Riley and Allen

[2016] FamCA 603

FAMILY COURT OF AUSTRALIA

RILEY & ALLEN [2016] FamCA 603

FAMILY LAW – Where the mother has sole parental responsibility for one child – where the father has sole parental responsibility for the other child – where one child lives with the mother – where the other child lives on a week-about basis – where one child is not required to spend time or communicate with the father – where there has been extensive family violence between the parties – where an order for equal shared parental responsibility is not in the child’s best interests

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA(1), 65DAC
Evidence Act 1995 (Cth) s 140

Banks & Banks [2015] FamCAFC 36
K v R (1997) 22 FamLR 592
Mauldera & Orbel (2014) FLC 93-602
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Re W (sex abuse – standard of proof) [2004] FamCA 768
T v N [2001] FMCAfam 222
Wacando v The Commonwealth (1981) 148 CLR 1

APPLICANT: Mr Riley

RESPONDENT: Ms Allen

INDEPENDENT CHILDREN’S LAWYER: Ms Meehan

FILE NUMBER: TVC 511 of 2012

DATE DELIVERED: 26 July 2016

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 11, 14, 15 and 16 September 2015, 30 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hibble

SOLICITORS FOR THE APPLICANT: Gun Lawyers

COUNSEL FOR THE RESPONDENT: Mr Fellows 11, 14, 15 and 16 September 2015; Ms Williams 30 May 2016

SOLICITORS FOR THE RESPONDENT: Shuttleworth Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Collins

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER” M M Meehan

Orders

1. All previous parenting orders be discharged.

Parental responsibility

1. The mother have sole parental responsibility for the child, B born … 2003 (“B”) in relation to long-term parenting issues and the father have sole parental responsibility for the child C born … 2007 (“C”) in relation to long-term parenting issues, save that neither parent will change the name of either of the children.

2. Notwithstanding order 2, the decision on which sports are to be played by C will be decided as follows:

   (a)TEAM SPORT

   (i)     In even numbered years, the mother will choose the sport from a list of three provided by the father after having consulted C;

   (ii)    In odd numbered years, the father will choose the sport from a list of three provided by the mother after having consulted C;

   (iii)     Each parent will take C to his sport when he is living with them;

   (b)INDIVIDUAL SPORT 

   (i)     C will be permitted to play an individual sport of his or each parent’s choice while living with the respective parent;

   (ii)    The other parent will be required to take C to any competition or fixtures for that individual sport that might fall on their respective weekends.

B living arrangements

1. B live with the mother.

C living arrangements

1. C live with the parents on a week-about basis from the conclusion of school on each Friday or from 3:00pm if a Friday falls on a non-school day, with changeover to occur each Friday as follows:

   (a)If it is a school day, changeovers are to occur at the conclusion of school with the parent whose home C is moving to (or their agent who is known to C) to collect C from School;

   (b)If it is a non-school day, changeovers are to take place at 3:00pm on Friday with the parent whose home C is leaving (or their agent who is known to C) to deliver C to the McDonalds Restaurant in Suburb D.

Holiday time

1. Notwithstanding the sequence of the week-about arrangement as per order 5, C is to spend one half of the Queensland gazetted Christmas School holidays as follows:

   (a)In even numbered years – from the conclusion of school on the last day of term to 3:00pm on the day that falls 21 days later, with the mother; and

   (b)In odd numbered years – from the conclusion of school on the last day of term to 3:00pm on the day that falls 21 days later, with the father;

   (c)The parent whom C is living during the second half of the school holidays will return C to school at the commencement of school but for the purposes of that changeover, that parent will have responsibility until the conclusion of school on that day.

Communication

1. The parents are to communicate with each other by email, except in an emergency, when they are to communicate by text message.

2. There will be no order for the parents to telephone the children while they are in the care of the other parent.

3. Notwithstanding anything in these orders, neither parent is to prevent and must allow both children to contact the other parent upon a reasonable request being made to do so.

Mediation

1. Before either parent institutes proceedings in relation to the children, both parents must attend mediation with an approved mediation service and make a genuine attempt to reach a compromise or an agreement.

Independent Children's Lawyer and s 65L supervisor

1. The Independent Children's Lawyer and s 65L supervisor be discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

2. The Independent Children's Lawyer is to explain the orders to the children with the assistance of the s 65L supervisor as soon as possible.   

Dismissal of proceedings

1. Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.

NOTATION:

A.Neither parent will denigrate the other parent, or permit any other person to do so in the presence of or to the children.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Riley & Allen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC511/2012

Mr Riley

Applicant

And

Ms Allen

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings relate to the parties’ two children, being B, born 17 November 2003 and hence presently 12 years of age, and C, born 7 November 2007 and hence presently 8 years of age (“the children”).  Although for most of this litigation, the parties were in dispute about the appropriate parenting arrangements for both children, ultimately they agreed that B should live with Ms Allen (“the mother”) who should have sole parental responsibility for her, and that there be no orders in relation to her spending time or communicating with Mr Riley (“the father”).  Instead the parties’ dispute, by the time of the conclusion of the trial, became wholly focussed upon C.  In that regard, the father sought orders that he have sole parental responsibility for him, and that he live with the parties on a week about basis.  The mother sought orders that she have sole parental responsibility for C, who should live with her and spend alternate weekends with the father.

2. The father’s position was supported by the Independent Children's Lawyer.

BACKGROUND FACTS

The father

1. The father was born in 1982 and hence is presently 33 years of age.  He told Dr E, a psychiatrist who examined him for the purposes of these proceedings, that he had a very disrupted childhood.  He said his parents moved a great deal, and that he “had 13 moves and 9 schools” as a child.  Further, his mother had some medical, and perhaps psychiatric, issues which caused disruption in her relationship with her husband.  Particularly it seems as though when the father was in grade five, she had a brain operation that caused a dramatic personality change, in consequence of which she became very difficult to live with.  There was a pattern of her and her husband separating and then reconciling, which pattern continued until the father was about 14 years of age.  Further, the father was physically small as a child, and told Dr F, another psychiatrist who examined him for the purposes of these proceedings, that he had bad memories of being severely bullied at times.

2. He left school at grade 10 and initially worked for two and a half years in G Town near H Town.  He then moved to I Town in 2001 and obtained employment as an apprentice.  Whilst there, he formed a relationship with a women who became pregnant to him.  However that relationship failed, and it was at that point in time, prior to the birth of the child, that at age 19, the father met the mother and commenced a relationship with her in I Town.

3. Since shortly before the commencement of the relationship, the father has had a keen interest in body building or, as he described it to Dr F “body transformation.”  Dr F opined that “this interest seems to have been the one stable and enduring part of his life.”[1] 

   [1]Dr F report paragraph 25.

The mother

1. The mother was born in I Town and attended school there.  She had learning problems at school and after grade 8 undertook distance education.  She ceased schooling at the earliest opportunity, and then obtained work as shop assistant.  It was at this stage of her life when, aged 15, she met the father and commenced a relationship with him.

The relationship

1. It will be appreciated that the relationship was controversial from the outset given the parties’ age difference, and the fact that the mother was still a minor.  The mother’s parents were less than happy about it and this led to conflict between them and the mother.  Not long into the relationship, the mother left her parents’ home and went to live with the father, and some short time thereafter the parties obtained their own independent accommodation.

2. There seems little doubt that the mother was suffering from very low self-esteem at that point in her life.  Further, from the outset the parties’ relationship was characterised by family violence, ranging from verbal abuse and arguments to physical altercations.  In cross-examination the father conceded that he would often point out to the mother that she would have nothing if it were not for him, and otherwise engage in what I characterise as humiliating behaviour, which the mother conceded would cause her to strike the father, leading to physical fighting.  Moreover, the mother formed the view that the father was being unfaithful to her, and she construed that his reference to other girls was a deliberate taunt to provoke her to anger and aggression.

3. About a month into his relationship with the mother, J, the child to the father’s previous relationship, was born.  Also at a relatively early stage in the relationship, the mother fell pregnant to the father with B.  She was born in 2003.

4. Notwithstanding the birth of B, the parties’ relationship continued to be highly argumentative and abusive, frequently involving physical violence.  The parties separated from time to time, during which separations they would have relationships with other people.  During any subsequent reconciliation, the mother would then become jealous about the other women that the father had seen, and was suspicious that he in fact maintained relations with them notwithstanding their reconciliation.

5. From time to time the mother’s parents would become involved in the parties’ arguments.  On at least one occasion there was a physical altercation between the father and another man in the mother’s company, when the mother and father were both out in I Town of an evening and their paths crossed.

6. The father was served with one domestic violence order in 2003 in which the mother was the aggrieved, and four in 2004.  He has convictions for breaching domestic violence orders in 2004 and 2006. 

7. During this time the father worked in a wide variety of jobs in the I Town region.

8. Unfortunately the parties’ arguments and violence were often played out in front of, initially, B, and after his birth in 2007, C also.  The mother told Dr E “[B] witnessed a lot of violence between us.  She has been badly affected and has anxiety.  Its rubbed off on her.  She is anxious.”

9. In 2008 the mother’s parents moved from I Town to K Town.

10. After C’s birth the parents’ arguments appeared to become almost constant.  In one instance, after a major argument, their neighbours called the police.  Ultimately the parties separated on a final basis, either in 2009 or 2010.  The date of separation is not material to this litigation.

Post-separation

1. It seems as though not long after separation the father commenced a relationship with his present partner, Ms L.  At around this time the mother moved from I Town to K Town, and the parties were able to amicably arrange for the father to assist the mother with that move.  Initially they were also able, without too much conflict, to arrange for the father to spend occasional time with the children in K Town, although the mother says that after the father commenced his relationship with Ms L, there was in fact no contact for about nine months in 2011.

2. In about May 2012 the father also moved from I Town to K Town, and around that time began seeking increased time with the children.  This proved to be a fertile ground for conflict between the parties, and led to the father commencing these proceedings.  I shall discuss the history of the litigation in detail in due course.

3. It does not seem to be in contest that the mother has, at least since separation, had considerable difficulty in parenting B, who is strong willed and defiant.  These behaviours are played out publicly.   For instance in the course of the first Family Report interviews by Ms M in 2012, it was noted “[B] indicated her refusal to engage with the family consultant while at the Registry by screaming and kicking at her mother and her grandmother, [Mrs Allen], who was attempting to control [B]…”[2]

   [2]First Family Report paragraph 78.

4. Unfortunately the parties’ hostility has not abated over the years post-separation, and it continues to be played out in front of the children on occasion.  The children are well aware of these conflicts, and of the parents’ respective views of each other.  I have no doubt that the parents have not shielded the children from their conflict.

5. Sometimes the conflict has again become physical.  For instance, in May 2013 during the course of a changeover of the children, the mother physically assaulted the father and Ms L.  This occurred in front of the children.  Moreover, the mother concedes that on occasion her emotions can get the better of her, and she behaves in an angry way and “snaps.”  For instance, in October 2014 during an attempted changeover of B into the father’s care, in which B was refusing to comply, she snapped and screamed in front of B’s face “I fucking hate your father.”  There are numerous other instances of the mother’s lack of control and anger being directed both towards the father, and from time to time, B.

6. Now is an appropriate time to record that both parents exhibit psychological or psychiatric issues.  Whilst not diagnosing her as suffering from borderline personality disorder, Dr F did say that the mother exhibited many of the traits of that disorder.  For his part, the father was diagnosed by Dr F as suffering from a narcissistic personality disorder.  It will be appreciated that that combination of personalities is likely to be volatile, even at the best of times.

7. Moreover the mother’s volatility has included, on at least one occasion post-separation, her physically fighting with her own mother.  Her parents have been funding this litigation, and that drain on their resources has put a strain on the mother/daughter relationship, which appears to have been a volatile one over the years in any event.

8. Since arriving in K Town, the mother has had a numbers of partners, culminating in her present husband, Mr Allen, whom she met in 2013.  He is a public servant and is committed to a career.  The mother and Mr Allen have a child of that relationship, N, born in 2015. 

9. As at the time of trial the mother was working in retail, and was pregnant with her and Mr Allen’s second child.  The father is employed in the service industry, and remains in a relationship with Ms L, to which relationship there has also been born a child, O, in 2013.

The children

1. At the time of the conclusion of the trial, B was 12 years old, and in her first year of high school.  She last spent time with the father on 20 April 2015.  On that occasion the father took her to a medical practitioner who, for reasons which are a little unclear, commenced to ask her about her relationship with the father, which caused the child to become extremely upset, and she ended up hiding underneath some of the furniture in the surgery, curled up in a foetal position.  Afterwards, there was then an argument between the father and the child in the car, most of which was recorded by the father and in evidence before me. 

2. Since then, the child has refused to spend time or communicate with the father, and is said in consequence to be somewhat less stressed than she previously had been.  That said, the Family Report writer, Ms M, was of the view that B now has a mood disorder.  It appears as though she has limited friends at school, perhaps in part because of her propensity to act out dramatically, and on occasion, violently.  In this respect she appears to share those characteristics with her mother and grandmother.

3. C is presently 8 years old and in grade 4 at primary school. He does not appear to have any particular problems with school.  However he has recently taken to demonstrating some defiance when in the mother’s home, including striking the adults and B.  This appears to be commonly associated with either the prospect of spending time with the father, or returning from his care.

The litigation

1. These proceedings were commenced by the father on 15 May 2012.  There have been many interim orders made since then, which have been regularly not complied with by one or both of the parties, and there have been persistent problems and conflict at changeovers undertaken pursuant to those orders.  On occasion that has seen the orders revisited, although with little, if any, improvement in their success or smooth compliance.

2. There have also been a number of Family Reports prepared over that period.  Several strategies aimed at assisting the parties and reducing the children’s exposure to conflict have been suggested by the writers from time to time.  For some time now, the parties have also had the assistance of a court appointed s 65L supervisor, and a number of reports by her have been made to the court.

3. As I have already observed, for much of the litigation the parties’ dispute has centred upon B, although by the time of the conclusion of the trial before me, the father was resigned to the fact that B no longer wishes to spend time with him, although no doubt the parties differ as to the reasons for that.

4. The proceedings were transferred to the Family Court of Australia by the Federal Circuit Court on 10 December 2014, and the trial of those proceedings commenced before me in September 2015.  That hearing concluded with interim consent orders, which gave the parties equal shared parental responsibility for both children, and provided for C to live with each parent on a week about basis.  However there were no orders made for B to spend time with the father, although it was noted in the orders that “the mother intends to encourage the child [B] to continue to see her father…”  The orders also required a fresh psychiatric assessment of the parties and for an updated Family Report to be prepared in due course.  The appointment of the s 65 L supervisor continued.

5. Although it had been hoped that with the additional material the matter may be able to wholly resolve, that did not prove possible, nor in fact has B been able to be coaxed to spend any time with the father.  That said, the father has made no attempt to communicate with her at all in that intervening time, for instance by sending her Christmas or birthday cards or gifts.

6. Ultimately the trial resumed before me in May 2016, although, as I have indicated, the dispute by then had narrowed only to a relatively narrow compass dealing with C.  

THE ISSUES

1. With the assistance of the parties, during the course of the proceedings, I identified the following as the issues in the litigation, in the sense that their determination is likely to substantially inform the exercise of my discretion:

   1.What is the nature of the relationship between each child and each parent, and between each child and their siblings.

   2.Would the children benefit from a relationship with each parent, and if so, how might it best be facilitated.

   3.What, if any, risk of harm is posed to C when spending time in each parents’ household.

   4.What would be the effect on C of:

   (a)Requiring him to spend equal time in each parents’ household;

   (b)Requiring him to spend alternate weekends, or alternate weekends and some weekdays, with the father or the mother.

   5.Could the parties’ communication and relationship generally support the exercise of equal shared parental responsibility.

2. Once I have discussed relevant statutory provisions and legal principles, I will address those issues in advance of a general traverse of any residual s 60CC considerations, and then consider the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

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

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

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

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

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that 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 either 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 family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[3]

   [3] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

4. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

1. S 140 of the Evidence Act 1999 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[4] 

NATURE OF RELATIONSHIP BETWEEN CHILDREN, THEIR PARENTS AND SIBLINGS

[4] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

B

1. Whilst the parties are agreed in relation to the parenting orders for B, and particularly that she should not be required to spend time or communicate with the father against her will, she nonetheless remains an important focus of this litigation.  That is because of her relationship with C, and the influence which she has in relation to him.  She is also relevant because of the antipathy which she has towards the father.

2. Turning firstly to that latter relationship, it is plain that B presently has a strong dislike of her father, ostensibly arising from the events of 20 April 2015, but no doubt more deeply seated in her long exposure to parental conflict and family violence from birth.  It was suggested by Ms M, and I accept, that B has sought to shield herself from continued exposure to that conflict by rejecting the father.  Unfortunately, the father has not properly understood the reasons for her rejection of him, and has not been able to approach the problem in a child focussed way, no doubt largely because of his personality disorder.  Worse, he has responded by ceasing to make even low key attempts at maintaining any relationship with her; for instance his failure to send birthday cards or gifts or Christmas cards or gifts, which failure was strongly criticised by Ms M and others.  Therefore B has not had, since April 2015, any reminder by the father that he still loves her and wishes to maintain a relationship with her.

3. B is said to have a reasonable relationship with her mother.  The mother described her relationship with B as “normal,” whatever that may mean.  However plainly the mother has had considerable difficulty in dealing with B over many years now, and no doubt B has been a source of great stress and strain for her, often causing the mother to exhibit anger when B is refusing to do what she is directed to do.  One suspects that the relationship will become more volatile during B’s teenage years, and the mother will continue to have difficulty responding appropriately to her defiant and challenging behaviours.

4. B’s relationship with C is said to be an important one to him, and indeed to B.  To Ms M B expressed some annoyance with C, in that he would often come into her room and refuse to leave, and she said that C uses various techniques to attract her attention.

5. Of course B has two other siblings, being O and N.  In the past she has enjoyed a good relationship with O, as one might expect an older sister to have with a younger sister.  However with the cessation of any time and communication with the father, sadly her relationship with O has also been put on hold.

6. Whilst not extensively explored in the material before me, it appears as though B has a good relationship with N, and no doubt that sibling relationship is important to her.

C

1. Both parents conceded that C has a good relationship with each of them, although the relationships are quite different.  With his father, C engages in considerable physical activity, and was described by the father as being an “outdoors” type of boy.  The father is keen for C to be engaged in active sports, and has introduced him to, amongst other things, kickboxing as a form of discipline and activity.  Plainly C enjoys spending time with his father and obtains benefit from that relationship.

2. C’s relationship with his mother is also a sound one and important to him.  It is likely that he obtains significant nurture from her.  However it was not suggested that the mother is as involved in C’s outdoor and physical activities as the father, although she does take him to various sporting fixtures.

3. I have already noted that C has a particularly significant relationship with B.  Indeed Ms M opined that he might obtain more stability from that relationship than from his with either of his parents.  For instance she said that in describing his activities, C always described events involving B, and tended to put her at the centre of his focus and stories.

4. It appears as though C also has a good relationship with both O and N.

BENEFIT OF RELATIONSHIP WITH EACH PARENT

1. Again this was not a matter of any great controversy, as the case ultimately was distilled.  Both parents conceded that C would benefit from a meaningful relationship with each of them, and that it would be best facilitated with C spending regular face-to-face time with them both.  That had not always been the parties’ position during the course of the litigation however, and there remained some differences even at the end.  That is because the mother’s case was that C could maintain an adequately meaningful relationship with his father by alternate weekend and block holiday time, whereas the father contended that it would best be facilitated by living week about between the parties.  Ms M supported the mother’s position from a long term strategy perspective, in that she was troubled that a week about arrangement might see C continue to be stressed by the tension he feels between the respective households, and cause him to ultimately reject one parent, probably the father, as B did.  That is a matter I will consider in due course when considering the appropriate orders.

RISK OF HARM TO C IN PARENTS’ HOMES

1. Ultimately neither party contended that the other presented an unacceptable risk of harm to C, whether of a physical or emotional kind.  For her part the mother might continue to harbour some concern in relation to the father posing a risk of sexual harm to C, although she expressly disavowed that during the course of her evidence.  Perhaps it remains a background concern of hers, but it does not need to be further discussed.  Rather the mother emphasised the difficulties which flow from the father’s personality disorder, and particularly the fact that the father is focussed upon meeting his own needs, rather than the children’s, and hence is a risk of emotional harm to them.  She pointed to the history of B in that respect, and indeed the father’s recording of his conversation with B on 20 April tends to lend some weight to those concerns.  In that conversation, the father appeared to be intent on imposing his own views on B, and was not responding to her as a child deserving of empathy.  On occasions it almost seemed as though the father was regarding B as if she was her mother, and treating her as such.

2. The father’s wife gave evidence before me.  She appears to be a far more moderate person than the father, and I expect that her influence in the home is a good one.  She is not said to have any of the personality features of the father, and there is no reason to think that she is not a moderating influence upon their effects.

3. There was a further risk of harm said to be posed by the father’s household, albeit it arose indirectly.  It was said that because C’s principal relationship is with B, the fact that she does not accompany him to the father’s home any more is distressing for him, because he is separated from her.  Ms M opined that he was angry with B for not accompanying him to see their father, and missed her greatly when he was with him.  It was this which strongly motivated the mother to justify the orders which she sought.

4. I accept that C does have a strong bond with B, and does miss her on the weeks when he is with the father.  I will consider the weight that should be given to that in due course.

5. Turning to the mother, she plainly does act in a highly emotional, volatile and angry way on occasion.  I have no doubt that she is incapable of masking her hatred of the father from C, or indeed those in her household generally.  Whilst her views of the father may be perfectly justified given her experience of family violence over many years, the exposure of C to them does him no good, and carries the potential for considerable harm.  Again, Mr Allen is likely to be a significantly moderating influence on her, but I am satisfied that there is frequent argument between them, as B reported to Ms M.  True it is that there is no reason to think that their relationship is anywhere near as volatile as that of the mother and father, and true it is that Mr Allen impressed me as stoic and sensible man, but his influence can only go so far.  The mother remains, and will always be, a problematic character in inter-personal relations.

EFFECT ON C OF PARTIES’ PROPOSALS

Equal time

1. C was spending equal time with the parties as at the time of trial.  There was some divergence of view as to the effect of that on him between Dr F on the one hand, and the Family Report writer, on the other.  Ms M was of the view that C is presently distressed, and pointed to the fact that both to herself and Dr F, when asked to draw his family, C placed himself directly in the middle of both of the warring sides.  Her opinion was that C was presently not coping well with equal time, and that he felt the tension between the parents to such an extent that he identified the most stable person in his life as being his sister, rather than a parent.  Further she pointed to the fact that C appears anxious prior to going into the father’s care, partly because he recognises that he will lose contact with B for that week. 

2. There is then his acting out in a physical way when he returns from the father’s care, which has two consequences.  The first is that it causes him to get greater attention in the mother’s home than he otherwise would receive, which is likely to cause B to feel some jealousy, potentially imperilling that relationship.  The second is the direct effect of that acting out upon B, who obviously finds it annoying.

3. For his part the father points to the benefits to C of living week about with the parties.  It is plain that C does indeed enjoy his time with the father, and particularly the activities which he is able to undertake with him.  It also enables him to form and maintain a relationship with O.  In this respect Dr F was of the view that, although not without some anxiety, C is presently coping well enough with the equal time arrangement.

Alternate weekends with father

1. The mother said that the effect of returning to an alternate weekend arrangement would be to lessen the distress which C is presently feeling from being exposed to the conflict of the parties.  She says that the fact that 12 days would elapse between him spending periods of time with the father, meant that C would be able to find greater stability in that time, and have a longer period where he is able to behave “normally” rather than anticipating or recovering from spending time with the father.

2. For his part the father says that the effect on C of such an arrangement would be to diminish the opportunities for them to interact, but more significantly, alleged that the mother is likely to find excuses to withhold the child from him, as she has done on numerous occasions in the past.  It was not in dispute that indeed the mother had used pretexts in the past for withholding C from spending time with the father, which did not have a sufficient basis to justify him being withheld.  In a sense therefore, the father said that the effect of the alternate weekend arrangement would be that it would not in reality occur.  I will consider that in due course.  However for present purposes I am satisfied that the effect of reducing C’s time so significantly would be to diminish the opportunities for him to experience his relationship with the father.  That is not to say that the relationship would fail; no party so contended.  Indeed Dr F specifically opined that C is sufficiently resilient to withstand the reduction of time with his father.  I accept that evidence.

PARTIES’ COMMUNICATION AND EQUAL SHARED PARENTAL RESPONSIBILITY

1. No party contended that these parties could possibly communicate in a way sufficient to discharge the obligations of equal shared parental responsibility.  They simply cannot communicate in a civil way for any length of time in relation to any issue.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that I have already addressed both primary considerations and a number of the additional considerations.  However I make the following further observations.

2. C has expressed a view that he would like to spend more time in the mother’s household.  He is eight years of age.  I give his views little weight.

3. In recent years, both parents have taken the maximum opportunity to participate in all aspects of C’s life.

4. No real criticism is made of the father in relation to meeting his obligations to maintain C.

5. Ms M’s evidence – and it was unchallenged – is that neither of these parties have adequate capacity to make decisions in relation to the children, which is why she proposed equal shared parental responsibility.  I will discuss the wisdom of that recommendation in due course.

6. Both parents are committed to parenthood and discharging the responsibilities of it, however both suffer from the various personality issues discussed above which impede them doing so.

7. There has been extensive family violence between the parties.  There have been numerous family violence orders between them, although none are extant.  The inference which I draw from all of that is that the parties cannot interact without behaving in a violent way, and are prone to using various species of violence as a means of coping.

8. Plainly it would be preferable to make an order least likely to lead to the institution of further proceedings.

PARENTAL RESPONSIBILITY

1. Interestingly, although neither parent sought an order for equal shared parental responsibility for C, that was the recommendation of the Family Report writer, Ms M.  Notwithstanding that evidence, that was not the proposal of the Independent Children's Lawyer.

2. Ms M’s justification for recommending equal shared parental responsibility is perhaps a little unusual.  She said that neither of the parents had sufficient capacity to discharge sole parental responsibility, and she thought that having an obligation to jointly make decisions would provide a safety net, in that one parents’ capacity may cover the cracks or gaps in the other’s.

3. However none of the parties were attracted to that reasoning.  They correctly pointed to the fact that any attempt at communication between them would be doomed to failure, although it may be possible for a short period of time.  Inevitably their personality issues would come to the fore, and there would again be conflict and hostility, with the children most likely being exposed to it.  Indeed even Ms M conceded that the parents could not communicate sufficiently well to discharge their obligations of parental responsibility.

4. I am well satisfied that if there were to be an order for equal shared parental responsibility in relation to C, any attempt by the parties to negotiate in relation to major decisions would be a complete disaster.  Rather the effect of that order would be to perpetuate that which has gone on to date, namely that each of the parties acts unilaterally and without consultation with the other, and then often fails to tell the other what they have done when C has been in their care.  Therefore really rather than there being a demonstration of equal shared parental responsibility to date, there have been two quite independent decision making processes being used in parallel.  Whilst an order for equal shared parental responsibility may well facilitate that going forward, it would not in fact be the exercise of equal shared parental responsibility.  Moreover, it will inevitably perpetuate the conflict in relation to decision making that has been a feature of the case to date.

5. Ultimately I am satisfied that the present situation in relation to decision making for C is not in his best interests, and that an order for equal shared parental responsibility would simply allow the current muddle to continue.  I am therefore satisfied that one of these parties should be given sole parental responsibility in relation to decision making pertaining to him.  However the identity of that party will depend upon the care arrangements that prevail in relation to him.  Particularly, in the event that he were to live predominantly with the mother, it would be counterintuitive and unproductive to have the father given sole parental responsibility; it would need to be the mother.  Further, there are sound arguments as to why it should be the mother even if there be equal shared care ordered, in that the parties concede that she should have sole parental responsibility for B.  There could be quite different decisions made in relation to the same issue pertaining to both siblings if the father had sole parental responsibility for C, but the mother sole parental responsibility for B.  That could result in them being different religions, going to different schools, have different medical and dental regimes and the like.

6. I shall therefore return to parental responsibility once I have determined the appropriate living arrangements for C.

WITH WHOM SHOULD C LIVE

1. There were only two options as ultimately framed by the parties.  The first was alternate weekend time proposed by the mother; the other was equal shared care as proposed by the father and supported by the Independent Children's Lawyer.

2. In T v N [2001] FMCAfam 222 Ryan FM (as her Honour then was) at [93] outlined the circumstances in which her Honour thought equal shared care could operate, as follows:

   The factors that the court should particularly examine in cases where a party seeks orders that share a child’s time equally between its parents (or others) include the following:

   ·The parties’ capacity to communicate on matters relevant to the child’s welfare.

   ·The physical proximity of the two households.

   ·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?

   ·The prior history of caring for the child.  Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?

   ·Whether the parties agree or disagree on matters relevant to the child’s day to day life.  For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.

   ·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.

   ·Do they share similar ambitions for the child?  For example, religious adherence, cultural identity and extra-curricular activities.

   ·Can they address on a continuing basis the practical considerations that arise when a child lives in two homes?  If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?

   ·Whether or not the parties respect the other party as a parent.

   ·The child’s wishes and the factors that influence those wishes.

   ·Where siblings live.

3. Whilst the statutory regime has changed since that decision, there is no reason to think that as a matter of logic those matters do not still inform the practicability of an equal shared care arrangement.  In this case, some of the matters on the list are wholly or partly met; others plainly are not.  However the mother did not really argue any of those factors as telling against equal shared care, but rather pointed to C’s current distress and his strong relationship with B as justifying her orders.

4. I identify the following matters as pointing in favour of the mother’s proposal, or against the father’s:

   ·C has a good relationship with the mother, from which he derives nurture;

   ·It would see C spending most of his time with B, with whom he has a strong relationship, and perhaps even from whom he derives his greatest stability;

   ·It would see him principally based in one parent’s home, and hence provide him with a stability that he presently does not have;

   ·It would, to a degree, shield him from the direct conflict between the mother and father, because he would be living primarily in one household, and not torn equally between them;

   ·The father’s personality does pose some risk of emotional harm to C;

   ·It would optimise his opportunity to develop a sibling bond with N;

   ·C has sufficient emotional resilience to cope with the changes which the mother’s proposal would entail.

5. On the other hand, I identify the following features as either favouring equal shared care, or at least telling against the mother’s proposal:

   ·C has a good relationship with the father, from which he derives considerable benefit;

   ·The father’s proposal would maximise the opportunities for him to have input into C’s life, and to engage in a meaningful way in all areas of it, particularly his schooling and ordinary weekday activities;

   ·The father’s proposal would allow C to develop ordinary sibling bonds with O and N equally;

   ·The mother’s proposal would maximise the opportunities for her to expose C to her adverse views of the father (noting that Ms M nonetheless said that it was virulence of the mother’s hatred which was important, rather than the extent of C’s exposure to it);

   ·If there is weekend time only, the mother is likely to use pretexts such as illness or the like to withhold C from the father, as she has done in the past.  Interestingly Ms M recognised this, in recommending that on her preferred outcome, if ordered, there should be a live prospect of primary care of C changing to the father instead of the mother, if she again withheld him without sufficient reason.  That would require more litigation, with all of its destructive tendencies;

   ·The father’s proposal might provide some incentive for B to re-establish a relationship with him;

   ·Equal shared care is the current arrangement, and although not without issue, it has worked and is working. 

6. Ultimately, although not without considerable hesitation, I weigh those factors as slightly telling in favour of the father’s proposal.  Important to my thinking is the fact that the father is roundly hated by the mother, and she has been prepared to use insufficient pretexts to withhold C, and indeed B, from him in the past, and there is no reason not to think that she would do so again.  Particularly there is no suggestion that the mother intends to take up any form of counselling to assist her to deal with her anger issues, with the strong likelihood that history will continue to repeat itself.  That would then likely lead to further litigation, which I am strongly of the view would demonstrably not be in C’s best interests.  There will therefore be an order for equal time, and for C to live with each parent on a week about basis.

7. That then causes me to return to the question of parental responsibility.  The following points are in favour of the mother having sole parental responsibility:

   ·The father does not have adequate capacity to exercise sole parental responsibility;

   ·It would enable the mother to make decisions in relation to both C and B, hence allowing some alignment in their regimes; and

   ·The father’s personality disorder may see him making decisions that are not child-focussed.

8. On the other hand, the following points favour the father having sole parental responsibility:

   ·The mother does not have adequate capacity to exercise sole parental responsibility;

   ·The mother’s hatred of the father may see her use an order for sole parental responsibility in a way to undermine the father’s relationship with C; and

   ·The father is more likely to make decisions which do not seek to undermine C’s relationship with his mother.

9. Upon balance, but again with considerable hesitation (given that I accept that neither of the parents in fact have adequate capacity to exercise sole parental responsibility) I assess the father as being the slightly less worse candidate, principally because he is not likely to use that power to undermine C’s relationship with the mother, which is not a comment that applies to the mother.  There will therefore be an order to that effect.

10. The Independent Children's Lawyer proposed however that the father should not be permitted to change C’s surname.  I accept that submission, and will so order.  Further, the Independent Children's Lawyer proposed that the mother should have some say in the selection to C’s sports, by preparing a list of three team sports each alternate year, from which the father is to choose one, and vice versa.  I am satisfied that indeed is workable, fair, and likely to promote C’s best interests.  There will also be an order that C may pursue an individual sport of his choice when in each parent’s care.

COMMUNICATION

1. Unusually neither party proposed a regime of communication between the mother and child when the child was not in their care.  That is no doubt because they recognised that it would simply become an opportunity for further direct conflict between them in the presence of the children.  I accept that, and will not provide for a communication regime between the non-resident parent and the child, save that there will be an opportunity for the child, at his wish, to telephone that parent during the time when he is residing with the other.  Since I propose to have the Independent Children's Lawyer explain these orders to the child, that will be a matter of which he will be impartially informed.

OTHER ORDERS

1. Unusually the Independent Children's Lawyer proposed that there should not be the usual orders prohibiting each parent from denigrating the other, but rather that should be a notation to the orders to that effect.  Her reasoning was, because inevitably the parties would breach any such order, to make it in those circumstances would only be to foment further litigation and disputation between the parties.  I accept that submission, even though it is an exceptional one.  These parties are likely to continue to hate each other and express that hatred openly and regularly in front of the children.  No order will stop them doing so.

2. Otherwise I am satisfied that there should be orders as contended for by the Independent Children's Lawyer and will make them.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding ninety nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 26 July 2016.

Associate: 

Date:  26 July 2016