2022. Clearly, his relationship with the mother was strained and difficult, and clearly it was a case that required a more structured arrangement in place for the child.
The father’s anger / lashing out at the mother
The fact that the father was quite angry at the mother is evident from what occurred in early 2022 when the mother sent the father a photograph of young X with a COVID mask on, holding a ‘Certificate of Bravery’ for having had his COVID vaccination. This was an attempt by the mother to keep the father included in the child’s life, and his response to her by way of text reads as follows:
Nice picture of the son from the family you wrecked. Thanks.
Rather a sad, ungenerous response, one would think, to what was a genuine attempt to include him or at least involve him in the child’s life, albeit not on the terms that the father wanted.
Within days of commencing the proceedings the father was again abusing the other by way of an email. In early 2022 he sent her an email. Before I set it out, I should record that the mother was at that time dating an employee at her workplace. The father’s email read:
Communication is appalling between us. I ask questions, seeking collaboration, and you give me a lecture; I guess that’s why we can’t agree on anything. Lucky you found a [worker] of similar intellect; if that doesn’t work out, you could try a bloke from […].
Pausing there, I do not know what […] stands for, but it was clarified in the witness box that these are the people, or this is the division of the health care centre, that is in charge of sterilising instruments used in surgery and in the hospital environment. Effectively, the father was creating a hierarchy of intellect with him close to the top, the mother certainly below him, a worker apparently below her or at her level, and telling her that sterilising people are a lower level again; his email highlights the ‘air of superiority’ to which I have referred.
The father accepted in the witness box that his message to the mother was “out of line”; I could not agree more.
I should also add that this email to her was a response to a fairly lengthy, informative email she had sent him about the different sports and activities the child was engaged in. There is absolutely nothing offensive in her email, and the fact that the father saw it as “a lecture” in my view simply summarises how angry he was with the mother at the time.
On 9 March 2022 the mother was running late to get to the handover point, being the front footpath at her home. This was the first of a number of occasions where the father, in a fit of pique, simply left and chose not to spend time with his son rather than actually spending any time with him at all.
On this occasion the father sent the mother a text message at 4.03pm saying “here”. By 4.07 pm the message was:
Withholding him again, obviously. So evil.
At 4.08 pm the mother responded:
We are on the footpath. He was just upset, so I was calming him down.
And at 4.10 pm:
If you loop back around he is here.
I pause here to observe that the parties only live a short distance apart by car; it was well open to the father, who literally missed the mother by about one (1) minute, to turn his car around and pick X up. The father did not do so. His text response at 4.11pm reads:
Not handing him over on time. Another screenshot for the judge.
When the mother responded at 4.12 pm:
We were coming down the stairs as you were here –
he said:
Tell the Court, you evil mother.
At 5.38pm that day, still stewing over what the mother had done and having again ‘bitten off his nose to spite his own face’, the father texted the mother to say:
Why have you done all this? You have wrecked [X]’s life. He’s a nervous mess and always will be now. Why? You flicked a faithful husband, lost $1 million house and wrecked our kid; hope it was worth it.
Again, the father was focused on the relationship having broken down between he and the mother rather than on what was best for X. And, of course, once again, the mother was left to pick up the pieces. Now, that is not to say that the mother should not have been at the handover on time, but these things can happen, and we are literally talking about a few minutes. The father’s reaction was completely over the top.
On 22 March 2022 the father messaged the mother asking to change the visit for the following day, but the mother already had plans. The father’s message to her read this way:
I need to switch to Thursday 4pm [X] care till our September court appearance; are you going to obstruct this move? Looks better for you in court if you pretend to be a reasonable human.
The obvious contempt that the father was demonstrating to the mother is clear enough. The mother responds:
Yes. I am happy to swap Wednesday 4pm to the Thursday 4pm. [X] is free to start from next Thursday, 31 March.
The father responds:
So you’re withholding my son again for the third time in seven weeks. Court date is coming #burkemead#60grand -
this being a reference to the mother’s then legal representatives and to the legal costs that she was incurring.
The mother responded:
No, I am not withholding. I have Wednesday afternoon set aside for [X]’s time with you. Unfortunately, this Thursday doesn’t work for us, but I am happy to clear the schedule for Thursdays in the future.
Put shortly, the mother was attempting, in my view, to be reasonable, but the father was unwilling to accept that that was so.
There was a minor debate between the parties at a handover in April 2022 when the mother says that the father dropped X off to her when she was not home; she missed him by a short period because she had been talking to the neighbour. The mother later raised this with the father, saying that:
I was not in the unit when you messaged tonight. [X] was crying in the stairwell. Although, according to my neighbour who witnessed your drop-off, my arrival to the front of the house was seconds after your drop-off/departure, it is not the point. In the event of an emergency for either parent it is in [X]’s best interests that we both sight the receiving parent on changeover. This is not the first time there have been issues with the drop-off. How about we either; meet at the front of the house, or you wait until I wave from the front balcony once I’ve received [X]. Let me know what you would prefer. Thanks. [Ms Grenville].
The father responded the next day with:
How about you be home at drop-off time, you neglectful parent, and maybe keep your phone on you. It will be half-care soon, so he will finally get at least some proper parenting.
Once again, the father was being contemptuous towards the mother, in my view.
At handover on 21 April 2022 the father messaged the mother:
So last week you weren’t home for [X]’s return, and this week you’re not down here at 4pm for handover. Court will sort you out.
The mother was on the footpath with X; again, she had, apparently, been running a couple of minutes late. Her message to him was sent at 4.02 pm, literally two (2) minutes after the handover time. The mother said in the message:
We’re on the footpath. I was waiting for your message.
And rather than coming back to get the child, as he could well have done, the father’s response was to text the mother to say:
Another step in you wrecking [X]’s life. Well done. See you in court.
Again, the father was ‘biting off his nose to spite his face’.
A similar situation occurred on 19 May 2022. The father messaged the mother at 3.58pm to say he was there at the handover point. He sent her another message at 4.03 pm:
Another no-show, eh?
And the mother responded at 4.04 pm:
We’re here on the footpath. [Ms P]–
this being the mother’s niece –
was on the toilet –
Again, instead of coming back to get the child, as he could have done, the father texted the mother to say:
I realise you’re not real bright, but you’re destroying [X] bit by bit with this crap. See you in court. Another 50K to Burke Mead –
with a laughing-face emoji.
Child Impact Report
A Child Impact Report was prepared by Court Child Expert Ms Q dated 15 July 2022.
Amongst other things, the report noted that X was anxious. It also recommended that both parents undertake the ‘Parenting After Separation’ course. Notably:
·the mother did so by late 2022 (exhibit 2);
·the father did not undertake the course; he said in the witness box that it was “a recommendation” and that he would do it if the Court ordered it. I am quite confident from having seen the father in the witness box that he sees little value in a ‘PAS’ course and that he would not do a course unless specifically ordered to.
On 12 February 2023 the parties amended the parenting arrangement so that the father was having X every second Sunday for four (4) hours from 12pm to 4pm.
Family Report of Ms D released 20 February 2023
The Family Report of Ms D was released on 20 February 2023; it raised real concerns about the father’s attitude towards the mother and about the child’s capacity to cope in terms of overnight time with the father.
I have already indicated that the Family Report writer observed that the father spoke with contempt about the mother and that he had an air of superiority.
The father was also quite dishonest with the Family Report writer because, as recorded at paragraph 33 of the report, he vehemently denied the mother’s allegations that he had ever missed visits with X, saying it was the mother who was refusing to bring X to him. That is complete and utter nonsense.
Moreover, the father told Ms D that his communications with the mother had never been abusive or derogatory and he apparently suggested to Ms D that the mother would not be able to produce any evidence of this. He told Ms D that the mother had “framed him as the villain” and he said that on the rare occasion when he had been critical of the mother it was because she had provoked him. This was simply untrue. The father had sent numerous derogatory or abusive messages to the mother, and the father knew it when he gave his version to Ms D.
It is not a Family Report which painted the father in a particularly glowing light, but the attitudes which the father demonstrated to Ms D were certainly consistent with the attitudes that I saw when he was in the witness box in the course of this hearing.
The Family Report recommended that the child’s time with the father increase in accordance with his developmental requirements and, particularly, his chronological age. It also recommended that the father undertake a ‘Parenting After Separation’ course as well as some sessions of individual counselling therapy before overnight time commenced.
Consistent with the report’s recommendation, shortly before the matter came on for hearing the parties agreed that the father would spend time with X in accordance with the recommendations, which is to say eight (8) hours each alternate weekend upon X turning eight (8); this is the arrangement that was implemented and was in force at the time that the matter came on for hearing before me this week.
THE LAW
I am well-familiar with the provisions of Part VII of the Family Law Act1975 (Cth) (“the Act”) and of the requirement that parenting orders be made against the backdrop that X’s best interests are the paramount consideration.
I am familiar with the “best interests considerations” set out in section 60CC of the Act, as well as the statutory pathway in respect of parental responsibility provided for in sections 61C, 61D and 61DA of the Act as well as section 65DAA of the Act.
I do not propose to slavishly set out those sections; I have considered them, and I will focus on the matters that I think are most important.
I also note here that many of the factual findings which I have made engage one or more of the relevant considerations in section 60CC, and so to the extent that I can, I will proceed hereafter as much as possible by way of summary.
BEST INTERESTS
At the outset, obviously in this case it is clear that the mother will remain the overwhelming primary carer of X, regardless of which parent’s orders are made. So most of the considerations in section 60CC insofar as they relate to the mother are of no real consequence in the determination of the dispute. The most relevant parent in the context of section 60CC is the father in the sense that it is his time with X that is really the “live” issue in the case.
The mother’s relationship with X is steadfast and will remain meaningful whatever orders the Court makes, although I do have some reservations about the father’s attitude to which I will turn shortly. In terms of section 60CC(2)(a), I accept that the child would benefit from having a meaningful relationship with the father; it is a balancing act in this case that the Court has to engage in. The fact of the matter is that the father is a successful professional person; he is a very fit man who, obviously, prides himself on his degree of fitness. He is a motivated man; he seems to have something of an entrepreneurial streak. I have little doubt that he has many positives that he can offer his son. I take it as a given that the child would benefit from having a meaningful relationship with him, but the question is where the line needs to be drawn in terms of how meaningful the relationship should be, given all of the other countervailing considerations. A meaningful relationship in section 60CC(2)(a) does not mean the most meaningful relationship.
In terms of section 60CC(2)(b), I am satisfied that the father did perpetrate family violence against the mother, to which X was exposed, when he physically pushed her over during the event to which I have referred earlier, as well as punching doors and the like, and in various of his taunts and coercive behaviours towards the mother.
I do not propose to dwell on family violence in the sense that this is not an ‘archetypal’ family violence case in which the Court is dealing with a heinous perpetrator of family violence and having to manage risks in that respect. I do not consider that family violence is a particularly large matter in terms of the overall mix of considerations in this case. I am much more concerned about the father’s attitude to parenting, his parenting style, his contempt towards the mother and various other attitudinal and capacity related issues on the father’s part than I am about family violence per se.
But family violence has occurred, and this is relevant in terms of section 61DA in that there is no presumption here that an order for equal shared parental responsibility would be in the best interests of X.
The mother raised some issues relating to the father abusing alcohol and prescription medication, but these were not really addressed in the course of the hearing, and I make no findings about them; I do not consider that they are matters that were actively pursued and they play little or no role in my consideration.
In summary, no serious risk issues arise under section 60CC(2)(b).
When I turn to section 60CC(3), it is apparent to me that X is a nervous boy who wants to proceed to have his relationship with the father develop in a way that X is comfortable with. X was quite content with the limited time he was spending with his father back at the time of the Family Report interviews and said that “perhaps another hour” with the father would be good.
The time that X has spent with his father since then has increased significantly more than that, and he is spending eight (8) hour periods with him. Ms D said in the witness box that the child is really seeking the father’s approval, and I am sure that this is also true to some extent.
The fact of the matter is that the child is nervous. He wants to spend time with his father, but he has found his father to be an intimidating and anxiety-provoking character on occasions, as well as lacking in empathy and sensitivity to a fairly significant degree, and it is a matter of weighing up X’s wish to be safe and to have a relationship with his father as the years go by.
Certainly, the child is conservative in his own views (about his time with the father).
In terms of the nature of the relationships between the various parties it is probably convenient here to observe that the mother has been, obviously, X’s primary carer, and rock and support, and she also has maternal family members who live nearby.
The father’s family circumstances are somewhat different. The father, really, only has himself and his partner Ms R, with whom he has been in a relationship since early 2021; she is, apparently, a child psychologist. She was not called to give evidence in the matter, and I do not know much about her, although the mother expresses some hope that Ms R will be able to be an ameliorating factor for some of the father’s harsh attitudes when he has the child in his care.
But the relevant point here is that the father seems to be completely estranged from all of his own family members, which is entirely consistent with the mother’s observations.
His daughter Ms F is a particularly sad example; she is 21 years old. She has maintained some sort of relationship with the mother since the parents separated. She is, apparently, at City K, and she spends some time with X. It seems that the father has, to some extent, disowned Ms F because Ms F chose to maintain some form of relationship with the mother, which the father seems to have viewed as disloyal.
In early 2022, Ms F contacted the mother and forwarded her the following messages. The father said to her:
Not sure why you continue to ignore me; I don’t recall us having any altercation. I note that you continue to catch-up with my ex, though –
this is a reference to the mother –
which I consider to be a massive betrayal. Your lack of loyalty to your own father is disgusting. Best of luck navigating life with zero integrity; looks like you and [Ms Grenville] are similar in that regard.
What a disgraceful thing for the father to say to his own child.
Ms F responds:
Okay. First off, that’s an absolutely disgusting message to send to your daughter. Just goes to show you haven’t changed. And, by the way, I am full-grown adult. I can speak to whoever I want whenever I want; I don’t need your permission. [Ms Grenville] was a huge part of my life and the mother of my brother, and I will always have contact. I will not stand to be talked down to like this.
And, to pause here, Ms F is right: she is entitled to have a relationship with the mother if she wishes. It is not an ‘all or nothing’ situation. The world is not entirely black and white. It is, clearly, to X’s advantage to have an opportunity to see his half-sister if she wants to spend that time with him, which clearly she does. And I agree with Ms F that the father was talking down to her; this is his modus operandi – his air of superiority.
The father responded to Ms F in this way:
Yes, you are an adult. You are free to do whatever you want. You are free to be a disloyal, rude, inconsiderate human if you want; hope that works out for you. Don’t bother contacting me again.
I would urge the father to think long and hard about the attitude that I have seen on display in this Court and which the mother was subjected to by him in the course of their relationship and subsequently. His treatment of his daughter demonstrates a willingness to literally cut her out of his life because of perceived disloyalty. That is not the act of a parent - not a caring, empathic parent, which is the sort of parent X actually needs.
Notably, the father was interviewed about Ms F for the Family Report, and he apparently said to the report writer that the mother had been “courting Ms F to obtain her support” in the proceedings. I pause here to say that Ms F was not called as a witness in the case.
The father told the report writer that he had ceased contact with Ms F when he learned she was working as a sex worker, which is a disputed fact in this matter. The mother disagrees that Ms F works as a sex worker, but it is perhaps beside the point. Given his sex worker reference, Ms D asked the father, as a parent and healthcare worker, whether he held any concerns for Ms F’s health, safety or wellbeing. So this was the report writer asking him whether, if that was true and she was working as a sex worker, whether he had concerns.
The father’s response to her was:
The father looked momentarily baffled, and then stated he objects in principle to her occupation and indicated he had not given her situation any further consideration. Given that [Ms F] is not much more than a child herself, the father’s response is devoid of care and empathy.
I agree.
Ms F is perhaps used to being ‘put in her place’ by the father and doing what was expected of her. I accept the mother’s evidence that:
·the father did not attend Ms F’s school events, such as Father’s Day activities, during the parents’ relationship;
·if Ms F was crying, her father would tell her that crying was “weak”;
·Ms F told the mother that, prior to the parents’ relationship if the father ever had women over, that Ms F was expected to stay in her bedroom, eat dinner and remain quiet as if she was not there.
Alarmingly, Ms F also told the mother that:
·her father would hit Ms F in the car on the way home to her mother if Ms F was excited to see her; and
·the father was obsessed with Ms F’s appearance and critical of her, including saying that he needed to undo her mother’s parenting and get Ms F’s “fat gut” off her, and Ms F, apparently, developed an eating disorder as a result.
The father is not an empathic person, from what I have observed. Certainly, empathy is not his strong suit. But it isn’t just his daughter that he has fallen out with. He seems to have fallen out with every other significant family member that he has, including his own parents and including his siblings.
When his parents attended to meet baby X, the mother did not even get to see them because they had turned up at the house and already left. The father told her:
They are dumb cunts who we don’t need in our lives. I told them to fuck off.
The father, apparently, does not talk to his other brother Mr T, who the mother never met, because he did not like Mr T’s:
…witch of a wife.
The mother met the father’s younger sister Ms U, but only saw her twice. Apparently, the father did not like Ms U’s parenting approach for her own children.
The point is that the father represents an ‘island’ in terms of the paternal family: he is it. There is no-one else that he will be promoting a relationship with when the child X is with him, at least at this time.
His fractious relationship with his family members and his harsh, authoritarian approach cause me a degree of concern – that save for his partner Ms R there really is not anyone in the father’s orbit who can tone him down, soften him up a little bit and perhaps ameliorate some of those rough edges – perhaps ‘jagged edges’ would be a more accurate expression.
The child, clearly, needs to have a relationship with the father. As I have indicated earlier, it is a balancing act.
In terms of making decisions the mother has always made, essentially, all of the decisions for X. The father criticises her about not involving him. It is quite clear that it is a matter which requires a judicial determination. I accept that the father wants to play a part in X’s decision-making and to be involved in his life or he would not be here participating in this litigation.
Child support is a minor consideration in this case. The father pays child support. The mother says that before an assessment was issued the father was irregular in his payments, particularly if he was annoyed at her; I accept her evidence about that. There is some uncertainty about exactly what the father will be assessed to pay in the future, given that he has a separate business which may reduce his taxable income. In any event, I do not see child support as a major issue, though I would observe that the mother has borne the lion’s share of X’s medical and other living expenses throughout his life, and I do not think that is likely to change.
In terms of the likely effect of changes in circumstances this is really ‘where the rubber meets the road’ in this case. Ms D was at great pains to emphasise that X is a sensitive boy who needs sensitive parenting; he is a boy who needs to be looked after carefully. Overnight time should be something that he is gradually eased into.
The report writer was quite clear that the father needed to undertake a ‘Parenting After Separation’ course and, ideally, some individual face-to-face counselling, as well, to educate him in terms of a child’s needs, particularly in a co-parenting situation. She was not particularly confident that the father had the right approach to be able to handle X in terms of overnight time, and she was very much making the point that X is an anxious child who requires that special treatment.
Quite frankly, X’s arrangements do need to be locked in until he turns 18. It would be unfortunate if the parties ended up back in litigation in this Court. The Court has to ensure that the child has an opportunity to develop his relationship with the father in an age-appropriate and developmentally appropriate way so that the child can benefit from his relationship with the father but without pushing the boy further than what he has the capacity to tolerate and also taking into account some of the father’s harsh attitudes.
The Court must make orders which are in the child’s best interests and which provide for the long-term care of X.
In terms of practical difficulties and expenses, no real issue arises. The parties live very close-by each other.
My major concerns about the father relate to his capacity and his attitude to parenting: he is harsh; he is authoritarian; he has some contempt for the mother; he has an attitude of superiority. Though he said that communication between the parents had improved in recent times, and the mother agreed with that, it is also clear that the situation is far from straightforward.
The father messaged the mother in mid-2023 asking her to:
Please start co-parenting properly with me –
as well as attaching a link to a social-media post which reads:
The biggest danger for children of divorce is when a parent refuses to co-parent.
Once again, he was blaming the mother for all of the problems. This was a message that he sent her in mid-2023.
He had also messaged her in mid-2023 in relation to encouraging her to reach an agreement with him but in such a way as to, in my view, give the mother a message that was of a broadly threatening nature. That is not to say that the message was itself a threat per se, but the message certainly was one given to her from, again, a position of, perhaps, some bullying. If I read it into the record, it reads:
Good morning. Are you motivated to continue this dialogue?
I am seeking a short meeting with you to discuss a potential solution. I am not sending this proposal via email as you’ll likely try and use it against me, as you have done in the past. Your fee for court is 40K: mine is zero. Don’t mistake my compassion for weakness. I am trying to save you that money so you can spend it on [X] and, hopefully, purchase him some housing. I am free most days. Regards, [Mr Renna].
That is not a particularly polite and pleasant message; there is an undertone in it. The undertone appears again in the father’s Case Outline when he says at paragraph 4 under the heading “The Need to Protect the Child from Harm”:
[X]’s mother is renting –
which, of course, links in with that email -
and has no partner. The constant coming and going of random short-term boyfriends is a concern as, statistically, the risk of abuse to minors in these environments is elevated.
This is a disparaging reference to the mother; it is contemptuous by nature. The father admitted in the witness box that he did not know if the mother had random short-term boyfriends; it was, in fact, an assumption on his part, and, clearly, he thought so lowly of the mother that he made that assumption about her.
I have real concerns about the father’s negative attitude towards the mother and about blaming her for all of the problems that he has in his relationship with X, while taking, practically, zero responsibility for his contribution to those problems. I have concerns about the father denigrating the mother to the child, as well; he did the same in relation to Ms F, whose mother he clearly disliked.
And I accept the mother’s evidence that X has said things to her that have come from the father or at least been said by the father in X’s presence. So, for example:
Dad says not to believe anything [Ms F] says as she isn’t very bright because she didn’t finish year 10…
Dad said the judge is going to make me stay with him overnight…
Dad didn’t want to play with me. He said you’re a robber and a liar. He said that you got your brothers to help you move while Dad was at work, and you left a card after stealing all his things…
Dad asked if I want a mum and dad or just a mum. He then said I don’t have a dad if I only spend two hours with him.
I accept the mother’s evidence that, at a time when the father’s partner Ms R was at the dentist, X told her about a conversation they had:
Dad wants more time. He said, “Maybe I may as well drop you home now because you want to live your whole life with your mum.” I told him I just want nothing to change. He wants more time with me, but he makes me not want more time; it doesn’t make any sense.
The mother asked X if Ms R was home at the time of that discussion, and X replied:
She came home from the dentist, but I didn’t tell [Ms R] what happened and why I was sad. I know I said I wasn’t scared of Dad, but I am scared of him.
I am concerned about the father’s, at times, misogynistic references to the mother and to the role of women, which seems also to be the position that he took in relation to Ms E. I am concerned that the father has not undertaken a ‘Parenting After Separation’ course or done anything to improve his own parenting skills. I am concerned that the father in the witness box demonstrated little or no acceptance of responsibility and, in my view, demonstrated no real remorse, much less any empathy, for the situation that he had placed X into and had placed the mother into.
The father called the mother “a compulsive liar” in his material - a very nasty insult to make about her. He said that her lying “had improved”, and things were getting better in that respect, but it was clear to me that he doesn’t trust the mother, nor does she trust him.
The complete lack of trust between these parents and the unfortunate dynamics of their relationship are such that, as will be obvious, equal shared parental responsibility cannot possibly be in the child’s best interests in this case.
In short, I have serious concerns about the father’s parenting capacity on multiple levels. However, I do not consider that his capacity or his attitude to parenting are such that he poses unacceptable risk of harm to the child in extending time to overnight time down the track; it is a question of the Court putting in place appropriate conditions in that respect.
I have addressed the child’s particular vulnerabilities at some length. I will not go further into those beyond observing that this young man struggles with the idea of ever separating from his mother for an overnight. It is quite clear that this is not just limited to the father. I accept the mother’s evidence that in late 2023 X was invited to a sleepover at a friend’s house a short distance away. X was ‘chopping and changing’ about whether he wanted to stay overnight or have the mother pick him up. In the end he said he would stay overnight, but ultimately at 9.30pm the mother received a phone call to come and pick him up straightaway; X was a bit teary, but he seemed to have enjoyed his time.
He told the mother in the lead-up to the party that:
At bedtime I get these nervous thoughts at sleep time.
He worries about someone breaking in or trying to take him. It is clear enough that X needs love and support, not harshness and disciplinarianism; he needs to be kept away from the adult disputes, not put into the middle of the adult disputes. I have addressed family violence issues already, and I do not need to address those any further. I should add, though, in this respect that the father even went as far as to threaten the mother that he would be applying for an AVO if the mother stayed in contact with Ms F after separation. Again, the father was interfering in the relationships between other people, and no such AVO application was ever made.
I agree it would be preferable to make the order least likely to lead to the institution of further proceedings, and that is what I intend to do, although it is never possible to entirely rule out the prospect of future proceedings.
DETERMINATION
Against all of that factual background and having regard to the provisions of the legislation and to the necessary exercise of discretion in this case, I begin with the question of parental responsibility.
As I have already indicated, the presumption that equal shared parental responsibility would be in the best interests of X simply does not apply: section 61DA(2). The mother has always made the decisions for X in a de facto sense; it is logical that the mother continues in that role given that she will be the overwhelming primary carer.
I do not trust the recent ‘improvement’ in communication from the father, which I consider has definitely got a strategic flavour to it as the mother fears - so much is evident from the messages the father sent the mother in mid-2023 to which I have referred. I consider that the father is sensible enough to be ‘on his best behaviour’ at the moment, but I have concerns that his longstanding attitude of superiority and contempt are likely to come to the fore again in the future at some different point in time, particularly in the event of argument about what should be happening with X, and I suspect the father will not be able to help himself, at least on his current level of functioning. It is overwhelmingly in the child’s best interests for the mother to have sole parental responsibility and I will be so ordering.
The question is when can overnight time with X begin? And what is the cut-off point in terms of the maximum time?
The father is seeking that overnight time with X, effectively, commence from February 2024; I do not consider that it would be in X’s best interests for that to occur because he is not ready. And I also consider that the father needs to do some work at his end, or at least be given the opportunity to do some work at his end, so that he can be a more empathic and supportive parent when the time for overnight contact arrives.
I am of the view that the mother’s proposed orders for the father’s graduating time are in X’s best interests. The orders provide that the father will be spending daytime visits with X, effectively, from 9am to 5pm until X turns ten (10) and subject to the father undertaking a ‘Parenting After Separation’ course and providing the father with a certificate of completion.
I will turn to that issue now. A ‘Parenting After Separation’ course is clearly a course which is designed to educate parents to learn how better to communicate in a co-parenting situation after separation and to be able to put the child’s best interests first. That is to say, to keep children as the primary focus of their behaviours and discussions and to ensure that the co-parenting works in a positive way for the child’s benefit. It is an opportunity to learn for both parents.
The mother has already undertaken the course.
It is an opportunity for personal growth for parents. It is an opportunity to become a better and more empathetic parent and human being. But that is all it is: an opportunity. It is no guarantee of anything whatsoever.
I am mindful of the decision of the Full Court in Lainhart & Ellinson [2023] FedCFamC1A 200 wherein Austin J, delivering the leading judgment of the Court which with Aldridge J and McClelland DCJ agreed, observed that:
34.…[I]f litigants are genuinely motivated to improve their parenting capacity, they will do so without the need for any order to regulate their decision. On the other hand, if they do not genuinely desire any such improvement, any order intended to cajole such an outcome is likely to be unsuccessful at best and disregarded at worst.
29.Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences.
That particular case involved an appeal from a decision of a trial judge who found that the father should only have supervised time with a child pending undertaking some cognitive behavioural therapy from a psychologist, upon the completion of which the father’s time would graduate to unsupervised time. The Full Court set that decision aside, finding it was an unreasonable and inappropriate divestiture of judicial power to a psychologist.
And in the course of Austin J’s reasons his Honour was critical of the decision to confer such power upon a third party, as well as noting that the orders were aspirational and unenforceable.
I will not set out in detail what his Honour said, but I am certainly mindful of that decision here. On one view, why should I order the father to undertake a ‘Parenting After Separation’ course? He may learn nothing from it. If his attitude to the course is the same as what I saw in the witness box, then he likely will learn nothing from it.
However, he is an intelligent man. He tells me he will do the course if the Court orders him to do so. The course is clear in terms of what it teaches. It is not a situation of uncertainty as was the case in Lainhart & Ellinson where it was not clear exactly what the purpose of the cognitive behavioural therapy was.
I could tether the father’s overnight time to the requirement that he undertake a ‘Parenting after Separation’ course; this would be a legitimate parenting order within the meaning of section 64B(2) of the Act.
The question is, really, whether I should do so – whether it would be an appropriate exercise of discretion. What if, for example, the father learns nothing from the course? What if he obdurately refuses to take anything on board? These are all real possibilities in this case.
But what is the alternative? If I were to make an order that the father’s time remain stuck at eight (8) hour periods ad infinitum, this is not what the mother wants, nor do I consider that it would be in the best interests of X who will not always be an eight (8) year old boy.
Like his older half-sister Ms F, X will grow up and learn to see all the adults in his life from his own perspective. He will not always be a young boy, and he is someone whose long-term future needs to be balanced carefully.
If I order that the father’s overnight time commence upon the father undertaking a PAS Course and with the expiry of the period of time referred to and recommended by the Family Report writer, I create the additional safeguard that the boy will have had the opportunity to grow a bit older and to develop that improved cognition and that greater understanding of the world and, perhaps, hopefully, to have reduced some of his anxiety.
It is a matter of balancing up two possibilities. Either I stop the father’s time at daytime visits, which no-one wants me to do, or I increase his time to include overnights when X is older, conditioned on him doing a PAS Course from which he may learn precisely zero, but he may learn something. He may learn something significant; I simply do not know.
I regard the PAS Course as a necessary precondition to at least give the father the opportunity to improve some of the jagged edges in his co-parenting and his parenting. But knowing that it is a somewhat imprecise exercise that will not be re-visited by this Court I do not consider it an improper divestiture of judicial authority to the provider of a PAS Course because I do not consider the child will be at unacceptable risk in spending overnight time with the father.
I do consider that the father’s time on an overnight basis will need to be inherently limited by reason of the attitudes and behaviours that I have seen on display from him as referred to in these reasons. That is to say, time can graduate to overnight when the child is ten (10). I believe that the child will cope, and I am satisfied that he will. I hope – and I express it as a hope only – that the father will learn something from the PAS Course, but he will at least be required to do it and to be given the opportunity to improve his own parenting and his own attitudes for X’s sake.
If the father attends the course and provides a certificate of completion, then he can have overnight time. If the parenting arrangements go awry down the track because he continues to adopt an ‘all or nothing’, or a ‘black and white’ or a ‘you are with me or against me’ approach, the father will have only himself to blame.
But I do not consider that it would be appropriate to deprive X of the opportunity and the benefit of a relationship with his father that is meaningful on the basis that the father may not complete the PAS adequately (in terms of learning).
In short, it is the lesser evil to make the order the mother proposes than to simply fix the father’s time with X rigidly at daytime only.
CONCLUSION
For these reasons I make the orders set out at the commencement herein.
I certify that the preceding two hundred and twenty (220) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 6 December 2023
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