Sagan and Didion

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAGAN & DIDION

[2015] FCCA 110

Catchwords:
FAMILY LAW – Parenting – parental responsibility – consideration as to whether parental responsibility is rebutted – difficulties in communication between the parents and determination by the father to withdraw from any relationship with the child if unable to have equal responsibility and equal time – consideration of objects and principles and their application in a situation where the father refuses to further participate in the proceedings or the life of the child – consideration of family report recommendations with regard to reduction in time with the father – assessment that it is appropriate to make final orders to provide settled and secure arrangements for the future parenting of the child.

Legislation:

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

Applicant:

MS SAGAN

Respondent:

MR DIDION

File Number:

TVC 43 of 2008

Judgment of:

Judge Coker

Hearing date:

14 November 2014

Date of Last Submission:

14 November 2014

Delivered at:

Townsville

Delivered on:

20 January 2015

REPRESENTATION

Counsel for the Applicant:

Mr W Pennell

Solicitors for the Applicant:

Shades of Gray Lawyers

Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Ms V Keegan

Solicitors for the Independent Children’s Lawyer:

M M Meehan

ORDERS

That all previous parenting orders be discharged.
That the Mother have sole parental responsibility for decisions in relation to the long-term and day to day care, welfare and development of the child, [X] born [in] 2008, such decisions to include but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health; and
(d)a child’s name.
That the child live with the Mother.
That the Father spend no time with the child, nor communicate by telephone with the child other than as agreed to in writing with the Mother.
That the Father have liberty to write to the child, care of the Mother’s address, and for the Mother to ensure the correspondence is delivered to the child, upon perusal of the correspondence and determination that it is child-focused.
That the Independent Children’s Lawyer be discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT TOWNSVILLE

TVC 43 of 2008

MS SAGAN

Applicant

And

MR DIDION

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 15 April 2013, Ms Sagan, whom I shall refer to as the mother, filed an application seeking orders in relation to the parenting of the child, [X]. [X], born on [omitted] 2008, is seven years of age. The respondent to the application is Mr Didion. For convenience, I shall refer to him during these reasons as the father.
The parties have been before the Court on a number of occasions. It is perhaps indicative of the nature of their relationship that, whilst the child was born on [omitted] 2008, the first application before the Court was one brought by the father seeking orders with regard to parentage testing of the child. That initial application was filed on 15 January 2008, [shortly] before [X] was born. It is, perhaps the greatest indicator of all of the circumstances that exist between the parties. This child has been the subject of proceedings for the whole of his life and nothing has changed.
Orders were made in March of 2008 by the Registrar of the Court for parentage testing to be done, and thereafter, having determined that the father was the biological father of the child, the matter proceeded onward and orders were made in April of 2009 by consent with regard to the parenting of the child. At that time [X] was 15 months old.
Further proceedings were commenced, however, for variation of the orders by consent in November of 2010, and those orders provided for the parents to have equal shared parental responsibility and for the child to live with each parent on a week-about basis. That continued to operate for some time.

THE APPLICATIONS:

However, the proceedings which have now brought this matter back before the Court were commenced by the mother on 15 April 2013. The application by the mother was subject to certain readjustment or variation, prior to the hearing of proceedings, and finally on 1 July 2014 the mother’s amended application was filed.
It sought orders on a final basis could be summarised as follows:
·       That all previous orders be dismissed.
·       That the child, [X], live with the mother.
·       That the mother have sole parental responsibility for the child.
·That each parent have day-to-day responsibility for the child when in their care.
·That the father spend time with the child and communicate with the child at any reasonable time, but, if not agreed, then if the father resides in [C], each alternate weekend from after school Friday until before school Monday, and for one half of gazetted school holidays.
·Alternatively, if the father does not reside in [C] where he is normally resident, but in Townsville where the mother resides, then that the father spend time with the child from after school Wednesday to before school Monday in each alternate week, and for the first half of the gazetted school holidays in even-numbered years and the second half of gazetted school holidays in odd-numbered years.
·Additionally, then orders were proposed in relation to special days and also to provide for telephone communication between 10 am and 8 pm on Tuesday, Thursday and Sunday, when the child is not in one parent or the other’s care, as well as for communication on special days. The child was to be at liberty to communicate with the other parent at any time that the child wished to do so, and communication was to be in a private and quiet environment.
·Changeovers were proposed to occur at the child’s school, and if unable to be facilitated at the school, then at the McDonald’s Family Restaurant at the [omitted] in Townsville.
·Additionally, the parties were to exchange information as to residential addresses and to ensure that the child was able to participate in extra-curricular activities in the Townsville locality.
·Each party was to be restrained from denigrating the other party in the child’s presence or to allow the child to remain in the presence of others doing so, or to use illicit drugs or to permit any other person to use illicit drugs in the presence of the child, or to consume alcohol above the legal driving limit in Queensland.
·The mother sought a specific order that the father attend upon and successfully complete a parenting course.
The mother’s final position in relation to the matter was outlined in her case outline filed in these proceedings on the day of hearing. There the mother went on to more particularly specify what was proposed in relation to the father spending time with the child, though the orders primarily sought in the amended application continued to be sought in that it was proposed that there should be sole parental responsibility vesting in the mother and that the child should live with the mother and spend every second and fourth weekend of each month with the father, from after school Friday until 5 pm on Sunday, with the father to be responsible for the collection and return of the child to Townsville.
It was also proposed that school holidays be more limited, suggesting that the father should only spend three consecutive nights with the child during the end of term 1, term 2 and term 3 school holidays and two blocks of three consecutive nights during the end of term 4, Christmas school holiday period. The orders sought by the mother were quite reduced from the extensive orders detailed in the amended application.
The father responded to the mother’s application and also filed an amended response. It is noteworthy that the amended response was, in fact, filed prior to the amended initiating application, being filed on 10 June 2014. The father detailed in the amended response the orders that he sought on a final basis. The orders were extensive, and, with respect, on occasion, a little difficult to understand. However, they can be, as best I am able to assess, summarised as follows:
·That the parties have equal shared parental responsibility for decisions to be made in relation to the long-term care, welfare and development of the child.
·Each parent be responsible for the care of the child on a day-to-day basis when the child is in their care, though specific orders were sought by the father with regard to the child not having his head shaved because of concerns that it would lead to a risk from exposure to the sun.
·That communication with the child occur on Wednesdays between 6 and 6.30 pm when the child is not in one parent or the other’s care, and on special days between 9 and 9.30 am.
·That the mother undergoes syllogistic assessment and be drug-tested every two months, as she is vague on detail and don’t[sic] respond to text messages that are sent to her.
The order proposed above, it is assumed, relates to psychiatric or psychological assessment in relation to the mother, and then goes on at considerable length to detail concerns that the father holds, relating to whether the child is able to have a, “fair trial” and to note that anything less than equal time is not in the child’s best interests. The father then details at length, various concerns that he has, before proceeding to further orders.
·That neither parent drink alcohol to excess of the legal driving limit within a 12-hour period before the child comes into their care, or uses or exposes the child to illicit drug use.
·The father seeks orders that the parties are to submit to random drug and alcohol testing within 24 hours of any request to do so, and to file and serve copies after each completed test with an accompanying affidavit to the Court.
·Each parent is to provide information as to their current residential address and of any change to address or telephone number within 24 hours of any change.
·The order referring to provision of information then goes on to detail concerns that the father says arise from actions on the part of the mother in the past.
·That the child be psychologically tested if the child does not spend equal time in the care of each parent.
·That each parent be restrained and that an injunction issue, restraining them from placing, posting or sharing on any social media forum any detail, photos or information about the Court proceedings or any of the parties involved in the proceedings.
·That each party be restrained, and an injunction issue, restraining them from discussing the proceedings or the orders with the child or in the presence or hearing of the child.
·That the parties communicate by text message.
·That the orders provide an authority to the child’s school to provide information to the parent or parents in relation to the child’s attendance, late arrivals, progress at school, and to obtain copies of any written information or school photographs relating to the child.
The father, perhaps indicating in certain orders his conspiratorial concerns in relation to the proceedings, sought an order under the heading, “Obligations”, in these terms:
To restrain the independent children’s solicitor, Ms Meehan, from making propitious, presumptuous statements, as she was wrong in many parts of her last report, and another solicitor be provided that is not Catholic, as we don’t want [X] to go to or to partake in any organisation that condones stolen children, homosexuals, paedophiles and the like. This is why I want [X] not to be Catholic or have anything to do with the Catholic organisation, as Ms Meehan is a strong practising Catholic and has not [X]’s best interests in mind, but of her own faith/religion, and I want [X] to be present in court to make the right outcome for his future.
I previously dealt with that particular aspect of an application in a case before the Court, dismissing the application by the father to remove the independent children’s lawyer, Ms Meehan, from the proceedings.
As is obvious from the issues and orders detailed by the father in his amended application, the father had a number of views in relation to what would be appropriate for the child and, more particularly, was concerned about any findings or recommendations that might have been made with regard to the child, contrary to what he might propose.
As is obvious, an independent children’s lawyer was essential in these proceedings and in the outline of case filed on behalf of the independent children’s lawyer, on 14 November 2014, recommendations for orders were detailed. The orders as proposed were succinct. They were as follows:
(1) That the mother have sole parental responsibility, but with a duty to consult and keep the father informed of major decisions and events, including school activities.
(2) That [X] live with the mother and spend time with the father:
(a)on alternate weekends, from Friday afternoon to either Sunday afternoon or Monday morning;
(b)for one half of the end of term school holidays;
(c)for one half of the Christmas school holidays.
These proceedings were difficult in the extreme. That arose for a number of reasons, not the least of, with respect, was that the father acted on his own behalf and, in many respects, did not act in a manner which was of assistance to him, in relation to the determination.

THE FAMILY REPORT:

At the commencement of the proceedings, the independent children’s lawyer indicated that in the circumstances it would be appropriate, she suggested, to call the report writer first, and that was agreed to by the legal representatives for the applicant, but was rejected by the father. Subsequently, I heard argument in relation to that particular aspect of the matter, and after explaining to the father that it would be a situation of him having the opportunity to cross-examine the report writer, and, if necessary, following other evidence, to call the report writer again, he then acceded to the suggestion that the report writer be called first.
It was important that that occur in relation to the matter because two reports had been prepared a year apart and those reports were the basis upon which it was suggested that there should be radical reductions in the opportunities for time to be spent by the father with [X]. As I noted previously, orders were made by consent in 2010, which provided basically for equal time to be spent. However, circumstances changed, and in the first report dated 23 August 2013, Ms D, the report writer, noted that on the information available that she recommended that the mother have sole parental responsibility, that the child live with the mother and that the child spend time with the father on alternate weekends from Friday until Monday morning, with handovers, if possible, to be effected at the school, and for one half of the school holiday periods.
Specifically, the report writer also recommended that both parents attend a parenting program and that each parent specifically undertake, or, if necessary, be restrained from denigrating the other parent in front of the child.
The second report by Ms D, dated 16 July 2014 and filed 12 August 2014, goes on to recommend some reductions in the father’s time to be spent with the child and, in fact, notes that the mother should still have sole parental responsibility and that the child should live with the mother, but that the father should have the opportunity to spend time with the child on alternate weekends, but not from after school Friday until before school the following Monday, but rather, until Sunday afternoon.
Additionally, Ms D proposed the reduced periods of holiday time to be spent with the father, noting that it should only be for three to four nights during the school holiday periods at the end of terms 1, 2 and 3, and for two periods of three to four nights during the December/January, end of term 4 school holidays. It was also proposed that there should be telephone communication one time a week at structured times and that there be a continuation of a non-denigration clause.
When called to give evidence in relation to this matter, Ms D explained at some length her recommendations in relation to this matter. She noted, in particular, that her recommendations in relation to school holidays was based on a concern that, if [X] were to spend prolonged periods of time with the father, he would be exposed to excessive criticisms of the mother by the father, but needed to balance those concerns against the fact that the child would be disappointed if there were a reduction in time.
Ms D specifically noted that the father at both sets of interviews had been, as she put it, “unrelenting in his criticisms of the mother”, and that unfortunately she had formed the view that the father could not change. When asked in evidence-in-chief by counsel for the independent children’s lawyer what damage that could cause to the child, Ms D provided an extensive response in relation to the effects upon [X]. She noted:
·The child would be hurt by this. It would affect his self-esteem, concentration, emotional development and ability to form future relationships.
·The child has been already required to compartmentalise his feelings in relation to each of his parents because of the reactions by the father to any positive statements made with regard to the mother.
·In one year, between the first lot of interviews and the second lot of interviews, there had been changes in [X] in that he was more self-aware of the consequences of his actions and he would not talk about his time with his father
Ms D surmised that this was because he had been instructed not to talk about his time with his father.
When asked whether those observations, and particularly the differences between the first and second lot of observations were of concern, Ms D noted that in her view they would have had a negative effect on the child, and as noted, would be affecting issues with regard to self-esteem, concentration, emotional development and the like.
In cross-examination by counsel for the mother, Ms D noted that there had been, as she put it:
No positive change in one year and that there was an ongoing pattern of denigration of the mother, culminating from the fact that the father had no insight into his behaviours or the effect of his behaviours upon the child.
The father had indicated in his material that he would withdraw in respect of any relationship with the child, if he were not to get equal time. In paragraph 21 of his affidavit filed on 29 September 2014, the father says:
I will withdraw my want for any visiting rights if Ms Sagan has sole parental responsibility of [X], and [X] can maybe find me when he turns 18. I will have to pay maintenance if I’m still alive. Let there be no doubt that [X] will lose all inheritance if this happens.
Ms D was asked about this statement by the father and, more particularly, the consequences for [X]. She responded as follows:
It is not child-focussed. It would be devastating for [X] and when the litigation is over, the father and [X] can have a good relationship.
Ms D was also asked about the father’s statements contained within his affidavit material and in statements made to her during interviews, that if he did not have equal time with the child then he would give [X]’s items of property away. Again, Ms D noted that that would be confusing for the child. It would be hurtful to [X], particularly when having his property at the father’s home made it his home and it was home to him. Ms D indicated, when asked whether this showed that the father was not child-focussed, that she did not think that that was the case, but rather that such statements were an indication of the father’s desperation to have equal time with the child, but, of course, also indicated his lack of insight in relation to the effects of his actions, upon the child.

When speaking in her report about the father being embittered toward the mother, and it is noteworthy that the father denies that categorically, Ms D noted that, again, such an attitude of the father was not child-focussed and showed clearly the father’s obsessive behaviour. In other words, that he required all or nothing in relation to the parenting of the child, and that, if anything, the father was displaying an attitude of possessiveness towards the child, rather than a recognition of the child’s own innate needs and the obligations of the parents to meet and to provide for those needs.
The father made a number of statements in his more recent trial affidavits, having filed a number of Affidavits. He made reference to concerns that if he did not get what he wanted in relation to parenting, then he would go back into a depressive state, he having suffered from depression in the past, and would be required to take more drugs. Ms D noted that that was concerning for her, but acknowledged that it probably arose from the father’s desperation to have time with the child, but it showed a lack of maturity and understanding on the part of the father.
More concerning still, were indications by the father that he may suicide, making reference to the fact that Robin Williams, an actor, had recently taken his own life and that that might be a way out. Ms D noted that that would be devastating for [X], and indicated that it was her hope that such statements by the father were “posturing”.
Quite simply, Ms D was concerned at much that the father said and did in his interaction with the child, but also in respect of comments made with regard to the mother. In particular, Ms D thought that the father, seeking to have no communication or interaction with the mother of any real nature and to virtually require the child to live two separate lives, one with the father and one with the mother, was not healthy for [X]. As she indicated, it would require him to compartmentalise his life and that that would be difficult and harmful for the child.
It was also noteworthy that Ms D was adamant that the statements recorded by her in her reports, as being made by the father were made and were not, in fact, misunderstandings or misinterpretations by her. In particular, reference was made to the statement allegedly made by the father that the mother was “a whore”. The father, in his material, suggested that he had not said that that was the case, but rather that the mother’s boyfriend was “a pimp”. Similarly, when asked about the father’s suggestion that he was not calling the mother a whore when he referred to her as a “pro” to persons at the day care centre, but rather was referring to her being “a professional liar”, she assessed that the father was simply trying to deflect appropriate and proper criticisms of him by suggesting that others had misinterpreted or misunderstood what was said.
Ms D’s evidence in relation to the concerns with regard to the child and, in particular, the long-term effects upon the child were telling.
Insofar as the father’s cross-examination of Ms D was concerned, it was, informative for the Court, but unfortunately of little assistance to the father for his case. The father inquired whether the report writer had taken the mother’s side in relation to the matter, but that she was mistaken in doing so, because the mother was, “vague in her history”. Ms D indicated that she did not take her side, but rather sought to assess evidence from a number of sources in relation to the proceedings.
Ms D was asked, almost in a scattergun approach by the father, about issues with regard to interviews with both the paternal and maternal grandmother and why they had or had not occurred, as well as interviews with the mother’s older daughter and issues relating to what the father said were poor attendances by the child at school. Ms D indicated that much of what the father referred to in the questions, but also referred to in his material, were issues that arose from his “beliefs” and that she had sought to gather information from a number of sources, culminating in the fact that in her professional opinion the indicators were not that the mother was a heavy drug user, but rather that, as there were no indicators available to her of drug use, she could not suggest that it would be a risk or danger to the child.
The father became, I thought, a little exasperated in his cross-examination of Ms D, and finished with a final question to the effect of, “Why do you give me weight?” to which Ms D responded:
I have to look at all the evidence and I have to look at what is said.
Prior to discharging Ms D, I asked about her views and whether anything that she had heard in the court room had changed those views. She indicated that nothing had changed her view. Troublingly, however, when I inquired of counsel and of the father whether there was anything that arose from that question, the father was the only one who had something arising. He said to the report writer words to the effect, “If my time with [X] is limited I’ll walk away and see him at 18 years.” Ms D responded with, I thought, a compassionate and understanding response. She suggested that she could see that the father was upset and noted that at the end of the proceedings it was important that [X] have the opportunity for a relationship with both of his parents.
At the time that Ms D was discharged the father was distressed. As a result of that, I took the opportunity to adjourn and to enable the father to have the opportunity to compose himself. I also indicated to him that very clearly the evidence of Ms D, but I thought also the other evidence that had so far been made available to me through the filing of material, gave rise to concerns with regard to there not being a basis upon which there could be equal shared parental responsibility, because of the fact that there was no respect or appropriate communication between the parties.
I suggested that the father speak with the independent children's lawyer about the proposals and how they might be able to be moulded to provide at least some opportunity for the father’s continued relationship with the child. When the matter was about to be stood down the father said:
I’d like to see my son for the last time.
The matter was then stood down, because I, like Ms D, assessed that the father was upset and I had hoped that statements made by him were made in circumstances of that distress and that when the father had had the opportunity to compose himself, a different approach might be taken.
Just after the proceedings were adjourned and well prior to resuming, following the luncheon adjournment, the independent children's lawyer was approached by the father and advised that he was going to attend at the school. He further indicated that he was not prepared to discuss any other compromised positions that might be put in relation to the parenting of the child. It was indicated through the independent children's lawyer that the father may not return.

THE PARENT’S EVIDENCE:

At the resumption of the hearing, however, the matter did resume and counsel for the independent children's lawyer advised that the father remained steadfast in his view that he should be involved in all aspects of the child’s life, and that that should be reflected in equal time being spent with each parent and with there being equal responsibility.
The mother was then called in relation to this matter. She was an impressive witness. She seemed worn down by the dispute between she and the father, and in all the circumstances, that is perhaps understandable. The mother was positive about the need for a relationship between [X] and the father. When asked in cross-examination by counsel for the Independent Children's Lawyer whether [X] enjoys his time with his father, she indicated that that was the case. She also indicated that if the denigration of her by the father was put to one side, then otherwise there was a good relationship between the father and [X], and she wanted that to continue.
She was asked whether she understood the responsibilities that she would have in respect to the parenting of [X] if she had sole parental responsibility and primary the care of the child, to ensure that the father was kept apprised of developments with regard to the child. She indicated that she did understand that, and when asked how she could assure the Court that she would meet those obligations, she answered, I thought, in an honest and impressive manner. She said words to the effect:
Because I would be doing it for [X]. He loves his father, so I can promise that I will continue that relationship with his father.
She further indicated that she knew that if she did not act responsibly in that manner that she would be in breach of orders, and she would not wish to see herself in such a breach.
The father then sought to cross-examine the mother. His cross-examination of the mother was a little like his cross-examination of the report writer. It was a scattergun approach. It stemmed almost exclusively from what the father believed or surmised was the situation, in relation to the mother's household. The first question that he asked her was what her name was on her birth certificate. There was an objection taken as to the relevance of such a question, and the direction given by me was to move on from that issue, but it was clear that the father was not able, unfortunately, to focus on the needs of the child, but rather on his own needs and on his own suspicions and concerns with respect to what might or might not be happening in the mother's household.
He asked about whether the mother's older daughter, [Y], did [X]'s homework, and she indicated that [Y], as an older sister might, assisted [X] with his homework but did not do his homework. Quite simply, the father was unable to focus on the needs of the child or the best interests of the child, but rather on his own hurt and dismay at there being suggestions that he may not be able to achieve what he wanted, in relation to the parenting of the child.
The father was then called, there only being each parent as witnesses in relation to the proceedings. The father, after confirming his various affidavits filed in relation to the matter, was given the opportunity to address any other matters that might be of concern to him. He indicated that there were two matters he wished to address before he was cross-examined. The first was to note his refusal to drop [X] at the mother's home, but only to drop [X] at the school. He failed to appreciate that that would cause difficulties, for example, during holiday time to be spent with the child, as handovers at the school could not be facilitated, but refused to contemplate any other arrangement. He also indicated that the mother hears things or makes things up, and that he knows what he said and that the mother had misinterpreted intentionally or unintentionally some of the statements that had been made by him.
The father was then cross-examined by counsel for the mother. It was a distressing spectacle because the father simply continued to fail in any way to appreciate the unrealistic and unfortunately irrational nature of his expectations and his views. He was asked about the allegations that he had made in relation to the mother, including that she was a drug-user, that she was a professional liar, that she was a pathological liar, and that she was a prostitute.
In each instance, he explained that there were misunderstandings, and where there were references to “a pro”, he was referring to her at the day-care centre as a professional liar, but when it became clear that they misunderstood that, he then changed from calling her “a pro” to “a pathological liar”. When I asked why it was necessary to call her any of those things, the father seemed somewhat bemused that there was any clarification necessary, and again, it appeared clear that because he believed that to be the case, it was appropriate to act in such a manner.
When asked about his intent during the luncheon adjournment to attend at the child's school, he indicated that he had done so and that he had taken items to the school and had dropped them there. He was asked why he had done that, and he indicated that it was because it was the last time he would see the child and he had taken those items to the school which belonged to the mother. They included the mother's school shirt and school shorts, which had been in his possession following time spent with the child. When asked why he would not wait until the following Monday to return the items to the mother, he responded unfortunately in this way:
I'm going to walk away. It only will be the case that I will communicate in writing. There will then be no problems with what I say and I will write to [X] for birthdays and Christmas time.
When asked whether it was not the case that up until the hearing, and in fact the calling of the mother, he had indicated that he wanted half of the time, he indicated that that was what he did want, but he assessed that there was so much against him, and when he had not done what was alleged, that he would walk away because he was:
…over the lies and sick of the lies.
When asked whether he appreciated that going to the school today was hurtful to the child and was perhaps an irrational act, he said that he had promised [X] that he would fight for him, and he had that statement to [X] on tape. He said:
I will hang up the bat and ball.
He went on to indicate that in his assessment his actions were rational and he did not want lies being said all the time. He had had enough, particularly when just about all statements made by the mother were lies.
When cross-examined by the Independent Children's Lawyer, the father continued to be focused on his own interests. Counsel for the Independent Children's Lawyer noted that the father had said repeatedly, and it was assessed by Ms D as being the case, that he loved [X] and was devoted to him. He was then asked whether he understood that the hearing was about [X]'s best interests and the father indicated that he did understand that, but with all the lies:
We will stop visitation.
When asked who "we" was, he indicated, he and his mother.
Quite simply, the father was unfortunately unable to appreciate that his stance in relation to this matter was entirely focused on his own interests, his own concerns and hurts, with regard to what would be the situation if [X] spent less time with him. The father failed to appreciate when he was asked about it, the effect upon the child of questioning him about whether he wanted more time or less time with him and how he would feel if he had less time.
When asked if he appreciated that [X] was only six years of age and that questioning him was not a good thing, he simply responded, "I don't know". When asked whether he had taken on board the concerns reflected in the second family report, he said he had done so and that he recognised that it was not appropriate to question the child, but then was caught out in his own previous statements where he had indicated that he had just the day prior to hearing taped the child in relation to the child's wishes.
Counsel for the Independent Children's Lawyer was upfront in the concerns that the Independent Children's Lawyer had. In fact, the father was specifically asked whether he understood the proceedings were, "not about you". The father's response was quizzical, in that he indicated that he was unable to understand the question and simply indicated that going through the documents brings on the depression, and in that case he would stop all communication. The father had no appreciation of the hurt that he would cause to this little boy.
Counsel for the Independent Children's Lawyer concluded her cross-examination, and when asked whether the father then wished to say anything in relation to his evidence, he simply stated:
Every second weekend is unacceptable.
When I specifically asked him about the effects that he saw on [X] if he stopped all time with his father, the father responded that he would have to stop all time, because he would not be able to spend equal time with the child.

THE CIRCUMSTANCES IMMEDIATELY FOLLOWING THE EVIDENCE:

Submissions were then made in relation to the matter by counsel for the Independent Children's Lawyer and counsel for the mother. I thought it appropriate, and all agreed, that the father should hear what was proposed by the Independent Children's Lawyer and the mother in relation to orders. The Independent Children's Lawyer through her counsel maintained her recommendations as detailed in the case outline, but also suggested that there should be the opportunity for additional communication using electronic means such as Skype or other electronic communication.
Counsel for the mother made similar recommendations in relation to the matter, though perhaps, and understandably, more forcefully in relation to the father's lack of insight in relation to the effect of his behaviour's upon the child. Counsel for the mother therefore suggested that if there were to be arrangements with regard to time being spent, the father would need to know that he must maintain that time and continue his interaction with the child, because to start and stop such time with the child would be even more devastating than stoppage of all time and communication.
I thought counsel for the Independent Children's Lawyer and counsel for the mother appropriately outlined the issues that needed to be addressed in relation to the matter.
The father's submissions then were called for and they were succinct and troubling in the extreme. The father stood up and said:
We will keep in contact by writing.
The father sat down thereafter and indicated that he had nothing further to say and would not further participate in the proceedings. I was concerned at that attitude in relation to the matter. The father indicated that he would not see the child again and I suggested that I would give the father some further opportunity to think about what he should do. I suggested that in that regard I would make interim orders which were generally in terms of a cessation of time, because I did not see it as appropriate to make orders which would be the subject of breach, but much more importantly, the subject of ongoing hurt to the child if there was an expectation of time being spent and it did not occur.
Orders were then made of an interim nature at the end of the proceedings, which were to suspend the operation of all previous orders and to provide for the mother to have sole parental responsibility for the decisions to be made in relation to the child and for the child to live with the mother. Orders were then made specifically with regard to there being no specific arrangements in relation to the father spending time with the child or communicating with the child, but that the father had liberty to write to the child, care of the mother's address, and for the mother to, upon perusal of correspondence and determination that it was child-focused, ensure that the child received those communications.
It was also directed that a copy of any communication be forwarded by the father to the Independent Children's Lawyer so that the Independent Children's Lawyer was aware of the nature of any communication. The father indicated that he appreciated that order and then left the Court.

THE LAW AND ITS APPLICATION:

I have thought long and hard about the situation that now exists. There has been no further information provided and it is appropriate that there be some finality in relation to arrangements, with regard to the parenting of this child. The father, as best I understand, has determined, for reasons which are unfortunately focused far more on his needs than the child's needs, to absent himself from the child's life and to step away from the obligations and responsibilities of parenting.

It is clear that the father is distressed at the reductions in time that have occurred, but what is of particular concern is that the father has put his own interests ahead of the best interests of the child, and that is neither child-focused nor an appropriate response by a parent showing a responsible and proper attitude to the parenting of a child.
I am mindful of the various legal considerations that must be looked at in relation to any determination. In the circumstances, however, I do not intend to present a lengthy dissertation on the law. I am mindful that the paramount consideration, pursuant to the provisions of section 60CA is that the welfare of the child be to the fore in any decision. I am obviously mindful of the fact that there is a presumption arising pursuant to the provisions of section 61DA that equal shared parental responsibility is appropriate in the majority of cases, if the parents are able to work together, as it would ensure that both of those persons, most responsible and concerned about the best interests of the child, would have input in relation to the decision-making process.
The presumption is rebuttable, and it is clear that in this particular case, where there is no communication of any real benefit between the parents, noting that the family report writer describes the relationship as "toxic", that to suggest that there should be equal parental responsibility is to fly in the face of good sense, and certainly to fail to recognise what would be in the best interests of the child.
I am satisfied beyond any doubt that the presumption of equal shared parental responsibility is rebutted, and intend to order that the mother have sole parental responsibility for the child.
Further, I am mindful of the need for this child to have a settled and stable environment and routine. This little boy loves his father desperately. It is tragic indeed that the father is unable to realise, that in meeting his obligations and responsibilities in relation to parenting, he may need to suffer some hurt and dismay at a reduction in time. It is the Father who needs to address those issues. The father is unable to do so.
To make orders which provide for the father to spend time with the child and for that then not to occur is, in my assessment, far more harmful than would be the case if orders as are presently in place on an interim basis were made. The father has the opportunity to communicate in an appropriate manner with the child. The father has the opportunity, should circumstances change, to re-establish a relationship with the child, noting, as I do, and accepting, as I do, that the mother would put the child's best interests to the fore and if possible would facilitate a relationship with the father.
In any event, if the father was precluded unreasonably or unrealistically from a relationship with the child, then he would have the opportunity to bring proceedings in relation to the re-establishment of a relationship, if it were able to be of a positive nature for this little boy.
I am mindful of the objects and the principles of the Act. In particular, I am mindful specifically of the fact that it is the child's right to a meaningful relationship with each parent. That must be considered in orders that are made, but it must be considered in light of the need to ensure that a child is protected from physical or psychological harm. Section 60B, detailing the objects and principles of the Act, reflects those obvious concerns. Section 60B(1) and (2) are in these terms:
60B(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.
60B(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).
The considerations as set out in section 60CC(2), (2A) and (3) also reflect those objects and principles and are in these terms:
60CC(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.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
60CC(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 extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(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) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)   any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)   any other relevant matter;;
(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.
Here, there is a child desirous of a relationship with a father. Unfortunately, there is also a situation where the father is unable or unwilling, because of a lack of insight or a greater involvement by him in his own wishes than in the needs of the child, of failing to make himself available to the child. If there needs to be, as is in my assessment appropriate here, a weighting between the child's right to a relationship with the father and the need to protect the child from harmful circumstances, and there would be harm if this child was expecting and hoping for a relationship which was rejected by the father, then there is the obvious need to preclude that possibility of harm.
As such, I am satisfied that the only proper orders that can be made at this time are generally to reflect on a final basis orders which had been made on 14 November 2014 on an interim basis. I am satisfied that that, at least at this time, considers the best interests and the welfare of the child, and most particularly, the protection of the child from the psychological and emotional harm that would stem from attempts and hopes for a relationship that was not facilitated by the father.
Accordingly, the orders of the Court will be as detailed at the commencement of these reasons.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Coker

Associate:

Date: 20 January 2015

[2015] FCCA 110

20 January 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness