Roberts and Chisholm
[2008] FMCAfam 1419
•19 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROBERTS & CHISHOLM | [2008] FMCAfam 1419 |
| FAMILY LAW – Parenting – competing applications as to with whom 12 year old boy should live – child has always lived with mother – mother has personality difficulties – where child should live and attend school – need for routine and stability. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAC |
| Applicant: | MR ROBERTS |
| Respondent: | MS CHISHOLM |
| File Number: | SYM 8753 of 2006 |
| Judgment of: | Sexton FM |
| Hearing dates: | 3, 4 & 5 December 2008 |
| Date of Last Submission: | 5 December 2008 |
| Delivered at: | Sydney |
| Orders delivered on: | 19 December 2008 |
| Reasons for Judgment delivered on: | 23 December 2008 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person by telephone |
| Counsel for the Independent Children’s Lawyer | Ms K. Reynolds |
| Solicitor for the Independent Children’s Lawyer | Mark Whelan Lawyers |
THE COURT ORDERS THAT:
All previous parenting orders be discharged.
The child [X], born 21 March 1996, live with the father.
[X] attend [S] School or [C] School in 2009 whichever first offers him a place and the father meet the expenses related to [X]’s attendance at that school.
The father have sole parental responsibility for [X] in relation to major decisions concerning his welfare, including but not limited to [X]’s choice of secondary school in the event a place is not available at [S] School or [C] School in 2009.
Each party have day to day responsibility for [X] when [X] is in that party’s care.
Except as otherwise provided in these Orders, and providing the mother is living in the vicinity of Newcastle or the Central Coast, [X] spend time with the mother as follows:
(a)From 5 p.m. on Christmas Eve until 5 p.m. on 2 January 2009; and
(b)From 5 p.m on 13 January 2009 until 5 p.m. on 23 January 2009.
In addition to the time specified in Order (6) [X] spend time with the mother as follows:
(a)Provided that the mother lives within a 110km radius of the father’s residence:
(i)For two out of three weekends during school terms, commencing on the second weekend after the commencement of each school term and thereafter on the second and third weekends of each three weekly cycle until [X] completes Year 9, after which time, unless otherwise agreed between the parties, [X] will spend each alternate weekend with the mother with the exception of the Father’s Day weekend when [X] will remain with the father and spend, in substitution, the following weekend with the mother;
(ii)Until [X] completes Year 9, unless otherwise agreed between the parties, on Thursday afternoons of the first week in the cycle (being the Thursday immediately before [X]’s weekend with the father) from after school until 7 p.m when the mother will collect [X] from school at the beginning of the time and return him to [location omitted] in [K] at the end of the time;
(iii)On the Mother’s Day weekend provided that if the Mother’s Day weekend falls on the weekend [X] would otherwise have been with the father, [X] will spend the second weekend of that three week cycle with the father, or the following weekend if [X] is spending alternate weekends with the mother.
(b)In the event the mother lives a distance of between 110 km and 180 km from the father’s residence, [X] spend each alternate weekend during school terms with the mother, commencing on the second weekend after the commencement of each school term.
(c)In the event the mother lives more than 180km from the father’s residence the mother be permitted to spend time with [X] on two weekends each school term, being the 2nd and 7th weekends of the school term, such time to be spent in the Newcastle/Central Coast region and the mother to give the father no less than 7 days notice of her intention to spend time with [X] on those occasions and changeover to occur as in Order (8).
(d)Irrespective of where the mother is living, for one half of each school holiday period commencing in the first term school holidays in 2009, being the first half in 2009 and all years ending in an odd number and the second half in 2010 and in all years ending in an even number.
(e)
Time on weekends to commence on Friday afternoon after school and conclude before school on Monday if the Order for 2 out of
3 weekends applies and otherwise time on weekends to conclude on Sunday at 5.00p.m.
(f)To calculate the middle of any school holiday period, the first day of the school holiday period will be the first full day after the last day of the school term (whether a weekend or weekday) and the last day of the school holiday period will be the last full day (whether a weekend or a weekday or whether a pupil free day) before [X] is required to return to school.
Unless otherwise provided in these Orders or otherwise agreed between the parties, changeover occur at [X]’s school or at the [location omitted] in [K] at the commencement of [X]’s time with the mother, and at the [location omitted] at the conclusion of that time and the father will arrange for another adult to accompany [X] to changeover unless unavoidable.
In relation to telephone communication:
(a)[X] be at liberty to telephone the other party when not in that party’s care at any reasonable time and each party give him privacy to do so; and
(b)Each party be permitted to telephone [X] on one occasion each week when in the other party’s care.
Each party notify the other party as soon as practicable if [X] has a medical emergency.
Each party be restrained from consuming illicit drugs when [X] is in that party’s care.
Each party be restrained from consuming alcohol in excess of the legal limit when [X] is in that party’s care.
Each party be restrained from physically disciplining [X].
Each party be restrained from making negative comments about the other party or members of that party’s household or family in [X]’s presence or hearing.
By no later than mid-January 2009, each party make arrangements to attend individual counselling as soon as possible and in relation to such counselling:
(a)Each party advise the Independent Children’s Lawyer of the name of the counsellor and appointments made;
(b)The father ensure Ms M participates in counselling to the extent recommended by the counsellor; and
(c)The Independent Children’s Lawyer provide a copy of these Orders and Reasons for Judgment to each party’s counsellor.
By no later than Monday 22 December 2008, the mother advise the father and the Independent Children’s Lawyer as to her address and contact details and thereafter each party keep the other informed as to his/her respective residential address, residential telephone number and mobile telephone number and advise the other within 48 hours of any change of address or telephone number.
The father, as soon as confirmed, advise the mother of the name of the school [X] will attend in 2009 and the father authorise the school to provide to the mother copies of all school reports, school photographs, newsletters or notices of events involving parents, upon the mother’s request to the school and at the mother’s expense.
Except as provided in Orders (16) and (17), each party limit their communication with each other to emergency situations regarding [X]’s welfare.
Each party be restrained from asking [X] to convey messages to the other party.
The father serve a sealed copy of these orders on the Principal of the school [X] attends in 2009, as soon as practicable but before the start of the 2009 school year.
The Independent Children’s Lawyer forthwith explain these Orders to [X].
The Independent Children’s Lawyer’s appointment continue for a period of 3 months.
The father pay to the Independent Children’s Lawyer within 60 days the sum of $840 representing the outstanding balance of his contribution to the cost of the expert report.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Roberts & Chisholm is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 8753 of 2006
| MR ROBERTS |
Applicant
And
| MS CHISHOLM |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns living arrangements for [X], born in 1996, now aged 12 years. The parties lived together for 10 years prior to their separation in mid 2004. They were living on the Central Coast at the time of separation. From that time, the parties lived in close proximity. [X] remained living with his mother and spent frequent time with his father by informal arrangement between the parties. In September 2006, the mother went to Dubbo with [X] for a week without notice to the father. In early October 2006, the mother left the Central Coast with [X] without notice to the father and moved to Hervey Bay in Queensland. The father commenced these proceedings in Gosford Local Court for recovery of [X] and for an order that [X] live with him. The father says, despite his efforts to find [X], he had no knowledge of where the mother had taken him.
At this final hearing in early December 2008, the father sought orders that [X] live with him, attend school near the father’s home on the Central Coast, and spend time with the mother on alternate weekends and during school holidays. The mother told the court she plans to leave Hervey Bay in or about mid December 2008 to live in either Newcastle or on the Central Coast, depending on the outcome of these proceedings. The mother sought orders that [X] live with her, attend a Catholic school in Newcastle and spend regular weekend time and school holiday time with the father. In the alternative, she sought orders that [X] live with each party on a week about basis.
Dr Rikard-Bell, psychiatrist, prepared a report for the Court. He recommended in his written report and in oral evidence at hearing, that [X] live with the father and spend regular time with the mother. In his view, the matter needed urgent determination as [X] needed stability and certainty about his arrangements into the future. The Independent Children’s Lawyer supported Dr Rikard-Bell’s recommendation that [X] live with his father.
Short history of proceedings
On 27 October 2006, the Gosford Local Court made a location order to the Queensland Police (missing persons unit) to provide the mother’s address to the Registrar of the Court. On 7 December 2006, the Gosford Local Court transferred the proceedings to this court, made interim orders for [X] to spend time with the father in the 2006/7 Christmas school holidays, and placed [X]’s name on the airport watch list. The court also recommended “urgent early” counselling.
This matter has been before this court on no fewer than 14 occasions between February 2007 and December 2008. The proceedings took an unusual course and this history throws some light on the difficulties in the case which emerged. The court was advised on the first 3 occasions that Terms of Settlement would be filed providing for [X] to continue living with the mother and spend time with the father. The court was then told that the mother was unwilling to finalise the matter because of the father’s lack of communication with the mother. It is noteworthy that in her affidavit of December 2008, the mother questions why, after agreeing to orders to spend time with [X] (rather than residence), the father is allowed “to bring this action back to the court some 18 months later (for custody).”
The matter first came before me on 14 February 2007 when it is clear from the Bench Sheet that the mother’s then solicitor, Ms Power, advised the court the matter had been resolved and terms would be filed prior to the adjourned date of 16 March 2007. The father had agreed that [X] would remain living with the mother in Hervey Bay and that [X] would spend time with the father in the school holidays. On 16 March 2007, and again on 18 April 2007, the court was again told the matter had been resolved and terms would be filed. On each of those occasions, the mother’s solicitor appeared for the mother and appeared by consent for the father.
On the adjourned date of 29 May 2007, Ms Power, again appearing for the mother and by consent for the father, advised the court “an issue remains as to the manner of communication between the parties regarding [X]’s travel arrangements” and the matter was listed for hearing for no longer than 2 hours on 20 September 2007. The mother was given leave to appear at the hearing from Hervey Bay by telephone.
On 20 September 2007, the mother was no longer represented and appeared in person by telephone. I made orders in relation to the holiday time [X] would spend with the father and in relation to the parties’ telephone communication. I ordered the parties to attend Relationships Australia at the Pialba office, Hervey Bay, in Queensland for a post separation parenting assessment “as to suitability for family counselling and family dispute resolution in the Pialba office of Relationships Australia”. I made an order for Relationships Australia to notify the court 48 hours before the adjourned date as to the parties’ progress and adjourned the matter until 21 April 2008 for mention.
The notification received by the court from Relationships Australia prior to the April 2008 date said the father had attended by phone on
6 November 2007for a one hour assessment. The mother had attended by phone on 7 November 2007 for 1 hr 50 minutes. The document, as it pertained to the mother, read “respondent [mother] refused a number of appointments offered for counselling. FDRP has recommended that the matter is not suitable for FDR.”
On 21 April 2008, the father appeared in person, unrepresented, and the mother appeared in person by telephone. The mother told the court she had spoken to a counsellor at Relationships Australia but had not attended appointments as arranged. She told the court she had written to Relationships Australia and wanted to read this letter to the court. I allowed the mother to start reading the letter but it quickly became clear that the letter was a highly detailed complaint about Relationships Australia and about the counsellor assigned to the matter. Within a few minutes, after I had told the mother to stop reading the complaint, the mother abruptly terminated the telephone call. The father then advised the court he intended to press his application for [X] to live with him. The father was concerned about the mother’s mental state and the impact her behaviour was having on [X]. The father believed the mother was obstructing [X]’s time with him and his telephone communication with [X]. I made orders for [X] to spend time with the father during the July 2008 school holidays and for [X] to communicate with the father by telephone. I made an order to enable the father to obtain information from [X]’s primary school about his progress.
I adjourned the matter for mention on 16 June 2008 and listed the matter for hearing for one day on 15 August 2008. I appointed an Independent Children’s Lawyer and ordered a Family Report.
On 16 June 2008, I noted the mother’s advice to the court that she was not prepared to provide her filed documents to the Independent Children’s Lawyer or to co-operate with the Independent Children’s Lawyer by allowing him to speak to [X]. I noted that the matter may proceed on an undefended basis if the mother did not change her position on this issue. I ordered that the mother make [X] available within 14 days to speak to the Independent Children’s Lawyer.
At the request of the Independent Children’s Lawyer, the matter was re-listed before me on 18 July 2008. The father and the Independent Children’s Lawyer appeared in person and the mother by telephone. The August 2008 hearing date was confirmed, and I noted the father would make the necessary arrangements at his expense for the mother and [X] to travel to Sydney for the August hearing. I noted the family report writer would telephone the mother the following week to arrange for the mother and [X] to be interviewed for the family report. On 25 July 2008, the matter was again before me and each party appeared by phone. I noted the mother had failed to make [X] available to speak to the Independent Children’s Lawyer and failed to comply with orders for [X] to spend the July holidays with the father. The mother terminated the telephone call during the mention and again when the court attempted to re-contact the mother. I made other orders requiring the mother to deliver [X] to the Court on 15 August 2008 and restraining the mother from moving her place of residence or [X]’s place of school. The matter was again relisted to hear the mother’s oral application for an adjournment of the hearing on 15 August 2008. That application was dismissed by His Honour Federal Magistrate Altobelli on 12 August 2008.
On 15 August 2008 the mother and the father appeared before me in person. The mother had failed to deliver [X] to the court as ordered, but as a result of the court’s intervention, [X] was brought to the court later in the morning. I ordered that [X] spend time with his father until
19 August 2008to enable the Independent Children’s Lawyer to arrange a meeting with [X] and for [X] to meet with Mr Hibbard,
a family consultant in the Sydney Registry. On 19 August 2008,
Mr Hibbard gave oral evidence. Mr Hibbard was concerned about [X]’s inability to express any views to him and strongly recommended the appointment of a Part 15 expert before final determination, to assess each party’s mental status. The question for determination, by this time, was whether [X] would live with his mother or with his father. I ordered an expert report, and listed the matter for hearing for 3 days in December 2008. I ordered a transcript of Mr Hibbard’s evidence be made available to each party and the court expert. I made further orders for [X] to spend time with the father and to communicate with him by telephone.
Between September and December 2008 the mother was again represented by a solicitor and the matter came before me on a further two occasions before the 3 day hearing commenced on 3 December 2008. By that time, the mother’s solicitor had filed a Notice of Ceasing to Act.
Each party’s affidavit material provided the court with little assistance although the mother’s material was voluminous, an affidavit of
94 pages filed in August 2008 and another, filed the day before hearing, of 105 pages. Another of the mother’s affidavits, sworn on 4 July 2008, addressed her reasons for refusing to permit the Independent Children’s Lawyer to meet with or speak to [X] and her criticisms of the court process and of the related organisations. This affidavit of 15 pages did not assist me. I quote from page 13 of that affidavit:
In the meantime why should I subject my son to the prejudices and bias of a court which treats us as a norm without even a pretence to fairness or equity or insights or evidence? It would be heartless and irresponsible for me to expose my child to this. How could I allow him to be personally subjected to such a wilfully destructive and ultimately useless system of processes made in hell?
The final hearing of the matter was further complicated by the mother’s failure to attend the hearing personally, as ordered. Instead the mother called the National Enquiry Centre on the morning of the hearing, and the court initiated a telephone call to her in Hervey Bay, to enable her to participate by phone. The father appeared in person and the Independent Children’s Lawyer was represented by counsel.
At the end of the 3 day hearing, pending final determination, I made orders providing for [X] to travel from Hervey Bay to Sydney on 15 December 2008 (after his school year ended) to spend time with the father. I noted on the court record that [X] had spent last Christmas Day and New Year’s Day with his father, and that the parties agreed [X] should spend Christmas Day and New Year’s Day with the mother this year, whatever the outcome of the proceedings.
The father is 45 and the mother 52. The father lives with his fiancé,
Ms M, in Ms M’s home at [K] on the Central Coast. From his first marriage, the father has two children aged 17 and 15, with whom he has had very little contact. The father is employed full time as [omitted] on the Central Coast working 9 to 5 each weekday, and on some Saturdays. Ms M is employed full time as a [omitted], which includes working a half day on alternate Saturdays. Ms M has a 21 year old son from a previous relationship with whom she has regular contact, but who now lives independently. Ms M has extended family with whom she spends regular time. The father has regular contact with his mother who lives close by. The father’s father, to whom the father was very close, died in August 2008.
The mother is not in the paid workforce. She is a university student and has been living alone with [X] for the last 2 years in Hervey Bay. Her parents and her two brothers live in the Newcastle area. The mother says she plans to leave Hervey Bay on or about 15 December 2008 to find long term accommodation in the Newcastle region or on the Central Coast.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children.
THE PRIMARY CONSIDERATIONS
The benefit to [X] of having a meaningful relationship with both his parents.
Dr Rikard-Bell says [X] has, and needs, a close relationship with each of his parents. Each party acknowledges [X]’s love for the other party and his need to spend time with each of them. On each party’s proposal, assuming the mother lives within a reasonable distance of the father’s residence, [X] will spend regular time with the other party and continue to benefit from a meaningful relationship with each of his parents.
The need to protect [X] from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
At the heart of this case is the critical question of whether [X] is at risk of psychological harm if he lives primarily with the mother. Although he could find no evidence of mental illness, Dr Rikard-Bell believes [X] is at risk of harm if he continues to live with his mother, because of the mother’s personality characteristics. At the commencement of the hearing Dr Rikard-Bell said he was unable to say definitively, on the information available to him, that the mother has a personality disorder, but she may have.
As already noted, the mother was self represented at the hearing and appeared by phone. The court gave the mother considerable latitude when she cross-examined witnesses, in particular, Dr Rikard-Bell. However, the court found it necessary to intervene frequently because of the mother’s tendency to make lengthy statements rather than ask questions and because of the mother’s difficulty confining her questions to a time-frame and a specific line of inquiry. In particular, the mother found it difficult, if not impossible, to contain her cross-examination of Dr Rikard-Bell who, at the court’s request, appeared by telephone on three or four separate occasions during the hearing as a result of the mother’s request to continue questioning him. Despite the difficulties this caused both the court and Dr Rikard-Bell, the mother said she was unavailable for one of the opportunities created for her (though the arrangement was made with her consent) because she had not made alternative arrangements for [X] and a friend to be collected from school, and summarily announced she needed to leave. The mother repeatedly interrupted the proceedings despite requests by the court not to do so. At the end of his evidence, having responded to the mother’s questions at different times over the 3 days of hearing,
Dr Rikard-Bell said he was more inclined to the view that the mother suffers from a personality disorder. Dr Rikard-Bell attributed the mother’s behaviour during the hearing to her personality difficulties.
Dr Rikard-Bell made the following relevant observations of the mother’s difficulties and his view of their impact on [X].
(a)The mother has difficulty making and executing a rational plan because of her obsessional characteristics. When he interviewed the mother in October 2008, the mother had no clear or definite plan about moving to Newcastle or where [X] would attend school. He says at page 9 of his report:
She was very vague about when she planned to do this and she didn’t seem to have formed a clear direction which seemed extraordinary considering the fact that [X] was due to go to high school next year.
Even though the mother said at hearing she planned to move to the Newcastle/Central Coast area, Dr Rikard-Bell was not confident the mother would execute that plan.
(b)The mother has difficulty judging how to respond, and to separate what is relevant from what is irrelevant. This explains why she has difficulty executing plans which leaves both [X] and the mother confused. [X] has no clarity as to where he is headed which leads to instability and insecurity for him.
(c)The mother has difficulty with inter-personal interaction. The mother is hoping to connect with others but overwhelms them and others cannot cope with the emotional overload she places on them. The mother is unable to distil issues relevant to the court. This inability to discriminate leads to the voluminous letters and affidavits in evidence.
(d)The mother primarily focuses on her need to communicate with the father. However, she cannot have a rational and objective discussion about [X]’s future with the father because she cannot separate her own ongoing issues with the father from what is best for [X].
(e)The mother’s interactions are destructive and intense so it requires a lot of energy to contain her. The intensity of her relationships with others affects all her relationships. She has a dependency problem on the relationships she has formed. She appears to have been unable to emotionally separate from the father. Dr Rikard-Bell says:
I suspect that she has an obsessional personality style which leads her to have difficulty releasing things when they are the object of her attention.
(f)Though she is not seeking to harm others, if someone does not agree with the mother, she tries to convince them of her view in a tenacious exhaustive way. She is preoccupied and absorbed in her own issues and exhausts others. She cannot set boundaries.
(g)The mother has made some decisions that would generally be viewed as out of the ordinary. For example:
1. Taking herself and [X] to live in Hervey Bay, when remaining so far away was clearly unsustainable.
2. Choosing to accompany the father to Greece after separation when the father planned to live there with his girlfriend.
3.
Arriving at her appointment with Dr Rikard-Bell at
9 a.m., the father’s allocated time, when her own appointment was later in the day.
4. On one occasion, maliciously damaging clothing in her sister-in-law’s shop by pouring bleach on the clothing (an allegation denied by the mother).
5. Not paying the Harbour Bridge toll, not wearing a seat belt because it’s the law and driving on private roads because the road should be for everyone.
According to Dr Rikard-Bell, the mother’s personality style has not had a major impact on [X] to date because [X] has not needed other relationships. However, Dr Rikard-Bell believes the mother will have great difficulty with [X] as he gets older. [X] will be polarised at one extreme or the other, either rejecting the mother completely, or being totally dominated by her. Either way, Dr Rikard-Bell holds a strong view that [X] will have difficulty forming a healthy identity if he remains primarily with his mother.
This is the factor to which I give most significant weight.
THE ADDITIONAL CONSIDERATIONS
[X]’s expressed views and the weight those views should be given.
The father says [X] has said to him over a considerable time “when I go to high school, I want to live with you.” The mother says she made a commitment to [X] 6 months ago to move back to the Newcastle/ Hunter Valley or Central Coast area because [X] wants to live closer to his father.
In August 2008, [X] made it clear to Mr Hibbard, family consultant, that he loves both his parents, does not want to have to choose between them and does not want to hurt either of them. In cross-examination at hearing on 19 August 2008, Mr Hibbard said he was concerned that [X] was unable to think of anyone to take to a desert island and was unable to contemplate three wishes. Mr Hibbard believed [X] was concerned about his mother’s reaction if he were to live with the father. [X] said to Mr Hibbard, “I don’t want to choose what I have to do next year. I don’t want to have to say what I want to do next year.” Mr Hibbard believed [X] to be “incredibly anxious.” He thought it possible that [X] was depressed, but Mr Hibbard was unable to form a concluded view. However, Mr Hibbard observed that [X] was pleased when Mr Hibbard told him he was having lunch with his father on the day of interview and pleased when told he was to spend that weekend with his father.
In November 2008, [X] told Dr Rikard-Bell that he wanted more time with his father, but Dr Rikard-Bell found [X] had difficulty formulating a view as to his preferred living arrangements. Dr Rikard-Bell said this was unusual in a child [X]’s age who would usually readily express a preference. However, [X] told Dr Rikard-Bell he would like to be living closer to his father and that it was difficult living so far away from him. In Dr Rikard-Bell’s view, [X] is confused as to why he moved to Hervey Bay and is aware there will be further changes. [X] indicated he would miss his mother if living with his father, and miss his father if living with his mother.
I have regard to [X]’s expressed view that he would like more time with his father, and to Dr Rikard-Bell’s observation that it is unusual for a child of [X]’s age to not want to say what he wants. However, I give minimal weight to this factor in reaching my decision.
The nature of the relationships between [X] and each parent and [X] and other persons.
As already noted, [X] has a close and loving relationship with each party.
[X] told Dr Rikard-Bell he gets on well with Ms M and Ms M confirmed that she and [X] have a good relationship.
Although the father says he keeps [X] in touch with his maternal grandparents, and [X] sees his paternal grandmother during holidays, neither party adduces evidence of other relationships significant to [X].
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between [X] and the other parent.
Since separation in 2004, the mother has exhibited contradictory behaviour in facilitating time between [X] and the father. The mother does not address, for example, the impact of her sudden decision to leave the Central Coast with [X] in September/October 2006 to live in Hervey Bay, Queensland, on [X]’s relationship with his father. The mother makes no apology for the impact of this decision on [X], who had a loving and close attachment to his father when the parties lived in close proximity on the Central Coast. Instead, the mother is critical of the father for trying to locate [X] by asking him on the phone where he was living.
The mother says that since separation in 2004, she has always facilitated [X]’s time with the father, including making [X] available around the father’s work commitments. The mother even agreed to live in Greece for two years with [X], so the father could pursue a relationship with a new girlfriend there. The mother complains that she had expected they would leave for Greece in December 2005, and that the father caused her serious inconvenience and financial loss because he did not let her know he had changed his mind. The mother says that while [X] lived on the Central Coast, [X] spent time with the father overnight each week and the father joined [X] for dinner at her home each week. The mother says that after separation the parties enjoyed an amicable relationship, although the father refused “to discuss any issues with me.”
In September 2006, the mother travelled to Dubbo with [X] for a week without notice to the father. In early October 2006, the mother moved to Hervey Bay with [X] without notice to the father. The mother says the father’s conduct left her with no choice. In particular, she says she left for Dubbo because the father sent the police around to her home one evening to check on [X] simply because she had not let the father talk to [X] on the phone. She says [X] was asleep. The following day, when she attended the father’s office to discuss matters with him, she says the police demanded she move on when she waited for the father outside his office in her car. The mother says that although the police told her the real estate agency reported her yelling and swearing and causing trouble in the office, she had done nothing of the sort. The mother says, as a result of these two approaches by police, she feared the father might collect [X] from school and not return him. She says[1]:
I made a decision to go home, quickly pack a bag, collect my son from school early and somehow decide from there where to go. I probably would not even have done that except I needed to get [X]’s favourite toy animal that he slept with so he wouldn’t pine for it and organise for the neighbours to feed our cat and lock up the house.
[1] Affidavit sworn December 2008 at paragraph 42
The mother says she contacted the father to tell him they were staying with a friend until the father would communicate with her. He refused. She returned home to find an eviction notice and wanted to talk to the father. The mother says she feared being “out on the street with literally no money.” She says she had no idea why the father “was being so vindictive and clearly trying to destroy me and my reputation.” She decided to leave again and “it was imperative [Mr Roberts] [the father] did not know where we were going.” She then says (without explanation):
Coincidentally, the night before, and while [X] was at his father’s place, I was arrested, taken to the Police Station, photographed, fingerprinted and locked behind bars for five hours and eventually released. I went home and finished packing through the night and we left the next day as planned.
The mother says she then travelled to Hervey Bay with [X] and remained there. She says since then, apart from the July 2008 holidays when she did not permit [X] to come to Sydney in case he was forced to meet with the Independent Children’s Lawyer, [X] has spent every school holidays with the father since she moved.
Dr Rikard-Bell reports at page 8 the mother explaining[2]:
…it had reached a point where it had become untenable for her. She felt she was being harassed by the police. [Mr Roberts] was calling the police for no reason. He ceased the rental payments and she was going to be evicted. ‘[Mr Roberts] was pulling the ground from under me. I had no idea why he would do this. He made my life as difficult as possible.’ … ‘he didn’t pay the rent. I had to go because I was being evicted. [Mr Roberts] would not pay the rent. It was him who suggested that I give him the cash. I gave it to him.” The situation became so stressful that she got in the car and began driving to Queensland with no particular destination in mind. She had heard that there was a friend of hers living in Hervey Bay in a large house and she decided to move there and stay with her. … she had no intention of staying in Hervey Bay long term. …
[2] Report of Dr Rikard-Bell
Dr Rikard-Bell believes the mother’s decision to move such a long distance from the Central Coast was extraordinary, given it could never have been sustainable in the long term.
The father gives a different version of what occurred leading up to the mother’s decision to relocate. He says he found it impossible to have a rational dialogue with the mother about [X]’s welfare, because the mother was fixed on a need to discuss old issues between them. He says she used to ring him several mornings each week to arrange to meet him for coffee, and he spent many hours meeting with her “to placate her” for [X]’s sake. The father and Ms M both say the mother threatened to run away with [X] a few weeks before she left. The father says the mother left the Central Coast when he decided he was no longer going to meet with the mother as she demanded. The mother had said to him “I will sit in reception until you lose your job”. He says it was the last straw when she attended his office, swore at office staff and the police had to be called. He decided to stop meeting with the mother. The father says his decision to take this stand prompted her to take [X] away from him. When the mother initially took [X] to Dubbo, he found out because [X] “let it slip”. The father says when she travelled to Hervey Bay, it took him 3 months to find her, and he was frantic. He made an application to the Local Court, and the police were involved in the search. Although [X] contacted him from time to time, [X] could not tell the father where he was.
Both before and after the mother took [X] from the Central Coast,
Ms M says she listened to the mother on the phone calling the father derogatory names, threatening to ensure the father would never see [X] again, threatening to hurt herself and [X], sometimes in front of [X].
The father denies the mother has supported his relationship with [X]. The father says neither he (nor [X]) ever knew whether the mother would take [X] to the plane as arranged for holiday time. The mother usually denied [X] access to his mobile phone in the period leading up to the holidays. The father says before school holidays [X] was usually anxious about whether his mother would permit him to travel. He recalls [X] calling him from a public phone because his mother had removed his mobile phone. He recalls [X] calling to say “mum won’t let me come” and the mother cutting him off. The mother says she wanted the father to telephone on the landline.
In Dr Rikard-Bell’s view, the father is likely to encourage a close and continuing relationship between [X] and his mother. While he accepts the mother has facilitated time between [X] and the father, Dr Rikard-Bell formed the view it has not been without considerable difficulties. He says the mother’s difficulties in her relationship with the father may lead to problems in facilitating [X]’s time with the father, if [X] were to live primarily with the mother. I accept Dr Rikard-Bell’s view on this issue.
The capacity of each parent and any other person to provide for the needs of [X] including emotional and intellectual needs.
Each parent describes the diverse range of activities made available to [X]. I am satisfied each party has the capacity to give [X] access to an enjoyable lifestyle.
The father has two children from a previous marriage, [Y] aged 17 and [Z] aged 15, with whom he spent almost no time during their childhoods. Dr Rikard-Bell believes it is some cause for concern that the father did not commit to time with these children and has had bitter break-ups with the mothers of all his children. However, Dr Rikard-Bell is impressed by the father’s commitment over a long period to [X].
The mother believes the father suffers from serious character flaws and lists over 50 of these flaws in her 105 page affidavit[3].
[3] Paragraphs 35 to 37 of mother’s affidavit sworn December 2008
In terms of parental capacity, the most serious allegations the mother makes concern her claims of the father’s habitual alcohol abuse, his drug use, his propensity to violence and depressive demeanour. The mother says prior to separation the father used to consume three beers and (mostly) two bottles of red wine every night, and vomited 2 to 3 nights a week. The mother claims that eight years ago the father punched her in the mouth, and split her lip, causing long term scarring. As well, the mother claims the father exposed [X] to violent movies and television against her wishes.
The father said he drinks moderately, up to two bottles of wine on a weekend, and never uses drugs. The father claims to be focussed on fitness and a healthy weight. Ms M confirms that the father drinks socially and only moderately, and considerably less than when they were first living together nearly 2 years ago. I accept Ms M’s evidence.
In relation to the mother’s health, it is common ground that the mother used to suffer from seizures of an unknown cause. The mother disputed the number of these seizures and denied the father’s recollection of the seriousness of some of the attacks. The mother says she has not had a seizure for many years. I am not satisfied this issue currently impacts on the mother’s capacity to parent.
Ms M raised concerns about [X]’s diet. She has noticed when [X] has been staying that he will only eat “white things”, such as processed cheese, chicken, cottage cheese and pasta. The mother says [X] has always been a fussy eater and agrees he does not eat any fruit or vegetables. While I find it likely [X] will eat a more balanced diet if with his father, I do not regard this issue as critical.
Of more significance are issues Ms M raised about comments [X] had made to her about the mother’s behaviour, which Ms M also reported to Dr Rikard-Bell. [X] has told Ms M that sometimes he wishes he were dead, and when he and his mother are in the car, and a police car goes by, he wishes the police would stop and take his mother to gaol. Ms M believes [X] has been frightened of his mother at times. [X] also told Ms M his mother had told him she would take him and that he would never see his father again. Ms M reported the mother refusing to wear a seat belt “because it’s the law” and driving on private roads because she would not accept some roads were not open to the public. The father reported the mother refusing to pay the Harbour Bridge toll. I have already noted Dr Rikard-Bell’s concerns about some of these matters. In addition, Dr Rikard-Bell is concerned about the impact of the mother’s inability to make and implement plans on her parental capacity. He expresses significant concern about the mother’s failure to have made definite plans for [X]’s schooling for Year 7 in 2009 by the time she met with him in October 2008. I agree with Dr Rikard-Bell’s concerns.
Dr Rikard-Bell says, and I accept, that the father is better able to provide [X] with security and stability including a more stable social network.
On the basis of these findings, I am satisfied the father’s parental capacity is superior to the mother’s. This is a factor I take into account.
The attitude to [X] and to the responsibilities of parenthood demonstrated by each parent.
I have dealt with this factor under other headings, with the exception of financial issues.
The mother says she has struggled financially, with government benefits as her only income, and that [X] has missed out on activities from time to time because of the cost involved. Nevertheless, I am satisfied the mother has managed her limited income well for [X]’s benefit and that she has provided for him with minimal assistance from the father.
It is common ground that the father has paid all [X]’s airfares to and from Hervey Bay for the last 2 years, that he has met the expense of [X]’s mobile phone and that he has bought [X] clothes and other items. As well, I accept there have been periods when the father’s wages have been garnisheed by the Child Support Agency. However, I am not persuaded the father has paid child support in accordance with his capacity to do so since separation.
After separation, the father paid half the mother’s rent, her mobile phone bills and at times other bills, though at times he allowed the rent to fall into arrears. While the father claims to have brought the rental account up to date before the mother was asked to leave the rental premises, and while I find the father’s evidence as to the cause of the mother’s eviction more likely than the mother’s, I am critical of the father for exposing the mother to possible eviction. I also find it unacceptable that the father has failed to lodge his taxation returns for many years, although I accept his evidence that he is now bringing his affairs into order.
This factor does not weigh heavily in my decision.
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with [X], participating in decision –making about his welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain [X].
The mother says the central problem for [X] is the lack of communication between the parties which is caused by the father’s unreasonable and inexplicable refusal to communicate with her. She acknowledges at times removing [X]’s mobile phone to compel the father to call on the landline, which would provide an opportunity for her to speak directly to the father. She does not approve of [X] walking over the road in the dark to call his father in private.
The mother is intensely frustrated by the father’s refusal to communicate with her and questions about this problem were the focus of many of the mother’s questions to Dr Rikard-Bell. In her cross-examination of the father, the mother attempted to use the opportunity to “communicate” with the father, rather than address specific questions relevant to the outcome of this case.
The mother complains she has been unable to achieve dispute resolution with the father during the litigation process, something she says she has wanted from the beginning. It is noteworthy that the mother does not acknowledge the court’s order of 2007 for the parties to attend mediation at Relationships Australia in Hervey Bay, and her subsequent decision to lodge a detailed complaint about Relationships Australia rather than cooperate with its processes.
In Dr Rikard-Bell’s view, part of the explanation for the mother’s behaviour is that she has remained intensely focussed on the father after separation which manifests itself in behaviour seen by “others” as harassment. The father says it is impossible to reason with the mother, so he has given up trying to have direct communication with her.
The mother does not accept she has any responsibility for the father’s unwillingness to communicate with her. She claims the father has denigrated her in front of [X] stating “it is a systematic ongoing relentless destruction of his child’s mother”, but claims she has never denigrated the father in return. In cross examination, the mother does not accept that her assessment of the father’s character, set out in her affidavit material, might be relevant to the father’s reluctance to communicate with her. The mother uses words to describe the father such as[4] manipulative; selfish; critical; cunning; deceptive; controlling; sneakily aggressive; charming; smart; a tosser; a womaniser; a liar; a cheat; a smart arse; ‘the great pretender’; unprincipled; phoney; vain.
[4] Page 35 of mother’s affidavit sworn December 2008
In Dr Rikard-Bell’s view, the parties should communicate through a third party rather than directly. In his view, direct verbal communication between the parties “is not going to work” and joint counselling “will not work” as it will lead to aggravation between the parties and make [X]’s situation more difficult. He said “bad communication is no communication” and is “destructive”. The mother was clearly distressed by Dr Rikard-Bell’s response to this issue. She offered a guarantee to the father that if he would agree to some means of communication with her, she would agree to no more questions about “Greece, rental payments or fraud”.
In Dr Rikard-Bell’s view, the mother’s personality difficulties, including her intense and overwhelming style of communication, will lead to enormous difficulties for [X] in the future because he will have trouble separating his issues from her issues and will find it difficult to form other relationships.
I accept Dr Rikard-Bell’s evidence and give significant weight to these matters.
The likely effect of any change in [X]’s circumstances, including the likely effect on [X] of any separation from either parent or any other child or other person with whom [X] has been living.
On each party’s proposal, [X] will be required to make adjustments because the mother plans to move from Hervey Bay to the Newcastle/Central Coast region.
Dr Rikard-Bell believes [X] would separate readily from his mother, given his age and the strength of his relationship with the father, on the basis he spends significant time with her.
The practical difficulty and expense of a child spending time with and communicating with a parent.
On the evidence available, I find it likely the parties will be living in reasonable geographical proximity to one another. This is therefore not a difficulty in this case.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested.
This is not a relevant factor in this case.
The orders which would minimise the risk of there being further court proceedings about the child and whether those orders would be preferable.
I am not satisfied that there are any orders the court can make which would minimise the risk of further court proceedings.
Any other relevant fact or circumstance.
An issue arises as to which secondary school [X] will attend. The father said he hoped to enrol [X] in the [C] School and believed there was an 80% chance [X] would be accepted. The father said he believed the school would suit [X], with a strong focus on sport and languages. He said if [X] was not accepted at that school, the father would consider [K] High School, which has a good academic reputation and sits in a lovely physical environment. He has had some involvement in the school conducting charity auctions. He is aware Ms M’s son had a good experience as a student at that school.
The mother said she made a firm commitment to [X] 6 months ago that they would move to Newcastle, the Hunter Valley or even the Central Coast. The mother proposed [X] attend [P] School in Newcastle and said she has made inquiries there. She said she had enrolled [X] at [M] school in Hervey Bay, even though she told the school “I wanted to move to NSW but to make them feel better I said this would be her back up.” She said she believed enrolling [X] in a Catholic School would make his enrolment at [P] School more likely. The mother said she supported [X] attending a Catholic school, not a public school. She also referred to [S] School on the Central Coast as a possible option. In cross-examination by the mother, the father agreed they had planned for [X] to attend a Christian school.
The Independent Children’s Lawyer’s counsel submitted at hearing that the court should make an order for [X] to attend the [C] School school if he is accepted there, or as second priority, [S] School or third, [K] High School. On the basis of the parties’ agreed intention to send [X] to a Christian school, I decided [X] should attend a private Christian school on the Central Coast at the father’s expense, if a place was available. When I handed down the orders on 19 December 2008, these reasons had not been settled. My orders provided for [X] to attend the [C] School if a place was available, and otherwise that the father select [X]’s secondary school. After I had handed down the orders,
Mr Whelan, the Independent Children’s Lawyer advised the court that [X] had been interviewed and accepted at [S] School and that [X] had asked Mr Whelan to tell the court he very much wanted to accept the place he had been offered. On the basis of that further information, I discharged that order, and substituted another order to give [X] and the parties certainty about [X]’s schooling arrangements in 2009.
PARENTAL RESPONSIBILITY
Section 61DA requires the court to 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. Section 65DAC applies whenever a parenting order provides for equal shared parental responsibility.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The father says he finds it impossible to communicate with the mother by telephone or face to face. He says the mother is unable or unwilling to confine herself to issues the father regards as relevant to [X]’s welfare. The mother says she would like to communicate face to face and/or by telephone with the father. In Dr Rikard-Bell’s view, as earlier noted, direct communication between the parties is unproductive and should be avoided to the extent that is possible. In cross-examination, Dr Rikard-Bell recommends against an order for equal shared parental responsibility. Given the mother’s personality difficulties, and the consequent problems joint decision making between the parties would cause for [X], I have decided it is not in [X]’s interests for the parties to have equal shared parental responsibility.
Conclusion
[X] has been described by both Mr Hibbard and Dr Rikard-Bell as a sensitive child who finds himself in a very difficult position. He loves both his parents and wants, and needs, to spend substantial time with each of them. I accept Dr Rikard-Bell’s opinion that the mother has personality difficulties which will cause [X] increasing problems as he grows older if he lives primarily with her. Dr Rikard-Bell says [X] is old enough to be separated from his mother. He says the father presents, “as a very competent forthright person who is articulate and insightful.” … “a capable and caring parent” … “a great deal to offer [X].” He says the father is better able to provide [X] with security and stability and that [X] will have a balanced relationship with the father while still spending time with the mother.
I find no practical impediments to the father caring full time for [X], despite his work commitments. Given my findings that the father has the capacity to care for [X], meet his needs, including his need to spend time with the mother and communicate with her, I have decided [X] will live primarily with his father.
I acknowledge this decision will cause the mother distress because of her devotion to [X] and long commitment to his day to day care. I hope the counselling I have ordered will assist the mother’s adjustment to the change in [X]’s arrangements.
I have given considerable thought to the question of how much weekend time [X] should spend with the mother. The mother says she is committed to living nearer to the father but was unable to say where she would be living if [X] lived on the Central Coast. She said “I absolutely prefer Newcastle.” I took into account that counsel for the Independent Children’s Lawyer proposed 3 out of 4 weekends, and that in his written report, and early in the hearing in oral evidence, Dr Rikard-Bell proposed a similar arrangement, though by the end of the hearing, he was not sure it should be as frequent. I took into account the strength of the loving relationship between [X] and the mother and Dr Rikard-Bell’s view that [X] needs substantial time with her. However, [X] is starting high school in a new school in 2009 in an area in which he has not lived for the last two years. He will need time to adjust to his new living situation and will need time to make friends at school and out of school. I have decided [X] needs some weekend time with the father, and weekend opportunities to develop his friendships. I have therefore decided 2 out of 3 weekends with the mother is more appropriate, with one afternoon in the other week, if the travel is not too onerous. This arrangement will continue until [X] completes his third year of high school, by which time I expect [X] will be well established on the Central Coast and will need increasing time with his peer group on weekends. His time with the mother will therefore be reduced to every second weekend from the end of Year 9.
In relation to telephone communication, Dr Rikard-Bell said he did not have a firm view but was not sure about whether telephone calls were helpful and did not support an order for telephone calls at specific times. I have decided [X] should be free to call either party at any reasonable time, but that each party should be restricted to initiating one call a week to [X] when he is with the other party, so [X] is not too frequently exposed to the tension between the parties.
I have made specific orders as to the time [X] will spend with the mother, depending on where the mother is living. Given the mother had not committed to living in a particular location, I have had regard to the distance between the father’s and mother’s homes when deciding the weekend arrangements during school terms. I have decided if the mother lives more than 110km away from the father, which is the approximate distance from [K] to the Newcastle region, it would be impractical to expect [X] to spend more than alternate weekends with the mother.
I am satisfied the orders I delivered on Friday 19 December 2008, set out at the beginning of these Reasons, are in the best interests of [X].
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Skye Owen
Date: 23 December 2008
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