Rodway and Rodway
[2012] FMCAfam 903
•7 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RODWAY & RODWAY | [2012] FMCAfam 903 |
| FAMILY LAW – Parenting – father proposes equal time – mother proposes substantial and significant time – family violence in past – inability to communicate – low trust and high conflict between parents. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| MRR v GR [2010] HCA 4 |
| Applicant: | MR RODWAY |
| Respondent: | MS RODWAY |
| File Number: | SYC 2322 of 2011 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 14 & 15 August 2012 |
| Date of Last Submission: | 15 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blackah |
| Solicitors for the Applicant: | Biddulph & Salenger |
| Counsel for the Respondent: | Ms Kennedy |
| Solicitors for the Respondent: | Watson & Watson Solicitors |
ORDERS
The children [X], born [in] 2004 (“[X]”) and [Y], born [in] 1996 (“[Y]”) (“the children”) live with the Respondent Mother.
The parents are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of the children.
The child [X] spend time with the Father as follows:
(a)In week one, each alternate Friday from after school, to the following Monday before school;
(b)In week two, each alternate Wednesday from after school, to the following Thursday before school;
(c)For half of the school holidays from the conclusion of terms one, two, three and four (Christmas period) of the NSW school calendar at times as agreed between the parties. In the absence of agreement in relation to half of the school holiday periods with the Father for the second half in even numbered years and the first half in odd numbered years and the Mother is to spend the second half of the school holidays with [X] in odd numbered years and the first half with [X] in even numbered years;
(d)Each alternate Christmas commencing 2012 from 9am on Christmas Eve until 2pm Christmas Day and in the alternate year from 2pm Christmas Day until 6pm Boxing Day;
(e)Each alternate Easter holiday commencing 2013 from 6pm Easter Sunday until 6pm Easter Monday and in the alternate year from 9am on Easter Saturday to 6pm on Easter Sunday;
(f)On [X]’s birthday, the parents shall make such arrangements as are necessary to ensure that [X] spend not less than 2 hours on that day with the other parent, and unless otherwise agreed those 2 hours shall be from 4:30pm until 6:30pm;
(g)On Fathers’ Day between 9am and 6pm each year and in the event that Mothers’ Day falls on a weekend when [X] is spending time with the Father, the Father’s time with [X] be suspended between 9am and 6pm.
Changeovers are to occur at the school, but where this is not possible they will occur at the Mother’s residence, provided that the Father does not enter the Mother’s house and the Mother does not exit the house at the time of the changeover.
That each party shall give all necessary consents in writing to [X]’s school to forward to the other parent copies of all school reports and notices in relation to parent/teacher interviews, school photographs, concert nights, award presentations, open days, speech nights and sporting events.
That the parties shall forthwith do all things and sign all documents to authorize and direct the child’s medical practitioners or other health professionals to communicate with and provide information to the other parent at their request.
That each party inform the other as soon as practicable in the event that the child suffers any serious injury or illness whilst the child is in the other party’s respective care.
That the parties keep the other advised of their contact telephone numbers and addresses and shall notify the other party within 14 days of any change of either their telephone number or address details.
Neither party will remove the child from the Commonwealth of Australia without the other party’s written consent.
Should either party intend to travel outside the Commonwealth of Australia with the child, they are to provide the other party at least 28 days notice prior to departure:
(a)A copy of return air tickets;
(b)A detailed itinerary, including a contact telephone number and address for wherever the child is staying while away;
(c)Such travel shall only occur during the school holidays.
IT IS NOTED that publication of this judgment under the pseudonym Rodway & Rodway is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2322 of 2011
| MR RODWAY |
Applicant
And
| MS RODWAY |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about [X], born [in] 2004. [X] is currently seven years old and lives primarily with her mother, but spends substantial and significant time with her father, four nights each fortnight, pursuant to orders made on an interim basis on 23 August 2011. The applicant in this case is [X]’s father. He is 49 years old and describes himself as a [occupation omitted]. The respondent in these proceedings is [X]’s mother. She is 45 years old and describes herself as a [occupation omitted].
Both parents and [X] live in suburbs on Sydney’s northern beaches. The main issue to be decided is how much time [X] spends with each of her parents. Her father would like an order for equal time phased in over time, but her mother’s preference is for the existing interim order to be made final so that [X] would spend four nights out of 14 with her father, as well as half of each school holiday period.
Background
The father was born in Australia and is of Croatian heritage. The mother was born in Lebanon and came to Australia when she was 26 year’s old. The mother has a child from another relationship, [Y], who is 16 years old. [Y] appears to have been an important part of the family consisting of the parents and [X]. Indeed, [Y] was seven years old when the parents in this case married, and [Y] has been an important part of [X]’s life. All of the evidence indicates that [Y] and [X] have a close relationship. By the time of closing submissions in this case, the father had indicated that he was seeking no orders in relation to [Y]. This was a difficult decision for him to make but, in all the circumstances, it was the appropriate decision to make.
Whether one has regard to the evidence of the mother, or the father, theirs was a difficult relationship. There were frequent arguments, which both parents conceded could be quite intense. The mother says there was family violence, the father says that this is an exaggeration of what took place. Their first separation took place in 2008 when [X] was not yet four. The father left the home for three months. They attended marriage counselling. The mother fell pregnant to the father but tragically miscarried early in the pregnancy. This grief appears to have added more strain to the relationship. On 10 October 2010 the parents separated on a final basis with the father leaving the family home and moving to the home of his mother, the paternal grandmother, where he still lives.
In the immediate post separation period the frequency and duration of the father’s time with [X] was a significant issue between the parents. By January 2011 he was spending time with [X], by agreement with the mother, every Wednesday afternoon and on Sundays, but during the day only. The father’s frustration about contact resulted in the commencement of the present proceedings in April 2011. His proposal then, and currently, is that there be equal shared parental responsibility for [X] and that [X] spend time with him on a graduated basis increasing eventually to equal time week about. The mother’s response, filed in July 2011, proposed contact each Wednesday afternoon and alternating weekends. On 23 August 2011, after an interim hearing, orders were made for equal shared parental responsibility, for [X] to live with her mother, and spend time with her father each alternate Friday to Monday, and each alternate Wednesday overnight Thursday, as well as half the school holidays. That parenting arrangement continues to date.
The Parties’ Proposals
The father’s proposed final orders are set out in his amended application filed 10 August 2012. He proposed equal shared parental responsibility for [X], the continuation of the current parenting orders until 8 October 2012 (the commencement of school term 4) and then until the commencement of school term 2 2013 [X] spend time with the father each alternate week for five nights from after school Wednesday to before school Monday, and finally from the commencement of term 2 2013 week about from Wednesday to Wednesday. The father’s amended application contains an alternative proposal that would see the implementation of equal time over a longer period. Thus, for all practical purposes, the father was seeking an increase in his time with [X] leading up to equal time as early as 2013, but possibly as late as 2015.
The mother proposed final orders as per her amended response filed 6 August. She seeks orders for equal shared parental responsibility and that [X] spend time with her father each alternate Friday from after school to the following Monday before school, and each alternate Wednesday from after school to the following Thursday before school. In other words the mother seeks the continuation of the existing parenting order. Both parents propose the equal sharing of school holiday periods.
The Evidence
The father relied on his affidavit sworn 31 July 2012 to which was exhibited a substantial quantity of supporting documents. The father’s case also relied on an affidavit of his mother, Mrs R sworn 12 August 2011. The father was also cross-examined on an admission that he made in an earlier affidavit sworn 12 August 2011. Even though this affidavit was not read in his case it was impossible to make sense of the evidence of his admissions in relation to certain matters without having regard to those parts of this affidavit containing those admissions. Both the father, and his mother, gave oral evidence and were cross-examined.
The mother’s evidence consisted of her affidavits filed 12 July 2012, 25 May 2012 and 6 August 2012. She gave evidence and was cross-examined. In addition there was in evidence the Family Consultant Memorandum to Court of 3 August 2011 and 1 September 2011 as well as the Family Report dated 2 July 2012. Ms A was the Family Consultant who prepared each of these documents. She too gave oral evidence and was cross-examined.
The Issues
It would be trite to say that the issue in this case is making an order that is in the best interests of [X]. In reality, however, the issues are more specific. The mother says there is an issue about family violence, and the most appropriate parenting arrangement in view of this. The Family Report indicates that [X] has expressed a certain view, and there is an issue about the weight that should be placed on such view. There is a quite complex issue as to the nature of the relationship that both [Y] and [X] have with each other and their mother, and the extent to which this has an impact on [X]’s relationship with her father. The father asserts that the mother has been unwilling to facilitate and encourage his relationship with [X]. The mother said that the father’s proposed equal shared care arrangement would be a drastic change in [X]’s life and one that would have an adverse impact on her. There is a clear issue in this case about the parents’ inability to communicate and the continued conflict between them which often manifests itself in passive, but seething hostility whenever they come into contact with each other. The father says that the court should accept the evidence given by the Family Consultant and her recommendation, but the mother says that the Family Consultant has not been given all of the relevant information, and in any event has not properly considered the impact of family violence. In this case both parents agreed that an order for equal shared parental responsibility should be made and this means equal time and substantial and significant time must be considered. There is an issue as to whether either type of order is reasonably practicable as defined in the legislation.
The Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) 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 for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
Meaningful Relationship
There can be no doubt on the evidence that [X] enjoys a meaningful relationship with both of her parents. This remains the case despite the concerns that each parent raises about the other, and despite what the father no doubt considers to be the unsatisfactory level of contact and communication that he has had with [X]. On the evidence there is nothing to indicate that [X]’s meaningful relationship with her father, or mother, will be adversely affected if the court were to adopt any of the proposals advanced by [X]’s parents. Meaningful relationship is not an issue in this case. To the extent that it could be said that the Family Consultant raised the possibility that, if the court did not increase [X]’s time with her father there was a risk of her losing her meaningful relationship with the father, that is not the case. On the evidence there is no information which would indicate any reasonable risk to the meaningful relationship that presently exists between [X] and her father.
Protecting [X] from Harm
Section 60CC(2)(b) prescribes as a primary consideration the need to protect [X] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. There is no evidence of abuse or neglect as defined in the Family Law Act. The mother’s case is that there has been family violence as defined in section 4(1) of the Act. That definition is as follows:-
Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Specifically, the mother’s case is that she, and [Y], and to a lesser extent [X], have been exposed to conduct from the father that caused them reasonably to fear for or be apprehensive about their wellbeing and safety. Moreover, it is the mother’s case that the father has minimised this and continues to do so. Furthermore, it is the mother’s case that the Family Consultant failed to adequately understand this behaviour, and thus did not give adequate consideration to it in formulating the recommendations in the report. As it turns out the court accepts this part of the mother’s case for the reasons set out below.
The mother’s evidence contained in her affidavits supports a finding in her favour about family violence. This remains the case even allowing for the exclusion of material that was objected to. There is ample evidence of the father’s conduct that falls within the definition of family violence. The father’s case about family violence is summarised in the Family Report at paragraph 17 where he says, in effect, that the mother’s allegations were a misrepresentation and a significant exaggeration. It is interesting to note that the father did not assert that it simply did not happen. Indeed, as will be seen below, he made some specific admissions about family violence. The point here is that the mother’s evidence about family violence was both detailed and consistent.
The impression formed from all the evidence is, for example, that the mother and the father had different perceptions in relation to violence. What the father seems to have characterised as high conflict, the mother has more accurately described as intimidation. In relation to family violence she was a more credible witness than he was. These findings are not based on the absence of cross-examination by the father’s counsel of each and every allegation made by the mother. That would have been unreasonable and a disproportionate use of court time. Findings about family violence are based on much more than just the mother’s own evidence.
The father’s own evidence contains admissions of family violence. In cross-examination he admitted yelling and screaming at the mother on 27 January 2011 at [C]. He admitted to coming home angry one night in December 2006, and hitting a wall, leaving a mark there. He admitted to an incident in June 2010. Paragraph 146 of the mother’s affidavit of 11 July 2011 is a powerful example of the mother’s evidence in this regard. She deposes:-
During the marriage Mr Rodway often became angry with me in the presence and hearing of the children and I would often burst into tears, start to shake and go down on my knees while he asked me for an apology. I apologised to Mr Rodway often for things that I had not even done, just to stop him. There was no one I could call or talk to about Mr Rodway’s behaviour towards me and I often went to work the next morning, after taking the children to school, miserable and feeling empty and frozen like a zombie. I felt tightness in my chest, nausea and dizziness all day and found it difficult to concentrate on my work. While I was at work, I would often worry about what would happen that night when Mr Rodway came home and I had to cancel appointments and meetings and pretend that I was sick when I became distressed about my situation with Mr Rodway. This led to a decline in my work and income.
In his affidavit of 12 August 2011 the husband replies to this evidence in the following terms:-
I admit that I became angry at times. I deny Ms Rodway had no one talk to. Ms Rodway used to call or speak her sister or friends for lengthy periods. I cannot admit to her state of mind.
The father’s response to this detailed evidence is revealing by its minimalism. Whilst he denies that the mother had no one to talk to, he does not deny that he became angry at times in the presence and hearing of the children, or that the mother would burst into tears, start to shake, and go down on her knees while asking for an apology.
In cross-examination the father admitted to an incident in June 2010 when [Y] was cowering on the sofa with her hands on her chest crying, with the father standing over her, yelling at her.
Paragraph 159 of the mother’s affidavit of 11 July 2011 is another example. The mother deposes:-
In or about September 2010 Mr Rodway did not like the way I spoke to my girlfriend who I have known for years. A few days later Mr Rodway said to me, “you are unreasonable, a liar and a bad person.” He carried on yelling and screaming at me, putting his face close to mine, spitting at me and pointing his finger threatening me. I could not breathe and my arms and legs shook. I said to Mr Rodway, “if you do not stop, I will call the police.”
The husband’s response to this is as follows:-
Admitted as to the conversation but denied as to spitting at
Ms Rodway.The court is entitled to infer that the father does not deny yelling and screaming at the mother, putting his face close to her and pointing his finger in a threatening manner. There is no denial of what could reasonably have been observed by him i.e. that the mother could not breathe, and that her arms and legs shook.
Paragraph 161 of the same affidavit of the mother sets out the impact on her of the family violence she experienced:-
During the marriage I felt like I was constantly walking on eggshells with Mr Rodway and that he was watching every word I said. I constantly had to rehearse what to say to Mr Rodway so as to not send him off. I constantly told the children to be careful so they would not upset Mr Rodway. I cried a lot more than I used to. I repressed my feelings, I gave up interests and did less activities. I let go of opinions, ideas, attitudes, hopes and dreams that I had for myself. I lost weight and I lost motivation. Since separating from Mr Rodway, I have become a happier and more confident person.
The husband’s response to this evidence is:-
I do not know and cannot admit.
Given that he swears to not knowing these matters it must logically follow that the mother could not have been cross-examined in any meaningful way about her evidence. In the absence of concerns about the mother’s credibility, her evidence is accepted.
In cross-examination the father admitted that he would be so upset at times that he would go into the garage. He admitted to yelling at [Y] at other times.
Another source of evidence about family violence is what [Y] told the Family Consultant, both during the child inclusive conference on 1 September 2011, and then during the Family Report interviews. In this regard the Family Consultant records in the memorandum of 1 September 2011:-
[Y] has memories of her parents arguing and of her father being aggressive towards her – screaming, hitting, calling her names, putting her down and scaring her.
At paragraph 36 of the Family Report the Family Consultant records [Y] stating that she does not want to communicate or spend time with her step-father:-
As she perceives him to have been emotionally abusive towards her.
Having regard to all of the evidence, and not just the matters referred to above, there has been family violence as alleged by the mother. This has significant impacts on the weight that would be given to the Family Report, and its recommendations. Ms Kennedy, counsel for the father, put it to the Family Consultant that paragraph 49 of the report contained the assessment of the family violence allegations. Paragraph 49 of the Family Report states as follows:-
The allegations made by Ms Rodway and [Y] concerning
Mr Rodway behaving in an abusing manner toward them lead to some concerns about Mr Rodway’s capacity to resolve conflict and manage his anger. However each parent feels that the other behaved in a controlling manner toward them during the relationship and it would seem that Mr Rodway was often placed in a difficult position in the middle of chronic conflict between his wife and his mother. The manoeuvres for control within the family, particularly with respect to the parenting of [Y] and the involvement of the paternal grandmother, seemed to have led to chronic conflict between the parents that was not managed well, and ultimately led to separation.With great respect to the Family Consultant, and fully understanding that the evidence of the husband’s admissions in relation to violence may not have been specifically drawn to her attention, the formulation is plainly inadequate. It is an understatement to say that the evidence of the family violence raises issues about the father’s capacity to resolve conflict and manage his anger. It is quite artificial, and with respect inappropriate and minimalistic to seek to simply understand the family violence in the relationship as if it were in the context of mutual controlling behaviour, as well as in the broader context of a dispute between the mother and her mother-in-law. There is no evidence of mutual controlling behaviour. There is no evidence to suggest that the mother’s poor relationship with the paternal grandmother is relevant to the father’s violence towards the mother. The family violence assists to explain not just the conflict between the parents, but the mother’s behaviour in the post-separation period, and perhaps indeed continuing, which manifests itself in a conservative view about parenting arrangements.
The Family Consultant conceded in cross-examination by Mr Blackah, counsel for the mother, that family violence normally did contra-indicate shared time, and that the father’s behaviour could in some ways be interpreted as controlling and intimidating. The Family Consultant acknowledged that she was not made specifically aware of the admissions made by the father in his affidavits, and readily observed the similarities between the reports of the father’s behaviour given by both [Y] and her mother. She acknowledged that it was of concern that the father may have been minimising his past behaviour, as well as claiming that the mother’s allegations were exaggerated.
These findings about family violence are significant and cannot be ignored in the context of deciding what is in the best interests of [X] and what parenting arrangement is reasonably practicable for her. There is no risk to [X] of violence perpetrated by her father, but the family violence does provide a context to understand the conflict between [X]’s parents, their inability to cooperate and trust each other, and enormous their communication problems.
The Views Expressed by [X]
The evidence in this regard is contained at paragraph 43 of the Family Report. It was part of the mother’s case that this evidence should be interpreted as an expression by [X] of a desire to retain the existing arrangements. There are two concerns about this assertion. Firstly, when paragraph 43 is studied carefully, it is clear that the Family Consultant was very cautious about the reliability of this expression of views. She explains in the first sentence that [X]’s discussion of this issue “was not always clear and her reasons were not always logical.” In the next sentence the Family Consultant notes that this lack of clarity was “not considered unusual for a child of her age and circumstance.” It would be unfair, therefore, to elevate the evidence at page 43 of the report into a clear statement of views by [X]. The second concern relates to the weight to give to this issue. [X] is only seven years old and it is clear that she is very much aware of the parental conflict. Thus, having regard to her age and developmental stage, as well as the context of the parental conflict, the court is not prepared to attribute any weight to any views that might have been expressed by [X].
Nature of [X]’s Relationships
What is abundantly clear from the evidence is that [X] enjoys a good relationship with her mother, father, and with her step-sister [Y]. To the extent that there is any evidence in the mother’s case which, either directly or indirectly, suggests that [X]’s relationship with her father is not a good one, that is not the case. Despite the parental conflict about [X] the Family Consultant was confident that [X] did not appear to be aware that her parents disagree about how much time she should spend with each of them, and was not aware of their proposals. Despite the intensity of the parental conflict, therefore, the parents have managed to shield [X] from the consequences of this, at least to some extent. Her relationship with both her mother and father is unaffected by this litigation.
It is also very clear from all the evidence that [X] enjoys a very close relationship with her step-sister [Y], despite their age difference. [X] does not know that [Y] does not share the same father as her and one of the difficult issues that these parents will need to navigate in the future is how, precisely, to communicate that information to [X] in a way that does not disrupt the good relationships that she has with everyone at the moment.
In the context of the competing proposals advanced by the parents, [X]’s relationships with [Y] and her parents raise a number of issues. The mother’s case raises concerns about the impact on [X] of an equal time arrangement that would take her away from both her mother and [Y]. This is a legitimate and real concern. At paragraph 42 of the Family Report an insight is provided into [X]’s perspective of time, and how she misses people. [X] was able to acknowledge that the increase in the time she spent with her father in 2011 was a good thing because she had “started missing my dad”. She was conscious of missing not just her mother, and [Y], when away from them, but also her father. There is a concern, therefore, of the impact on [X] of a week long absence from her mother and [Y] on a regular basis, and it is not necessarily the case that this concern is reduced by postponing this to either 2013, or even 2015.
The next issue in terms of [X]’s relationships is found at paragraph 52 of the report. That paragraph is reproduced in its entirety:-
In combination, the presentation and reports of Ms Rodway and [Y], [X]’s report and Mr Rodway’s concerns all suggest the possibility that the close relationships between [X], her mother and her sister may be meeting the needs of Ms Rodway more than those of [X] or [Y]. With this possibility in mind, it will be important for Ms Rodway to distinguish between her own needs, particularly her potential requirement to feel needed by her children, and the needs of her children. [X] most certainly does need her mother and it is not surprising that she misses her mother when separated from her. It is also noted that there may be characteristics of Ms Rodway’s relationship with her children that are influenced by her own family of origin and by her Lebanese culture that might not be fully understood within the limited context of the current assessment. However, these issues are raised as the likely outcomes for [X], particularly with respect to her relationship with her father, will be negatively impacted upon if [X] is not able to individuate from her mother in a developmentally appropriate manner.
Paragraph 52 of the report is a concern by the Family Consultant that [X]’s relationship with both her mother and [Y] are so close that the relationships may in fact be about meeting the mother’s needs rather than [X]’s, and that there may be concern about individuation in a developmentally appropriate manner. In the father’s case this evidence was used to support the proposition that, in fact, the introduction of equal time should be accelerated to reduce the possibility of concerns in relation to [X]’s individuation. In the Family Consultant’s oral evidence, however, she emphasised that there was no evidence of an enmeshed relationship.
The other significant feature of paragraph 52 is its hypothetical and contingent language. The Family Consultant uses the word “possibility” in each of the first two sentences. Other similar language is used in the remaining sentences. It certainly could not be said that the Family Consultant was dogmatic, but rather that she was raising as a possibility that the mother’s relationship with [X] was meeting the mother’s needs more than [X]’s needs. If this was the case, there was a risk of possible future individuation problems.
There is this risk, but it is not a significant one in the circumstances of this case. In assessing the risk referred to at paragraph 52 it may be that the impact on the mother of the father’s family violence, and on [X] of being exposed to it, provides another framework within which to understand the nature of their relationship. On the evidence there is nothing improper in the relationships between the mother and both [Y] and [X] or as between them. As for the possible risk of individuation problems, it must be remembered that even on the mother’s own proposal the father will have more than adequate time with [X] in order to monitor any such difficulties as may arise in this case.
[X] also enjoys a very good relationship with the paternal grandmother, and this is a relationship that benefits her greatly. Even on the mother’s proposal, however, there will be ample opportunity to preserve and build on this relationship.
Wilingness and Ability to Facilitate and Encourage Relationships
The father is clearly concerned about what he considers to be the mother’s lack of willingness, and inability, to facilitate and encourage a close and continuing relationship between the children and himself. His concerns pervade his affidavit and is a major theme in the Family Report. For example, at paragraphs 13, 19 and 20 the Family Consultant reports the father’s concern and, in particular, the pressure that he feels the mother is placing on [Y], and indeed on [X]. The other basis of the father’s concerns appears to be historical i.e. the mother’s resistance to contact in the post-separation period, right up until interim orders for contact were made by me.
The father’s concerns are noted but these concerns are inconsistent with any objective view of the evidence. From the court’s perspective the issue is not so much whether the mother’s resistance to contact in the post-separation period, before the making of an order by this court, evidences anything, but rather whether her actions after the orders have been made are consistent, or inconsistent, with the father’s contention. There are few, if any, complaints about the mother’s compliance with orders since they were made.
The court is not prepared to draw an adverse inference about the mother, in terms of willingness to facilitate [X]’s relationship with her father in the post-separation period. The parental relationship was, and continues to be, a conflicted one. The separation was emotional for both parents, but it appears to have affected the mother, more than the father. There is a history of family violence. All of these factors normalise the mother’s behaviour in the post-separation period. Moreover her actions in abiding with the court order, as well as other factors shortly to be referred to, are all consistent with a willingness to support [X]’s relationship with her father, rather than the contrary proposition.
Moreover, the fact is [X] enjoys a good relationship with her father. That is common ground. That is the evidence of the Family Consultant. There is no evidence whatsoever of any decline in the strength of [X]’s relationship with her father, indeed quite the opposite. This is another fact quite inconsistent with the father’s contention.
Of course, part of the father’s case is that the mother was somehow responsible for his loss of relationship with [Y]. Again, this contention is inconsistent with the facts. The fact is that [Y] has expressed a clear view against having contact and communication with the father because, as she told the Family Consultant at paragraph 36 of the Family Report, “she perceives him to have been emotionally abusive toward her.” Indeed, the evidence suggests that [Y] not only experienced family violence directed towards her, but also towards her mother. One must not also lose sight of the developmental stage at which [Y] finds herself.
To blame the mother somehow for a teenage step-daughter’s rebellion against the major father figure in her life is plainly an unfair depiction of reality. There are a number of factors that contribute to explain the breakdown in the father’s relationship with [Y] none of which unequivocally point to the mother’s intervention. The court does not accept the father’s contention that the break down in his relationship with [Y] somehow evidences the mother’s lack of willingness to support [X]’s relationship with him.
The other interesting, indeed notable feature of this case is that for all practical purposes [X] appears to have been shielded from this litigation, certainly up until the point of the Family Report interviews. The Family Consultant noted that [X] seemed unaware of the dispute between her parents. This too is a fact that is quite inconsistent with the father’s contention. His case as regards this consideration is therefore not accepted.
Likely Effect of Change in Children’s Circumstances
This is not a determinative consideration in this case. In reality, none of the proposals advanced by either parent would create such significant change in [X]’s life as to affect her relationships with the important people around her. Having said that, on the evidence presently before the court [X] clearly does not like spending significant periods of time away from either of her parents, or [Y], all of whom are important figures in her life. On balance, the evidence indicates that an equal time arrangement would lead [X] to miss her mother and step-sister [Y], but it would not be the case that she would miss her father if her mother’s proposal was accepted, because of the frequency of contact. Thus, whilst this is a relevant consideration, it is by no means a determinative one.
Issues of Practical Difficulty and Expense
There are some close parallels between paragraph (e) of section 60CC(3) and section 65DAA(5). Each of these provisions has a slightly different focus. Paragraph (e) of section 60CC(3) focuses on the child’s experience of practical difficulty and expense, whereas the latter provision seems to focus on the parent’s ability to implement arrangements in a reasonably practicable way. The court is satisfied that [X] would not experience, on any proposal before the court, any issues of practical difficulty and expense that will substantially affect her right to maintain personal relations and contact with both parents.
Capacity of Parents to Provide for the Needs of the Children
Whilst in the evidence of both parents each raises relatively minor issues about the other’s parenting capacity, the fact is that [X] enjoys a family constellation that is relatively free of risk for her and where both her parents seem to function reasonably, within their own domains, and provided they do not have too much interaction and contact with each other. There are no concerns on the facts of this case about the capacity of either parent to meet [X]’s emotional and intellectual needs, though both parents need to be aware of the direct and indirect impacts on [X] of unresolved parental conflict, lack of trust, and poor communication.
Maturity, Sex, Lifestyle and Background Factors
There are no such factors on the evidence that would be determinative, having regard to the proposals advanced to the court. [X] is an Australian born girl who will enjoy the benefits of having a mother and father each of whom has a non-English speaking background. Both parents, therefore, have much to offer her in terms of their lifestyle, culture and traditions.
Attitudes to the Child, and to the Responsibilities of Parenthood
The facts of this case indicate a low level of trust between the parents, problematic communication, high conflict, all in the context of a history of family violence. This is a powerful cocktail of factors, indicative of poor attitudes to children, and to irresponsible parenthood. [X] is indeed fortunate that notwithstanding these things, there have been relatively few outbreaks of poor attitude, and irresponsible parenthood, at least in recent times. The father’s family violence is classic irresponsible parenthood in that he was not just perpetrating family violence, but perpetrating a very poor role model for both [X] and [Y].
The inability of parents to be civil to each other at changeover, and silly disputes about trips to Bali are really symptomatic of the parents focusing on their own needs, rather than [X]’s needs. There are signs of a growing maturity on the father’s part which was manifested, for example, by the very difficult decision he made in cross-examination not to pursue orders in relation to [Y]. He was clearly putting her interest, above his own. It is possible that the father’s family violence is a historical matter now, and therefore that issues about being a poor role model for [X] have subsided somewhat. Against this, however, is the clear evidence of the father not accepting responsibility for his family violence in the past, and externalising responsibility. It is disconcerting, for example, that in the Family Report interviews he described the mother as having “behaved in a controlling manner toward him throughout their relationship” when the evidence indicates that he was the intimidating one. This suggests that lack of insight still exists on the father’s part.
Both parents need to understand that the inability to be civil towards each other in the presence of [X], especially at contact changeovers, sends a powerful signal to [X] that is inconsistent with responsible parenthood. The fact is that when one has regard to this consideration, neither parent is a shining example, but the reality is that this affects their ability to implement a parenting arrangement that, by definition, involves high levels of communication and trust between them. It is the father’s proposal which is the more problematic in this regard.
Family Violence
Findings have been made about family violence and its relevance in this case. On the mother’s evidence, this was clearly a disempowering experience for her, as well as a fearful one. [Y] was exposed to the violence, as was [X] but to a lesser extent. The poor role model that the father portrayed, when he was engaging in violence as defined in the legislation has already been noted. The family violence may well provide the most plausible explanation for the lack of trust and inability to communicate between the parents that manifests itself in the present parenting dispute. It is a factor of significance that weighs heavily in the mother’s favour.
Family violence, howsoever manifested, casts a long shadow over this case. The court does not accept the express or implied contention in the father’s case that even if there had been family violence, it did not prevent the mother from asserting her rights and interests in the post-separation period, often in the presence of the father. The evidence is that in the immediate post-separation period the mother was preoccupied about the possibility of reconciliation, a preoccupation which may itself have been the product of her experience of intimidation and disempowerment from the father.
Order Least Likely to Lead to Further Proceedings.
It is not possible to rule out future proceedings between the parents, whatever order the court makes. Indeed, future proceedings between the parents may well be in [X]’s best interest if her circumstances have so changed as to warrant an alteration to parenting orders in circumstances where a parent unreasonably declines to agree to the same. One suspects that as the years go by that [X]’s growing autonomy will be a significant factor in determining the parenting arrangement best suited to her, at that future time. For the time being, and based on all the evidence, the court is not prepared to entertain orders for equal time, even if that order were framed to take place in 2015. The balance of considerations favour maintaining the existing parenting arrangement, as opposed to increasing to equal time, even over a prolonged period. The court is not confident that these parents have the capacity to implement an equal time arrangement whether now, or in the foreseeable future.
Any Other Relevant Fact or Circumstance
One of the risks in this case that is difficult to assess and quantify is the risk that if and when [X] becomes aware that she does not have the same father as [Y], that this could have an impact on her relationship with the father. The Family Consultant considers this a risk. In assessing the risk the Family Consultant suggested that one highly relevant factor was precisely how (i.e. the circumstances in which) [X] was informed of this. The court was impressed by the extent to which both the mother and father seemed to appreciate the significance of this issue and understood the need to obtain appropriate expert assistance in managing the transmission of this information to [X].
They both understood the need for counselling, for example. They both understood the need for the other to be actively involved in the process. This significantly reduces the risks to the relationship between [X] and her father. It is clear that [X] does not know that [Y] has a different father. It is clear that [X] has a good relationship with her father, and is aware that [Y] does not. The court does not accept the father’s contention that the risk to his relationship with [X], in the circumstances aforementioned, is mitigated by giving him more time with [X]. The two propositions simply don’t follow from one another. In reality there appears to be three possibilities in terms of how [X] will react when she discovers that [Y] has a different father. It may not impact on her relationship with the father, at all. Another possibility is that the only impact on her relationship with the father is to strengthen it.
The worst case scenario, of course, is that it creates an alignment with [Y] and the mother that creates pressures on her relationship with the father. How this risk is somehow addressed or mitigated by equal time as proposed by the father is unclear. The Family Consultant, and indeed the parents themselves, agree that the focus must be on adequately managing the transmission to [X] of this information, preferably in a therapeutic context. Whilst there are concerns about the ability of these parents to cooperate and communicate effectively, the evidence they both gave is that they appreciate the significance of this issue and would act appropriately. The court accepts that.
Parental Responsibility, Equal Time, Substantial and Significant Time
The parents in this case agreed that there should be an order for equal shared parental responsibility. The court must therefore consider equal time, or substantial and significant time. The father proposes equal time, either in the short, or medium term. On the evidence the court finds that equal time is neither in [X]’s best interests, nor is it reasonably practicable. On balance, the existence of family violence contra-indicates equal time.
Moreover, the court finds that equal time is not reasonably practical. The evidence is abundant in terms of the parents’ current, and therefore likely future, incapacity to implement an arrangement for equal time. Likewise the evidence indicates that they do not have the capacity to communicate with each other and to resolve the difficulties that might arise in implementing equal time. The evidence is replete with examples, and even concessions by the parent themselves, about the level of conflict that exists between them, the lack of trust and their inability to communicate. In terms of future capacity, the father is certainly optimistic in this regard, but his optimism has no reasonable, objective basis. The past is the best indicator of the future. That is not only a general proposition, but a specific proposition on the facts of this case. The parents could not agree about something as benign as a holiday in Bali, even though they had been there on a previous holiday a few years earlier.
Whilst the issue of [X] sleeping in her paternal grandmother’s bed should be a harmless one, the father’s intransigent and insensitive attitude about this issue, coupled with the paternal grandmother’s attitude about the issue, demonstrates again the incapacity of the parents to communicate and resolve difficulties. The mother’s concern about [X] sleeping in her grandmother’s bed is not a sinister one. It is very simple. When [X] comes home after sleeping in her grandmother’s bed, she then expects to sleep in her mother’s bed. The mother, quite properly, does not believe this is appropriate. And yet, when both the father and the paternal grandmother were confronted with this, and given the opportunity to change their views about the issue, they would not. From the father’s perspective, the court gathers that he simply could not see the problem that this was causing.
Another example of inability to communicate is the father not telling the mother when [X] injured her finger at [sport omitted].
At paragraph 17 of the mother’s affidavit of 6 August 2017 there is another example of the parents being unable to agree about where [X] went to school in 2009. If they could not agree to that during the marriage, what reasonable prospect is there of being able to agree and to “communicate with each other and resolve difficulties that might arise” in implementing an equal time arrangement?
Indeed, the mother summarised the situation accurately, and succinctly, when in response to a question in cross-examination she said:-
You are delusionist if you think we can communicate.
Yet another example is the dilemma of conflicting loyalties that [X] was placed in as a result of the mother having boarders in her home, but not telling the father. The court needs to be very clear in this regard – neither parent has the ability to communicate and it is not a problem that is manufactured for the purposes of establishing in a forensic sense the lack of reasonable practicality.
The mother’s proposal is for substantial and significant time. Whilst many of the concerns expressed above could just as equally apply to substantial and significant time, there is a less chance, in the court’s opinion, of the sorts of difficulties arising because of the fundamentally different nature of substantial and significant time, and equal time. In the circumstances, as the mother appears to at least implicitly concede that substantial and significant time is in the best interests of [X], and is reasonably practicable, that is the decision that the court will make.
The court has given consideration to increasing [X]’s time with her father, but not necessarily up to equal time. The court is not prepared to do that. Whilst the court accepts that its orders are unlikely to operate for the period of [X]’s entire minority, the court is not in a position to prognosticate about the necessary changes in the parents’ personalities and relationships that would be necessary for the court to have greater confidence in increasing [X]’s contact with her father. In any event, the court is more than satisfied that [X] enjoys a good, meaningful relationship with her father that will be unaffected by the court’s decision not to increase his time with her.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 7 September 2012
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