Rodden and Craddock

[2018] FCCA 1463

FEDERAL CIRCUIT COURT OF AUSTRALIA

RODDEN & CRADDOCK [2018] FCCA 1463

Catchwords:
FAMILY LAW – Application for final parenting orders.

Legislation:

Family Law Act 1975 (Cth) ss.60CA, 60CC, (2), (3), 61DA

Cases cited:

re F: Litigant in Person Guidelines (2001) 161 FLR 189

Applicant: MS RODDEN

Respondent: MR CRADDOCK

File Number: LNC 428 of 2017

Judgment of: Judge McGuire

Hearing date: 30 & 31 May 2018

Date of Last Submission: 31 May 2018

Delivered at: Launceston

Delivered on: 31 May 2018

REPRESENTATION

The Applicant Appeared in person

Counsel for the Respondent: Ms J Higgins

Solicitors for the Respondent: Bishops

ORDERS

1. That the parents MS RODDEN (“the mother”) and MR CRADDOCK (“the father”) (“the parents”) have equal shared parental responsibility for the child [X] born 2011 (“the [X]”).

2. That [X] live on a week about basis between his parents with the changeovers to occur on Fridays at the conclusion of school, and if not a school day, then Fridays at 4.00 p.m. at the Town 1 or such other venue as agreed between the parents in writing.

3. That should [X] not otherwise be with his mother pursuant to these orders then he spend time with his mother:

   (a)On Mother’s Day each year between 10.00 a.m. and 5.00 p.m.;

   (b)On (religion) festival days as agreed between the parties; and

   (c)On the mother’s birthday and [X]’s birthday as agreed between the parties.

4. That if [X] is not otherwise with his father pursuant to these orders then he spend time with his father:

   (a)On Father’s Day each year between 10.00 a.m. and 5.00 p.m.;

   (b)On (religion) festival days as agreed between the parties; and

   (c)On the father’s birthday and [X]’s birthday as agreed between the parties.  

5. That such other times between his parents or variations of the above as agreed between the parents from time to time in writing.

6. That each of the parents by themselves and/or their servants or agents be and is hereby restrained from denigrating the other parent directly or indirectly by way of written, email, text or Facebook communication or other media and from denigrating the other parent to or in the presence of [X].

7. That these Orders authorise each of the parents to have full involvement with [X]’s schooling and access to [X]'s General Practitioner and other medical professionals normally afforded the parents.

8. That the father continue to consult with his General Practitioner in respect of his conceded diagnosis of Bipolar disorder and to comply with all directions of his General Practitioner in respect of the prescription and intake of any medication.

9. That each of the parties be and is hereby restrained from taking the child [X] to consult with any counsellor, psychologist, behavioural or social scientists (save and accept the school counsellor) without the express written consent of the other party or an order of this Court.

THE COURT NOTES:

1. That the regime proposed by these Orders will see [X] moving to his father on Friday 8 June 2018.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 428 of 2017

MS RODDEN

Applicant

And

MR CRADDOCK

Respondent

REASONS FOR JUDGMENT

1. …  “Listen here you fat f--k” … “your bogan bitch can play happily (sic) families on Facebook with her kids as [X] is no longer available for you to use.  He is my son and not your paycheck (sic) you bludging junkie filth.” … “you are as weak as piss and a completed (sic) moron if you think i care you are alive or dead c--t …”[1]

   [1] Extracts from annexures to the trial affidavits of Ms Rodden

2. It is with such colourful but vitriolic eloquence that the three important adults in the life of [X] communicate in respect of this young boy.  The affidavits of the mother, the father, and the father’s partner, Ms S, are each highlighted by the annexure of reams of text or Facebook messaging between these three adults and almost entirely of the same tenor as extracted above showing the full spectrum of their linguistic and expressive capabilities albeit often with grammatical confusion of usage as either verb or noun.  Whilst such vernacular may be common and even acceptable in 2018 in discourse between consenting adults, its use in threatening tone between parents (and other interested adults) in negotiating the parenting arrangements for a seven year old boy remains inappropriate but demonstrative of the impediments facing this child in negotiating his life.

3. [X] is just seven years of age being born 2011. He is the subject of a parenting dispute between his mother and his father. It is perhaps not surprising that the Family Reporter observed [X] to be significantly socially and emotionally dysfunctional or that [X] has apparently caused a lock down and/or lockout of his teacher and other students at his primary school.

4. Ms Rodden is the applicant mother. She is somewhat surprisingly an applicant using the facilities and assistance of this Court when her final address to the Court was resplendent with her views as to the Family Courts in this country being… “and parents know that they’re helpless because their children will suffer the same emotional abuse and I believe it’s all in the hands of our un-informed family Court system when it comes to people like this”. Ms Rodden represented herself. Consistent with the authority in re F: Litigant in Person Guidelines[2] the Court offered Ms Rodden with an exposé as to the procedure in these Courts with an open invitation to request assistance should she have any questions as to procedure. She was provided with copies of the relevant sections of the Family Law Act and with aid during the trial as to evidentiary matters and also some assistance by way of questions of the father and his witness from the bench where relevant matters were not pursued by Ms Rodden in her own cross-examination.

   [2] Re F:  Litigant in Person Guidelines (2001) 161 FLR 189

5. The mother professes to seek orders consistent with the status quo enshrined in interim orders whereby [X] live with her and spend time with the father on each second weekend and for half of school holidays. Despite that being her statement as to orders sought, she wavered on many occasions in her evidence and it is clear that her actual position and subjective view is that [X] live with her; that she have sole parental responsibility for [X]; and that he have no relationship whatsoever with the his father.

6. The mother says that she is a victim of family violence and she argues that any reasonable time for [X] with his father will expose him to the dangers of which she herself was a victim. She says that the father suffers from mental health disorders which compound his propensity for family violence.

7. There is no evidence that the mother has re-partnered. She pursues casual employment as a (occupation omitted). She lives at Town 1 in Tasmania. The affidavit material informs me that she is a practising (religion omitted).  The mother says that she continues to use cannabis socially.

8. The mother continues to receive regular counselling in respect of her claimed family violence. Unfortunately, but consistent with a general lack of insight into [X]'s needs demonstrated by this mother throughout her evidence, she has also engaged [X] in the process of counselling with the very same counsellor. My surprise extends to the counsellor believing that she is able to and that it is proper to conduct such counselling? 

9. The mother concedes that she has previously acted unilaterally in respect of [X]’s living arrangements. Specifically, she has over held the child from agreed periods of time with the father resulting in [X] spending some considerable time with no contact with his father. She has also attempted to unilaterally change his schooling. As mentioned above, she has unilaterally engaged him in counselling.

10. The mother gave evidence and responses in cross-examination consistent with her being a victim of family violence. She was at pains to give emphasis accordingly in respect of much of her evidence in cross-examination. She consistently deflected blame onto the father even for her own asserted indiscretions, including her own contributions to the colourful text and Facebook communications between the adults as set out above.

11. The mother was highly emotional throughout her evidence and my observations were of a person unable to objectively consider the best interests of [X] separate from her own perceptions of being a victim of family violence. It is, of course, trite to observe that family violence in any form is abhorrent and it is indeed unfortunate that a great majority of the work of this Court is dominated by issues of family violence. I deal with the mother's allegations of family violence and her responses in more detail below.

12. The father, Mr Craddock, proposes an order whereby [X] live primarily with him but spend five days each fortnight during school term with the mother and school holidays be shared equally between them. He suffers his own no difficulties. He concedes that he has received a diagnosis of Bi-polar disorder.  The material in his own, and in the mother's affidavit, suggest that the symptoms of his condition can at times be severe. He professes to be compliant with medication and hence his condition is stable. The mother does not accept this assertion. He adduced evidence from his general practitioner to the effect that he attends on that doctor three or four times per month and the general practitioner’s observations are of a man compliant with his medication.

13. The father argues that he can provide a home and environment for [X] which is more supportive of the child having an ongoing relationship with both parents. He says that, despite the profound personal difficulties both historically and current between himself and the mother, he will continue to support [X]'s relationship with Ms Rodden.

14. The father is unemployed. He is in a relationship with Ms S who is the author of the first of text message phrases set out above and which was directed from Ms S to the mother. The father, himself previously prolific in his messaging, says that he now is embarrassed by such behaviour and realises its negative impact on [X] and that his texting has ceased. He says that he has also encouraged Ms S to direct her literary ambitions elsewhere.

15. The father, like the mother is a practising (religion). He did, but no longer uses cannabis. My observations and the affidavit material suggests that they have little else in common. Ms S is apparently agnostic in respect of these religious pursuits.

16. [X] has a number of siblings and other relevant children which one might ordinarily think to be beneficial in his life. Sadly for [X] this is not so. The mother has a daughter, [A]. She is 14 years of age. [A] has lived with the maternal grandparents since 2012. An explanation for this situation might be forthcoming from [91] of the mother's affidavit where she says:

    Mr Craddock once stated to me in mid 2015 that he didn't want to have to hit [A] if I couldn’t make her behave because if he had to hit her, he would probably kill her. It was not long after this that final arrangements were made for [A] to live full time with my parents.

17. What does not appear in the mother's affidavit is what is now known from police files subpoenaed to the Court being that on 22 July 2012:

    At approximately 7.00 p.m. on the 22/7/2012 Ms Rodden attended the Police Station with her eight-year-old daughter, [A] (sic). Ms Rodden was crying, shaking and visibly distraught. She immediately demanded police take her child into foster care.

    Ms Rodden went on to explain that [A] (sic) has ongoing behavioural issues and she and her partner (MR CRADDOCK) are no longer able to cope.

    Ms Rodden stated to police that she was going to bash [A]’s (sic) head in and that if [A] (sic) was not taken off her she would likely end up killing her.

    [A] (sic) was visibly upset and stood silently for most of Ms Rodden's explanation.

    … Ms Rodden seemed extremely exasperated by the situation. She was angry and was openly infrequently blaming [A] (sic) for causing all the tension in the house and said repeatedly to [A] (sic) “you’re going to cause me to have to get divorced” and “you are causing all of the problems” and “it is all your fault”. Ms Rodden also refer to [A] (sic) as a “Fucking little bitch” loudly and in and in direct presence of [A] (sic) while standing in the police enquiries office.

18. Not surprisingly, Ms Rodden in this Court deflected blame on to Mr Craddock for this sad state of affairs. Importantly, in cross- examination, Ms Rodden claimed that in 2012 she was ordinarily stable in her stress and anxiety condition except for the particular day of 22 July. Strikingly, however, she now claims to consistently suffer from relatively severe stress and anxiety. She maintains, however, that these conditions will not impact on her ability to care primarily (or full-time) for [X]. The implication of Ms Rodden's evidence was to blame the father for both the situation of 22 July 2012 and for her now entrenched anxiety and stress conditions. [A] remains living with her grandparents almost six years after of this event. I understand, however, that she enjoys some time with the mother and [X].

19. The father also has an older child being Mr J (aged 20 years). Mr J lives in Queensland with his mother and has had little or no contact with Mr Craddock for some time. His inclination is to blame Ms Rodden for this situation in respect of some vague allegation of improper sexual activity on the part of Mr J. There is no evidence that these allegations were progressed to any prosecution or even forensic investigation. Nevertheless, the result has apparently been estrangement for the father and [X] from Mr J.

20. Ms S also has two children aged 7 and 11 years. She has virtually no time with those children but blames her ex-partner for ‘not facilitating any time'. Her evidence in Court is that she is pursuing a relationship with her two boys.

21. Against this factual and social background, the Court is now required to consider the parenting arrangements for [X]. It is proper to emphasise that section 60CA of the Family Law Act 1975 (‘the Act’) provides that in making parenting orders, the Court is to have the child's best interests as its paramount consideration. Despite the parties being made aware of this fundamental rationale of the Courts consideration, and not unusually in such matters, I gleaned the distinct impression that [X]'s best interests at times suffer in priority to the parties using this trial as yet another forum in which to articulate their personal animosities. Indeed, the cross-examination by the mother of Ms S was pronounced and transparent in this respect.

22. Each of the parties gave evidence and was cross-examined. As mentioned above, the mother’s evidence was highlighted by her emotion and her propensity to emphasise that she is a victim of family violence. The father was marginally a more objective witness. He was able to admit his failings in respect of his criticisms of the mother on various media. He was able to acknowledge a fundamental need of [X] to have a relationship with the mother and that [X] wanted a relationship with his mother. He was generally responsive in the difficult circumstances of cross-examination by his former partner. He was, however, at all times calm and courteous towards Ms Rodden.

23. Ms S was aggressive in her responses to Ms Rodden's cross-examination but understandable to a degree given the acerbic relationship between the two women. It is difficult to understand now that these three adults shared a residence for a period of some weeks or months prior to the separation of Ms Rodden and Mr Craddock or, perhaps, this fact gives some explanation? 

24. The father adduced evidence from his GP Dr E. Unfortunately, Dr E elected to give his evidence by telephone which was problematic given that English is clearly not his first language. He is a general practitioner and was asked many questions of a psychiatric nature by Ms Rodden. Generally, Dr E’s evidence was of little assistance. The mother maintains subjective concerns that the father does not strictly comply with his medications as prescribed. Dr E confirmed frequent consultations with Mr Craddock without any indication that he is not compliant with his medication.

25. The Court had the benefit of a very comprehensive and insightful Family Report prepared by Family Consultant Ms S and dated 5 April 2018. Ms S gave evidence and was cross-examined and elaborated helpfully on many of the matters set out in her report.

26. Ms S made the following recommendations in her report at [88] – [90]:

    88. It is recommended that Ms Rodden and Mr Craddock have shared parental responsibility for [X].

    89.  It is recommended that [X] spend significant and meaningful time in his father’s and mother’s care (at least five nights per fortnight with the non-primary parent) including during the school week, weekend time and during all school holidays.

    90.  It is recommended that Ms Rodden be ordered to complete the Relationships Australia parenting when separated course she commenced but failed to complete.

27. In her evidence in Court, I explored with Ms S the possibility and suitability of a regime of 'parallel parenting' for [X] with his parents and in light of her recommendations that the child spend 'substantial and significant time’ between his parents but without any commitment to who should be the primary parent. Fundamentally, Ms S saw the benefits of a parallel parenting regime where [X] was unable or unwilling to articulate any preference between his parents but where he most obviously was desirous of having a relationship with each of them and, surprisingly, is observed to have an established and attached relationship with each of the parents. Ms S agreed that there would be a benefit for [X] in a shared time arrangement between his parents on a parallel parenting basis in that he would not to be confronted with either of his parents being 'more important' by reason of quantity of time in his life. Ms S also observed, however, the difficulties in transitioning between two fundamentally different home structures and two suspicious and critical home environments.

28. The parents reporting to Ms S was essentially consistent with their affidavit material and their evidence in Court. At [38] Ms Rodden is reported as follows:

    Despite saying “[X] probably does enjoy seeing father,” Ms Rodden considers that [X] has continued to suffer by seeing his father every second weekend and said that [X]’s current behavioural problems at school are a direct result of the time he spends with his father.

29. And at [77] appears the following:

    Ms Rodden acknowledged that it was likely that [X] would say that he enjoyed spending time with his father and may like to spend more time in his care. She stated “[X] would probably say he enjoys being with his father but he does not know what is best for him.” On receiving feedback that [X] did display an enjoyment of his father and possibly desired to spend more time with him, she responded “I don’t agree with that…you don’t know the history of the 10 year relationship…”

30. At [78] Ms S opines in respect of the mother:

    It is considered Ms Rodden has not been and is not currently being child focused in her desire to cease time, or not consent to more time, between [X] and his father. Her main reason for this position appears not to be [X]’s wishes or what he may indicate to her and others, but more the ongoing acrimony between her and Mr Craddock, Mr Craddock’s mental health status and the alleged family violence that has occurred between them.

31. Ms S comments on her observations of Mr Craddock at [79] as follows:

    Whilst Mr Craddock presented as anxious during this assessment, he appeared well controlled in his psychological health; consistent with a person who is suffering mental health issues regularly taking their medication. He related to the writer, [X] and to others in a manner consistent with someone who is mentally healthy.

1. Ms S had the benefit of observing [X] with each of his parents. At [68] she reports:

   It was observed that [X] appeared reliant and emotionally dependant on his mother; asking her often to assist him to put pieces together, and waiting for her to decide what should happen next. Ms Rodden seemed at times a little stilted and studied in her behaviours and responses. For example she used a flat, monotonal voice for the duration of the observation, but also performed sharp, unexpected actions from time to time. In response [X] also used a quiet subdued voice but would flare up easily, at one stage declaring “you’re the one that confuses me!” This type of mother/child interaction can be indicative of a role reversal; where the child is leading the interaction and the parent is left following behind the child’s direction. When this occurs, it is not uncommon for the child to somewhat paradoxically show signs of emotional neediness.

2. At [72] and in respect of her observations with the father, Ms S reports:

   [X] was observed to be louder in voice and more dynamic in behaviour when observed with his father. He was responsive to his father’s suggestions and he participated in what his father was also doing, making suggestions and improving on what was being done. He was heard to say “that’s looking really good Daddy.” Mr Craddock was observed to ask [X] relevant questions about his life and what he had been doing which [X] seemed happy to respond to…

   When it was time to leave the observation session [X] declared “I don’t want to go,” and “I don’t want to pack up.” He was responsive to his father’s insistence that they pack up the Lego together. The impression was formed that [X] does not often do what he does not like to do. Mr Craddock however appeared to persevere with [X], and was eventually able to convince him to comply with his parental requests.

3. Ms S concluded at [83]:

   It is likely that [X] would significantly benefit from having the parenting arrangements settled. [X] demonstrated a significant relationship with his father and displayed a degree of excitement and pleasure in his father’s and Ms S’s company. It is possible that [X]’s current aberrant behaviours are as a result of not spending enough time in the care of his father. Both Ms Rodden and Mr Craddock reported that [X] enjoys spending time with his father and has asked to spend more time with him. [X]’s behaviour could be borne out of frustration, and may settle if he is able to spend more time in his father’s care, and could even escalate if he were to spend less time in the care of his father.

Relevant Law

1. Following from section 60CA of the Act, the Court is to reference the probative evidence and the parties’ proposals to the relevant considerations under section 60CC(2) and (3) of the Act in order to determine, on balance, the child's best interests in his parenting and living arrangements. Those best interests are also determinative of the question of parental responsibility where the Court is satisfied that the presumption pursuant to section 61DA of the Act does not apply by reason of the various instances and types of family violence alluded to above.

Section 60CC factors

Section 60CC (2) – the benefit to the child of having a meaningful relationship with each of his parents

1. The Family Reporter describes [X] as having an established and relatively successful relationship with each of his parents. This is surprising given the high level of an entrenched conflict, suspicion, criticism and animosity between those parents. This is perhaps a statement as to the robustness and maturity of this child relative to his mother and father. The Family Reporter is unambiguous in her recommendation that [X] be able to explore and flourish his relationships with each of his parents.

Section 60CC (2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. This consideration is at the crux of the mother’s case for the orders that she seeks and, indeed, for the orders that she prefers which would be that [X] has no relationship whatsoever with his father. As mentioned above, the mother was at pains to emphasise herself as a victim of family violence be it physical, emotional, verbal, financial and/or coercive at the hands of the father. She certainly indicated no fault herself in this respect and deflected blame to the father if any such suggestion was put to her. The mother engages in counselling with Catholic Care and has apparently done so for some time. Without having heard from that counsellor, the strongest indications are that the mother’s views of herself are as a victim and are firmly entrenched and that she is still very much dealing with the fear and pain she perceives accordingly. She says that she fears that the father will move to inflict violence of various types on [X] in the same way as he did on the mother herself. Having not heard from her counsellor, either directly or by written report, I am unable to determine what, if any, success has eventuated from this process of personal counselling. My observations, however, were of a woman, at times, unable to differentiate objective empirical reality from her perceptions as honestly as they may be held.

2. The father concedes one instance of physical violence on the mother. This occurred in 2012. It was dealt with by a plea of guilty in the State Courts. He did not attempt in this Court to deny his culpability or to mitigate from his responsibility. He expressed remorse. Further, he agrees that he has participated in the cycle of bitter and vitriolic, and sometimes vile, text and other media communications with the mother. He again acknowledged his culpability in this regard and confessed to obtaining requisite insight so that his behaviour has ceased. He acknowledged the impropriety of Ms S in these cyber communications and says that he has impressed upon her to cease such behaviour. My observations of Ms S in the witness box are that the father may need to work harder on his partner given the palpable bitterness between the two women in this Court.

3. Ms Rodden has herself engaged in improper media communications. Unlike the father, she would acknowledge no responsibility but readily deflected all blame to him and/or Ms S. She raised connections of family violence almost to the state of obsession and to a point where even in her final address she was directly and pointedly critical of Family Courts in our alleged lack of responses to the genre of female family violence victims. Certainly, I have no doubt that her own subjective views as a victim of family violence are entrenched and significantly influenced every aspect of how she conducted this case and her views generally as to the parenting of [X] which border on 'parenting as of right'. Objectively, however, it appears that she has indeed been the victim of family violence. I accept that there was one instance of physical abuse mentioned above and emanating from 2012. Neither her affidavit nor her evidence in Court particularised any other instances of physical violence. The greater remainder of the alleged violence seems to have taken the form of text-messaging. The mother has made numerous complaints to Tasmania police seeking that the father be dealt with for breach of restraint orders. The police files are before this Court and adequately summarised in the Family Report by Ms S from the her own analysis as follows:

   81.An analysis of the subpoenaed Police documents reveals:

   ·The current FVO dated 4 August 2017 was made by a Magistrate when Mr Craddock was not present. It appears in July 2017, Ms Rodden applied for a FVO through her lawyers, after Mr Craddock “abused her via text message and attempted to withhold [X] from her after she refused to give him money.”

   ·It was recorded on FVMS dated 8 August 2017 that police considered Ms Rodden “contacted police to be vindictive and to get him [Mr Craddock] arrested when no offences had been committed…Ms Rodden did not make any allegation of physical abuse and there were no visible signs of injury to her.”   

   ·On 29 May 2017 it is recorded that Ms Rodden attended the Town 1 Police Station in relation to her then recent separation.  She is said to have stated that she had been receiving numerous abusive and threatening text messages from Mr Craddock. The police report records that after viewing these texts, apart from seeing the word “slutguts” they “did not observe any other threatening or abusive messages.” The police record that whilst Ms Rodden “continually stated that Mr Craddock (Mr Craddock) was threatening her” she could “not clarify or give a strong or full version of events.” The police concluded that “there was no evidence of threatening behaviour on the phone.”   They stated that they gave Ms Rodden advice regarding applying for a FVO through the Launceston Magistrates Court. They concluded that “there is a possibility that Ms Rodden’s intentions are vindictive and she is attempting to get Mr Craddock in trouble”

   ·Comments made by Police in their IDM reports indicate that they also did not initially consider the text messages which Mr Craddock was eventually charged with as a breaches, to be family violence.

   ·A report dated 19 September 2017 stated, that after viewing numerous text messages, “There were no threatening or abusive text messages…it was ascertained that the text messages do not constitute a breach of the order and there was no escalation in the text messages which would require police to immediately intervene.”    

   ·It was later stated by Police on 25 September 2017 that “the text messages are in breach of   the current order in that they discuss legal matters not directly relating to the children.” 

   ·It was further recorded in an IDM Report dated 27 September 2017 that Ms Rodden “appears to be bitter towards the offender (Mr Craddock) and has indicated to the attending officer that she believes his arrest will assist her in family law and custody dispute before the Court.”

4. Ms S concludes in respect of family violence at [82] as follows:

   Given the history of the family violence between Mr Craddock and Ms Rodden, as outlined in the subpoenaed material, it is considered that family violence issues should not be seen to be an impediment to meaningful and significant time between [X] and his father, and that Ms Rodden may be motivated in her claims of family violence to prevent [X] from spending more time with his father.

5. I had the advantage of seeing and hearing Ms Rodden give her evidence in Court and cross-examine both the father and Ms S. I have no doubt that she has been the 'victim' of some family violence and it is this particularised above. I am not persuaded, however, as to the veracity of her reliance on family violence as the very indicator of the orders that she seeks in this Court. I am unable to conclude as to whether or not this mother has achieved a state of subjective belief in herself as a victim and the father is a perpetrator to the extent that she says or, alternatively, that she vindictively uses some instances of 'family violence' within the broad definition in the Family Law Act to pursue an application where by (on her preference) she argues that [X] have no relationship whatsoever with his father. To give her the benefit of the doubt in this conundrum, I expect that her continued counselling has served to at least entrench her subjective views. In summary, therefore, I am able to conclude that there have been instances of the family violence including at least one instance of physical violence perpetrated by Mr Craddock on the mother. In the broader sense of 'family violence', I am easily able to conclude that Ms Rodden has participated herself as indeed has the father and Ms S. I have little doubt that [X] has been the exposed to vitriol between the adults and I am again surprised that he has been able to maintain a successful relationship with each of his parents but equally I am unsurprised by the dysfunctional behaviour that he showed to the Family Reporter and apparently at his school.

Section 60CC(2)(a) - any views expressed by the child and the maturity and rationality of those views.

1. Notably, [X] was reluctant to express any views and preferences to the Family Consultant as to his living and parenting arrangements. His behaviour in the observations of him, however, assisted the Family Reporter in the comments set out above. Suffice to say that I am satisfied that [X] desires to have a relationship with each of his parents but I expect that he would much rather these be relationships unaccompanied by the manifest conflict between them.

Section 60CC(3)(b) - the nature of the relationship of [X] with each of his parents.

1. The Family Consultant observed different parenting styles of the mother and the father. Ordinarily, [X] might benefit from a breadth of parenting styles. When, however, this breadth is accompanied by conflict and criticism then the benefit is diminished. The mother could find nothing complimentary to offer in respect of Mr Craddock’s parenting.  To the contrary, the father was able to be objectively positive and complimentary in respect of the mother and her relationship with [X]. The mother, of course, says that the father is insincere in both his apologies and his compliments of her. She may well be right but her view will nonetheless remain suspicious.

2. Unfortunately, the lack of communication and the entrenched suspicion and mutual criticism between these parents is not conducive of any optimism towards a co-operative parenting relationship. At best, therefore, [X] may need to move between his parent’s homes on a parallel parenting basis. The experts, however, suggest that in some circumstances children are able to adapt successfully. The indications of [X], at just seven years of age, are that he has been able to negotiate these difficulties between his parents thus far whereas the parents themselves have failed miserably.

Section 60CC(3)(c) - the extent to which [X]’s parents have taken, or failed to take the opportunity to participate in making decisions about long-term issues in respect of [X] and to spend time and communicate with [X]

1. These parties do not communicate except to abuse each other.  They have each acted unilaterally at times in respect of [X]. It can only be hoped that the insightful comments in the Family Report and the confronting nature of these proceedings may well ignite some cognizance towards the objectivity in these two parents.

Section 60CC(3)(d) – the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his parents

1. The mother’s preferred model (although she seeks orders otherwise) is that [X] have no relationship with his father. She professed this at various times during her evidence only to return, unconvincingly, to a proposal whereby there be fortnightly weekend time for [X] with his father. It seems, therefore, that the mother has been completely oblivious to the direct observations and reporting of Ms S in the Family Report that [X] wants, enjoys and needs a relationship with his father. Further, there was no retreat by Ms Rodden in this respect during these proceedings and, again, she blatantly concedes that the orders that she asks the Court to make are not her preferred ones. The lack of perspicacity of this mother into the needs of her child is profound and palpable and it seems an irresistible conclusion that she has allowed her own obsessions with historical family violence accompanied by more recent improper text messaging to completely overshadow any impartiality or detachment into the best interests of her son.

Section 60CC(3)(e) – the practical difficulty and expense of the child spending time with and communicating with a parent

1. The parties live in relative close proximity. They have been able to organise changeovers for the interim orders. There are no ongoing practical difficulties.

Section 60CC(3)(f) – the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs

1. Each of these parents has at times acted as the sole carer for [X] if only by unilaterally retaining him from time with the other parent. Although neither is in completely desirable personal circumstances, I expect that they can each provide adequately for [X]’s physical needs. Suffice to say that the relationships between the adults being exposed on various social media demonstrates a general lack of capacity to attend to [X]’s emotional needs. As mentioned above, Mr Craddock professes to have gained some perception into these issues. The same is not forthcoming from Ms Rodden. At [86] of the Family Report, Ms S opines:

   Some concern is expressed regarding Ms Rodden’s fixed and determined presentation regarding her non-support for [X] spending time with his father. It is possible that regardless of Court Orders she will not comply or arrange matters so that Mr Craddock is once more placed in a legally vulnerable position. Her lack of completion of the Relationships Australia parenting course, because she no longer desired to co-parent with Mr Craddock, is possibly indicative of her lack of interest in promoting and supporting Mr Craddock’s role in [X]’s life.

2. The question of Ms Rodden’s breach of an interim order that she complete a parenting course was tested in cross-examination. She appeared completely empowered with self-justification saying that she was not enamoured with the particular course and did not feel that she had the need to complete it with the implication being that any such course was devoid of benefit to her as someone who did not anticipate or desire any regime of co-parenting. As such, this is an indictment in respect of her understanding of and respect for Court orders and a more general statement in her apparent belief that she be entitled to 'parent as of right' to the exclusion of Mr Craddock and without regard to Court orders. My observations of her in the witness box up to and including the above statements made by her in final submissions in respect of this country’s Family Courts suggest that she has not yet gained any sageness or respect for either this Court or [X]’s father. As such, I maintain serious misgivings as to the ability of Ms Rodden to attend to [X]’s emotional needs. 

Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and either of the child's parents

1. Not relevant.

Section 60CC(3)(h) – if the child is an aboriginal or Torres strait Islander

1. Not relevant.

Section 60CC(3)(i) – the attitude to the child, and responsibilities of parenthood, demonstrated by each of the child's parents

1. Each of these parents are culpable historically in respect of their self-centred attitude to the parenting of this young boy. They have each acted unilaterally without regard to the child's best interests. I am persuaded that Mr Craddock has gained some appreciation in this regard. I am not so persuaded in respect of the mother. She is entitled and empowered in her belief that she has a right as a parent. I have little doubt that she does not understand or wish to understand that in this Court the focus of rights rest primarily with the child. She has acted unilaterally in a number of respects and without remorse. She simply fails or refuses to understand that she has in any way endangered the emotional welfare of this child. The fact that she unilaterally exposes her child to counselling, without Court Order or consent of the father, by her own personal counsellor with whom she engages in respect of her asserted family violence issues is an extraordinary example of her lack of judgment, her self-interest, or both.

Section 60CC(3)(j) – any family violence involving the child or a member of the child's family

1. These matters have been dealt with in detail above.  The mother has obtained numerous family violence orders against the father. They are dealt with in detail in the police files as analysed in the Family Report by Ms S.

Section 60CC(3)(l) - whether it be preferable to make orders it would be least likely to lead to the institution of further proceedings in relation to the child

1. As indicated to the mother during this trial, the Court is not so presumptuous that it expects parents to like or agree with our Court orders.  We do, however, expect adherence to Court orders and given her previous propensity to disregard such orders, suffice to say that further breach will inevitably and unfortunately result in further litigation in respect of [X]. I can only say that any such litigation is prima facie contrary to his best interests. It is now incumbent upon these parents to move forward and armed with the Court orders so as to positively parent their child through his remaining childhood and his adolescence and imperative that they immediately cease this war of attrition waged across social and private media.

Findings and Conclusions

1. It is proper to note that the course of the evidence caused me to be extremely concerned as to the behavioural problems exhibited by [X] at his school together with the emotional and social distress observed in [X] by the Family Reporter.  I have little doubt that the caustic and dysfunctional relationship between his parents with Ms S siding with the father is a major contributor to this child’s upset.  As such, I determined, with the consent of the parties to immediately pronounce my orders and to give some short reasons but to immediately adjourn to my Chambers to prepare comprehensive and considered reasons with a view to this mother and this father assimilating the content and findings in these reasons together with the transparent and disturbing observations of Ms S in order to assist them to more adequately and insightfully parent their young son into the future.  As such, I have already pronounced orders are as follows:

   a)That the parents will have equal shared parental responsibility for [X];

   b)That [X] will live in an equal time relationship between his parents on a week about basis with time for special days to be agreed between the parents;

   c)A prohibition on denigration of the other parent per se and directly or indirectly to or in the presence of [X]; and

   d)An order that the father maintains his professional relationship with his general practitioner and complies with his medication in respect of his Bi-polar diagnosis.

2. I am able to find that [X] has a relatively attached and successful relationship with each of his parents. I repeat that this is despite, not because of, the standard of parenting afforded him thus far.

3. I am satisfied that the mother does not encourage [X]'s relationship with the father. She is manifestly opposed to that relationship continuing or having any belief in any benefit to [X] whatsoever. I am satisfied that the mother’s position in this regard is formulated out of self-interest rather than any objective consideration of [X]'s best interests. In this respect, I maintain concerns as to the mother’s willingness to adhere to any Court orders with which she does not agree. The conundrum here is that [X] is, according to Ms S, “reliant and emotionally dependent” upon his mother. The option of thereby completely ceasing [X]’s relationship with one or other of the parents altogether is not one that could be in his best interests – although one that was superficially attractive if only to save this young boy from the inevitable traumas of transitions.

4. I am satisfied that the mother has utilised her own unfortunate history and issues with family violence to an extent that she has lost all objectivity in respect of her child's best interests. This is not to say that the Court does not have respect for the mother herself and it is hopefully to her benefit that she is receiving assistance to deal with the these personal issues. Nevertheless, the analysis of the police files exposed by the Family Reporter and my own observations of the mother in Court were of an almost obsessive reliance upon family violence as the determining factor in respect of this child's relationships and best interests. As a number of Full Courts have confirmed, no one factor under section 60CC(2) and (3) of the Act is determinative of a child's best interests. Rather, it is proper to attribute weight to each of those factors in a balancing process towards the construction of orders that are in a child's best interests. I am mindful of the amendments to the legislation which require judges to place 'greater weight' on matters of family violence. I believe that I have attributed appropriate weight to the issues of family violence but only within the context of the other considerations and the child's best interests generally.

5. I have determined that there should be an order for the parents to have equal shared parental responsibility for [X]. In this respect, I adopt the recommendations of the Family Reporter. I note that the father himself proposes an order for equal shared parental responsibility. Undoubtedly, I harbour concerns in respect of the mother’s willingness and ability to discharge these responsibilities. Nevertheless, I remain of the view that [X] would benefit by his parents being able to compartmentalise their own residual dispute and act with some basic communication and co-operation in respect of his needs. Consequently, it is now incumbent upon the parents themselves to move forward in this regard. I gleaned some confidence in that they have been able to successfully negotiate the interim orders now for a lengthy period. Further, there is no doubt as to the commitment of each of the parents to the best interests of [X] albeit that the mother’s view has the father playing no role in [X]’s. Put simply, however, [X] looks to his mother for support and guidance and both the father and the child want Mr Craddock to participate in this respect. Consequently, to allow the mother sole parental responsibility would be to licence her to practically exclude Mr Craddock from [X]’s life. To give sole parental responsibility to the father would go against a situation where [X] understands his mother to be that support person for him.

6. I have considered the Family Reporter’s views as to significant and substantial time on a “nine-five” day basis for [X] and whether he would benefit from spending greater time with his father as indicated in Ms S’s evidence in Court to the stage of Mr Craddock being the primary parent. I have decided against such a regime and prefer an equal time regime. I maintain concerns that [X] not be put in a position where he is informed or himself infers that one or other of his parents is better or more important than the other. I am satisfied that these parents need the same level of skills, commitment and facilities to parent [X] be it on five, seven or nine days per fortnight. I am anxious that each of the parents be given equal opportunity to discharge their responsibilities and maximise their relationship with [X] even if it be on a “parallel” basis rather than on the preferred co-operative model. Each of these parents is (religion omitted). The father says that he is willing to allocate festival days to the mother. The father presented as altruistic in this regard and I am hopeful that the parties can negotiate time accordingly for special days.

7. I make an order in respect of the father’s compliance with his doctor’s directions so as to give the mother some confidence in this respect where she cross-examined the father and the doctor with obvious suspicion as to the father's compliance with his medications. I note, however, in this regard the positive evidence of the general practitioner and the observations of Ms S.

8. I am satisfied generally as to the capacity of these parents to attend to [X]’s physical needs. I maintain real concerns as to the mother’s ability to attend to his emotional needs and particularly in respect of [X]'s need to have a relationship with his father. I am hopeful that these reasons and the evidence in the trial, particularly of the Family Consultant, will assist the mother with this insight.

9. I intend to make a further order that neither party take [X] to any counsellor, psychologist, behavioural or social scientists without the express written consent of the other party and, in particular, that [X] not continue with counselling with the practitioner assisting the mother with her own counselling.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 7 June 2018