Sardella and Makovich
[2011] FMCAfam 183
•11 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SARDELLA & MAKOVICH | [2011] FMCAfam 183 |
| FAMILY LAW – Parenting orders – conflicting positions as to parental responsibility and equal time/substantial and significant time as between the parents – strong support for sole parental responsibility vesting in the mother from the independent children’s lawyer – significant issues of domestic violence both physical and emotional – significant allegations as to drug use and abuse – strong but divergent recommendations of reporting psychiatrist and psychologist – consideration of recent writings on domestic violence and drug use upon parenting patterns – findings as to abusive behaviours on the part of the father and consequential effects upon the mother and child of the relationship – findings of effects upon both parties’ children of previous relationships – acute desire on the part of the mother to relocate with the child away from the locality resided in by the father – finding of genuine fear and consequential effect upon the mother’s capacity to parent – leave granted to relocate. |
| Family Law Act 1975, ss.60B, 60CA, 60CC(1)-(5), 61B, 61C, 61D(1)-(2), 61DA(2) & (4), 65DAA(1)-(5), 65DAC, 65DAE(1)-(3) |
| Lansa & Clovelly [2010] FAMCA 80 AIF v AMS (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Chappell and Chappell (2008) FLC 93-382 |
| Articles Rothman, E., Mandel, D., & Silverman, J. (2007). Abusers’ perceptions of effect of their intimate partner violence on children. Violence Against Women, 13(11), 1179-1191. |
| Applicant: | MS SARDELLA |
| Respondent: | MR MAKOVICH |
| File Number: | TVC 224 of 2009 |
| Judgment of: | Coker FM |
| Hearing date: | 25 & 26 May, 22 & 23 September & 5 November 2010 |
| Date of Last Submission: | 26 November 2010 |
| Delivered at: | Townsville |
| Delivered on: | 11 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Pennell |
| Solicitors for the Applicant: | Purcell Taylor Lawyers |
| Counsel for the Respondent: | Mr Honchin |
| Solicitors for the Respondent: | Stevenson & McNamara |
| Counsel for the Independent Children’s Lawyer: | Ms Mayes |
| Independent Children’s Lawyer: | MM Meehan |
ORDERS
That the Mother have sole parental responsibility for decisions relating to the major long-term issues of the child, [X] born [in] 2007, including but not limited to:
(a)The child’s education (both current and future);
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(d)The child’s name;
(e)Any changes to the child’s living arrangements which make it significantly more difficult for the child to spend time with each parent.
That in exercising the parental responsibility in paragraph 1, the Mother shall advise the Father of any such decisions and seek his input prior to making a decision.
Notwithstanding paragraphs 1 and 2 of this Order, the Mother and Father be responsible for the day-to-day care, welfare and development when the child is in their respective care.
That the child live with the Mother in Mackay.
That the child spend time with the Father at all times as agreed between the parties and failing agreement as follows:
(a)Until the child commences Prep:
(i) for six block periods per annum with each such block period to not exceed one week at any given time upon the Father giving the Mother 28 days notice in writing of his intention to spend such block time with the child;
(ii) such block periods to not include the Mother’s birthday or Mother’s Day;
(iii) such block periods to only include Easter Sunday, the child’s birthday or Christmas Day in alternate years;
(b)Once the child commences Prep and until the child commences year 6:
(i) for one weekend during each school term upon the Father giving the Mother 28 days notice in writing of his intention to spend such weekend time with the child, providing such weekend does not include Mother’s Day or the Mother’s birthday;
(ii) for one week in the June/July school holidays and one week in the September/October school holidays on the basis that the Father will spend the first week of the school holidays in even numbered years and the second week of the school holidays in odd numbered years;
(iii) for all of the Easter school holidays each year; and
(iv) two weeks in the Christmas school holidays per annum to be taken in two periods of one week each and not to be taken consecutively. The father to include Christmas Day in his block period only in even numbered years. The father to give the mother 28 days notice in writing of his intention to spend such time with the child and the dates of such time.
(c)Once the child commences Year 6 onwards:
(i) for one weekend during each school term upon the Father giving the Mother 28 days notice in writing of his intention to spend such weekend time with the child, providing such weekend does not include Mother’s Day or the Mother’s birthday;
(ii) for one week in the June/July school holidays and one week in the September/October school holidays on the basis that the Father will spend the first week of the school holidays in even numbered years and the second week of the school holidays in odd numbered years;
(iii) for all of the Easter school holidays each year; and
(iv) half the Christmas school holidays per annum on the basis that the child will spend the first half of the school holidays with the Father in even numbered years and the second half of the school holidays with the Father in odd numbered years.
The school holiday times to be defined as follows:
(a)The first half of the school holidays, with the exception of the Easter school holidays, to commence at 2pm on the first Saturday after the last day of the school term;
(b)The second half of the school holidays in the June/July and September/October holidays to commence at 2pm on the second Saturday after the last day of the previous school term and to finish at 1pm on the Saturday before school commences in the next term;
(c)The second half of the school holidays in the Christmas holidays to commence at 2pm on the fourth Saturday after the last day of the school year and to finish at 1pm on the Saturday before the next school year commences;
(d)The Easter school holiday period shall commence at 2pm on the day after the last day of the first term of school at to finish at 2pm on the day before the first day of term 2.
Changeover for the child to occur at the [K] Police Station.
Notwithstanding the paragraphs above, the child to spend special days with the Father in the event the parties are staying within 50 km of each other on such special days as follows:
(a)from 9am until 5pm on Father’s Day with changeover to be at a location agreed between the parties;
(b)on the child’s birthday for not less than five hours if a non-school day or three hours on a school day at times to be agreed and failing agreement from 12pm to 5pm (if a non-school day) and 3pm to 6pm (if a school day) with changeover to be at a location agreed between the parties;
(c)on the Father’s birthday for not less than five hours if a non-school day or three hours on a school day at times to be agreed and failing agreement from 12pm to 5pm (if a non-school day) and 3pm to 6pm (if a school day) with changeover to be at a location agreed between the parties.
In the event the Father is unable to spend time with the child on Christmas Day, Father’s Day, the Father’s birthday or the child’s birthday, the Father to have telephone communication with the child on those days, with the Mother to facilitate the child ringing the Father.
That both parents are at liberty to contact the child when they are not in their care at all reasonable times and failing agreement, between 6.30pm and 7.30pm on Wednesdays and Sundays. In the event that the child is unavailable when the telephone calls are made in accordance with these Orders, both parents will facilitate and encourage the child to return the telephone call within 24 hours.
That both parents will facilitate the child communicating with the other parent by telephone at all reasonable times should the child express the wish to call the other parent.
Neither parent to denigrate the other parent or members of the other parent’s family in front of the child and each parent to take all steps to remove the child from the presence of any other person who is doing so in front of the child.
Neither parent to use illegal drugs or drink to excess at any time the child is in his or her care.
That the Mother undertake post-traumatic stress counselling, including domestic violence counselling.
That the Father undertake anger management counselling.
That the Independent Children’s Lawyer be discharged upon the expiration of 28 days from the date of this order.
IT IS NOTED that publication of this judgment under the pseudonym Sardella & Makovich is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 224 of 2009
| MS SARDELLA |
Applicant
And
| MR MAKOVICH |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to orders sought with regard to the parenting of the child [X]. [X] was born [in] 2007 and is, therefore, shortly to turn four years of age. She is the child of the relationship between
Ms Sardella, whom I shall refer to as the mother, and Mr Makovich, whom I shall refer to as the father. The mother initiated proceedings in this matter on 11 March 2009.
In that application, she sought orders on both an interim and final basis, and the issues in relation to the interim application have been long since dealt with. The orders that were sought in the final application were in these terms:
1.That the child, [X], born [in] 2007 live with the Mother in Mackay.
2.That the mother has sole parental responsibility for making decisions about the long term care welfare and development of the child.
3.That the child spend time with the father as agreed between the parties, failing agreement from 5.00pm Friday to 5.00pm Sunday of each alternate week.
4.That the father be responsible for changeovers at the [K] Police Station.
5.That the Mother shall:
(i) Keep the father informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorize those practitioners to provide the father with information that they are lawfully able to provide about the child
(ii)Inform the father as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorizes any treating medical practitioner to release the child’s medical information to the father.
6.If the parties reside in the same locality, that the child spend time with each parent on special occasions as follows:
(a) For Christmas Day;
(i) From 2.00pm Christmas Eve until 2.00pm Christmas Day in even-numbered years with his father and in odd-numbered years with his mother; and
(ii)From 2.00pm Christmas Day until 2.00pm Boxing Day in odd-numbered years with his father and in even-numbered years with his mother.
(b)On the child’s birthday (with the parent he is not living with on that day) from 12 noon to 6.00pm with the father to be responsible to collect and return the child to and from the mother’s residence;
(c)With his Father on Father’s Day (if a non-contact weekend) from 9.00am until 5.00pm with the Father to be responsible to collect and return the child;
(iii)With his Mother on Mother’s Day (if a non-contact weekend) from 9.00am until 5.00pm with the Mother to be responsible to collect and return the child.
7.Neither parent shall denigrate the other parent, or his/her parents in the presence or hearing of the child nor allow others to do so.
Circumstances, however, changed in relation to the matter in that in or about January of 2010, the mother made arrangements, unbeknownst to the father, to relocate herself and the child [X], when [X] was in her care, to Mackay, where she says she had support and assistance provided by members of her family, including, particularly, her parents, who had lived in Townsville but had sold their residence. As a result of that move, therefore, the mother’s position at the hearing of this matter was to seek an order which included the terms which were contained within the initiating application, but in addition, sought that she have leave to relocate from Townsville to Mackay, with the child.
In the written submissions that were prepared and provided in relation to this matter, the mother’s position was reiterated as being one in which there was significant support provided to her by parents and family, and that for a considerable number of reasons, which will obviously be commented upon in these proceedings, leave should be granted for her to relocate.
The father’s response in relation to the proceedings was filed on
18 March 2009. Again, the orders that were sought by the father were detailed in the response filed on 18 March 2009 and provided as follows:
1.That the child, [X], born [in] 2007 live with the Father.
2.That each party shall have the sole responsibility of the child’s day to day care welfare and development during such times as the child spend time with, or live with that parent.
3.That the parties shall have equal shared parental responsibility for the major long term care, welfare and development of the child.
4.Without limiting the parental responsibility of the parents pursuant to paragraph 3 of these Orders, each party shall keep the other informed of and shall properly consult with each other with respect to any significant parenting issue affecting the child. For the purposes of these Orders “parenting issues” are:-
(a) Any medical or health matter concerning the child;
(b) Any medical or health matter affecting each party which may affect the ability of that parent to care for the child;
(c) Matters relating to the child’s education, including, but not limited to, the choice of school and curriculum and the provision to each parent of all school reports, school photographs and all communications from the child’s school other than with respect to routine or administrative matters;
(d) Matters concerning the child’s social development and sporting activities; and
(e) Matters concerning the child’s religion or faith.
5.The child will spend time with and communicate with the parents at all reasonable times as agreed between the parties, but failing agreement as follows:-
The Father
(a)
(i)For the whole of the June/July gazetted Queensland school holidays in odd numbered years to commence at the conclusion of the last day of school term and ending at 3.00pm on the first Monday of the commencement of the school term:
(ii)For the first half of the December/January gazetted Queensland school holidays in odd numbered years to commence at the last day of the school term and ending at 12 noon on the fourth Saturday of the holidays;
(iii)For the whole of the end of the first term gazetted Queensland school holidays in even numbered years to commence at the conclusion of the last day of school term and ending at 3.00pm on the Monday of the week the school recommences the following term;
(iv)For the whole of the September/October gazetted Queensland school holidays in even numbered years to commence at the conclusion of the last day of the school term and ending at 3.00pm on Monday of the week school recommences in the following term;
(v)For the second half of the December/January gazetted Queensland school holidays in even years commencing in 2010 to commence at 12 noon on the fourth Saturday and concluding at 3.00pm on the first Monday of the school term;
(vi)Should the child be in the care of the mother on Father’s Day then the Father is to spend time with the child from 10.00am to 4.000pm;
(vii)Should the child be in the mother’s care on the father’s birthday then the father is to spend time with the child from 2.00pm to 7.00pm;
(viii)Should the child be in the care of the mother on the child’s birthday then the father is to spend time with the child between 2.00pm and 7.00pm on a non school day and between 3.00pm to 5.00pm on a school day;
(ix)That the father be entitled to exercise a period of additional time for a special family occasions at such dates and times as agreed between the parties upon giving notice to the other party no less than a week before in writing the additional time is requested and such request shall not be unreasonably withheld; and
(x)That the party with whom the child is not spending time with can communicate with the child at any reasonable time by telephone as agreed between the parties and failing agreement between n 3.00pm and 5.00pm each Monday, Wednesday and Friday.
The Mother
(b)
(i)Each alternate weekend commencing at 3.00pm on Friday to 5.00pm Sunday;
(ii)For the whole of the June/July gazetted Queensland school holidays in even numbered years to commence at the conclusion of the last day of school term and ending at 3.00pm on the first Monday of the recommencement of the school term;
(iii)For the first half of the December/January gazetted school holidays in even numbered years to commence at the conclusion of the last day of the school term and ending on the fourth Saturday of the holidays;
(iv)For the whole of the end of the first term gazetted Queensland school holidays in odd numbered years to commence at the conclusion of the last day of school term and ending at 3.00pm on the Monday of the week the school recommences the following term;
(v)For the whole of the September/October gazetted Queensland school holidays in odd numbered years to commence at the conclusion of the last day of the school term and ending at 3.00pm on Monday of the week school recommences in the following term;
(vi)For the second half of the December/January gazetted Queensland school holidays in odd years commencing at 12 noon on the fourth Saturday and concluding at 3.00pm on the first Monday of the school term;
(vii)Should the child be in the care of the father on Mother’s Day then the Father is to spend time with the child from 10.00am to 4.00pm;
(viii)Should the child be in the father’s care on the mother’s birthday then the father is to spend time with the child from 2.00pm to 7.00pm;
(ix)Should the child be in the care of the father on the child’s birthday then the mother is to spend time with the child between 2.00pm and 7.00pm on a non school day and between 3.00pm to 5.00pm on a school day;
(x)That the mother be entitled to exercise a period of additional time for a special family occasion at such dates and times as agreed between the parties upon giving notice to the other party no less than a week before in writing the additional time is requested and such request shall not be unreasonably withheld; and
(xi)That the party with whom the child is not spending time with can communicate with the child at any reasonable time by telephone as agreed between the parties and failing agreement between 3.00pm and 5.00pm each Monday, Wednesday and Friday
6.Notwithstanding any other Orders herein the children shall spend Christmas period as follows:-
(a)From 4.00pm Christmas Day to 4.00pm Boxing Day in odd numbered years and from 4.00pm Christmas Eve to 4.00pm Christmas Day in even numbered years with the father;
(b)From 4.00pm Christmas Day to 4.00pm Boxing Day in even numbered years and from 4.00pm Christmas Eve to 4.00pm Christmas Day in years with the mother.
7.Each party is to advise the other of any change of address or home, work and mobile telephone contact numbers within 48 hours of any such change.
8.That neither party remove the child from the Townsville district without the written consent of the other party.
9.That all changeovers take place at the [K] Police station with each party to be responsible for the delivery or collection of the child as the case may be.
10.Neither party shall denigrate the other parent, or his/her parents in the presence of the child nor allow any other persons to do so.
The father, however, was unaware, obviously, at the time of filing that response, that the mother was to relocate. His position is now more specifically to say that it would be appropriate for the child to remain living in Townsville. The father says that it is proper for there to be a continuation of the shared parenting arrangements which had been in place pursuant to orders made on an interim basis by me, but that if that shared care arrangement, pursuant to the orders of 18 March 2009 were not to be continued, then the appropriate course to follow would be for the child to live with the father but to spend significant and substantial periods of time with the mother.
I also had the opportunity of assistance provided by an experienced independent children's lawyer. The independent children's lawyer has provided significant information in relation to these proceedings and, in fact, at the commencement of the hearing, indicated that, subject to the evidence that might fall in relation to the proceedings, the independent children's lawyer’s view, and it had been advised to the parties and their legal representatives, was that orders should be made generally in the following terms:
·that the child should live with the mother in Mackay;
·that the mother should have sole parental responsibility;
·that until the child commences preparatory school in 2012, that the child should live four weeks with the mother and one week with the father in each five-week period, with the mother to be responsible for transportation associated with both the delivery and collection of the child.
It was also proposed
·that from the commencement of the academic year 2012, that the child should spend half of the school holidays in each gazetted school term with the father and that there should also be the opportunity for the father to spend one weekend per month in Townsville with the child and one weekend per month in Mackay with the child.
·that the mother be responsible for the delivery and collection of the child from Townsville, but obviously for the father, if he were to travel to Mackay, to be responsible for his own arrangements in that regard.
There were general proposals also put forward with regard to each parent having the opportunity to communicate with the child by telephone when the child was not in their care.
That position was, as I say, outlined at the commencement of the proceedings being heard on 25 May 2010, but by the conclusion of the proceedings, the independent children's lawyer’s position was significantly varied. Where previously there had been a proposal, until the commencement of preparatory school in 2012 for one week in five, the position of the independent children's lawyer at the conclusion of evidence was to suggest that the child should spend:
·six periods a year of one week at a time, upon giving the mother 28 days notice of an intention to spend such time with the child, and;
·upon [X] commencing preparatory school, the father was to spend all of the Easter holidays and one half of the June/July and September/October holidays with the child and to spend two one-week blocks with the child in the Christmas holidays, until the commencement of year 6, and thereafter, to spend one half of the Christmas school holidays with [X].
As can be seen, there is a very significant reduction in the independent children’s lawyer’s proposals for time to be spent by the child with the father, including both the frequency of time to be spent, until the commencement of [X]’s attendance at school, and again, particularly with regard to the Christmas school holiday period, until [X] commences year 6, which is, of course, a year in which she would be turned 11 years of age.
There is, therefore, a seven year hiatus where the independent children’s lawyer suggests that there should be no more extensive periods of time spent with the father, than a one-week block.
There was much in this matter which, obviously, gave rise to significant difficulties in relation to determination. I had the opportunity and, as I have already indicated, assistance from a most experienced independent children’s lawyer and counsel assisting the independent children’s lawyer in relation to this matter.
The independent children’s lawyer arranged for reports to be made available in relation to the proceedings, both by Dr B, a consultant psychologist, whose report is dated 6 August 2009 and is annexed to her affidavit of 23 April 2010, as well as a psychiatric assessment in relation to both parents provided by Dr M, and her report is dated
28 October 2009 and, again, is annexed to an affidavit by her of
23 April 2010. I shall, obviously, come to their evidence in relation to these proceedings in due course.
Additional to the parties, however, there was also evidence called from the mother’s mother, the maternal grandmother, Ms S, and from the father’s perspective, there was also an affidavit under the hand of
Mr R, who commented about issues in relation to the capacity for persons to “hack” into computer records and files, of various parties. Mr R was not required for cross-examination, but I will, of course, comment on his evidence in relation to this matter in due course.
The most significant evidence in relation to these proceedings, notwithstanding the very significant nature of the comments and recommendations that were made by the experts, Drs B and M, was, of course, the evidence of the parties themselves. I will turn to their evidence in due course in relation to these comments.
Before addressing the evidence of the parents themselves, however, I would comment in passing upon the evidence of Mr R and Ms S.
Ms S filed an affidavit on 19 April 2010. That affidavit speaks of her observations of the relationship between the mother and the father and, in particular, her knowledge of what she says was the violent nature of the relationship between the parties, as well as her own observations of incidents, both before and after separation, between the mother and the father.
Ms S details the exchanges that she also noted between the father and the mother’s child of a previous relationship, [Y]. She indicates that they were of a most inappropriate nature, and, says that prior to separation, the child [Y] had come to live with her of her own volition, because of concerns about the issues existing within the household of the mother and the father.
Ms S makes comments about what she says were violent altercations, between the father and her de facto husband, Mr B, and makes reference to a number of incidents in January of 2009, at or shortly after the time of separation between the mother and the father.
Ms S was cross-examined at length in relation to many of these particular episodes and certainly was able to be shown to be an inaccurate recorder of dates and times. She also, perhaps, in her affidavit to which I have already referred, gave more information than what her own observations might have been, particularly when commenting upon what she says occurred between her de facto husband and the father, in January of 2009.
Notwithstanding those inaccuracies, however, there was a genuine and I thought consistent element of truth and legitimacy in what Ms S spoke of. She acknowledged very early on that she had gotten all of her dates mixed up and that, no doubt, the whole situation was one that was very trying for all concerned. It was clear that Ms S had become upset when giving evidence in relation to the matter, and I must say that I certainly gained the impression that the concern that was shown by her was genuine and that her upset in relation to cross-examination was in no way feigned or untrue.
It was clear that Ms S was supportive of her daughter, but her evidence also, as I have indicated, had a ring of truth about it. She spoke of comments made by [X] relating to things that had been said to her by the father and, in particular, made reference to [X] telling her that Daddy calls Mummy and Grandma ‘shitbag’.
It is a noteworthy comment in relation to these proceedings, because it is a term that recurs throughout some of the other evidence, in relation to what is said to be intimidating, abusive, or harassing behaviours, on the part of the father.
In cross-examination by counsel for the independent children’s lawyer, the grandmother was asked about the life that she, her husband, and in more recent times, the mother, [Y] and [X] had had, as a result of actions by the father. She indicated that the police had regularly been at their residence subsequent to separation and that there were occasions where that had arisen as a result of what could clearly be considered to be harassing and intimidating behaviours by the father.
She indicated that the Townsville house had been sold by she and Mr B and that it had been placed on the market because of the harassment that they had experienced. She made a telling reference to the fact that another factor that influenced them to sell, was that the child [Y] was terrified. Speaking about those particular incidents, and there were a number, she alleged that the father had been at the house riding his motorcycle on lawns, that he had set firecrackers off at the front of the house in the late evening at about 11pm, that there had been intimidating behaviours including postcard drops at the child’s school and at the State Magistrates Court complex, as well as the erection of a most unpleasant sign at the father’s residence. That had led to real concerns about the wellbeing of the child [Y] in particular, but, of course, by extension, [X] and, in fact, the whole family.
Ms S became tearful when speaking of the effects upon the family and, in particular, the child [Y] and spoke of [Y] shaking and being inconsolable as a result of various matters that were occurring. She made a comment in relation to the situation which seems apposite, in light of the evidence that she gave. She said, “We just didn’t want to live like that any more”. It would seem that if even some small proportion of what the maternal grandmother says was occurring, and, of course, it is corroborative of what the mother says were the behaviours of the father, then one can well understand the concerns about the continued residence in Townsville and the effects upon the child [Y], but, as I have said, by extension, upon all members of the family.
I was most impressed with Ms S. I thought her a honest witness and one, who was whilst perhaps imprecise in relation to dates and matters of that nature, was clearly able to give evidence of a compelling nature in relation to what she had observed and what had been experienced by the mother and by extension, other members of the family.
The only other evidence called, other than the expert evidence by
Drs B and M or from the parties, was the evidence of Mr R. Mr R indicates in his affidavit filed 16 September 2010 that he holds a bachelors degree in commerce as well as masters degrees in business administration and information technology. He speaks of his experience in being responsible for the management of small business computer networks for a period of some 15 years, and the indication is that he has particular expertise in relation to computers and matters relating to computers.
Mr R speaks generally of issues in relation to Facebook and the fact that there have been security issues since the inception of the Facebook site, such that there has been need for constant review and updating of security procedures. He speaks of the necessity for a user of the Facebook system to systematically go through security controls and to set them to the desired security levels. He speaks of the fact that the tightening of user controls, and therefore the sharing of information, would affect the openness of the Facebook database and that therefore, there are not the security measures that could be in place.
He speaks of the simple nature involved in establishing a Facebook page and that once there is a valid email address provided and the site has been provided with personal details, there is no other formal identification, other than responding to an email that might be required, in relation to the operation of a Facebook page.
He indicates, quite understandably, that it is therefore a simple process, if information is known, to masquerade as another person using Facebook. Mr R speaks particularly about the possibilities of hacking into Facebook pages or downloading information from Facebook pages of other persons.
Whilst I accept that Mr R has that expertise, his information, of course, does not in any way assist in relation to the determination of this matter, particularly in regard to whether there is any evidence of anyone having hacked into or in any way interfered with the father’s own computer network.
It is important that that distinction be drawn, because, of course, there are serious issues raised, particularly in the mother’s material, as to the father allegedly having taken over the operation of her Facebook page and then to have inserted numerous items, including both derogatory comments as well as photographs, which have meant the mother and, by extension, the family on the mother’s side, have been experiencing humiliation and embarrassment.
The father simply denies that he is responsible for any such actions, and, in fact, it was suggested that if certain images which were on the mother’s Facebook page and which were drawn from his computer were placed on the mother’s Facebook page, then it had occurred through hacking by other persons and that if a very long bow were to be drawn in relation to this matter, that in fact it was the mother who had placed this information on the Facebook page so as to give rise to the suggestion of inappropriate behaviours by the father.
The evidence of Mr R, however, goes nowhere to assisting in relation to that particular aspect of the matter. Whilst he speaks in general terms of the possibility of such matters occurring, there is no evidence one way or the other in relation to this matter, at least of a precise or professional nature, which would give any indication as to whether the father is responsible for the inclusions that are made on the mother’s Facebook page or whether the mother or some other person has been responsible for their inclusion on her Facebook page, for ulterior motives.
Whilst I accept Mr R’s expertise in relation to this matter, there is little from his affidavit evidence, which, of course, was unchallenged, which can in any way assist in relation to the determination of whether the mother or the father or other parties, have been responsible for various actions that have occurred, during these proceedings.
It would normally be my practice at this time to refer to the evidence of the experts, before commenting upon the evidence of the parties to the proceedings themselves. In this instance, however, it is important there be a clear understanding of the positions that have been taken by each of the parties, so that the evidence of the experts can be more fully appreciated, in relation to the background that leads to the opinions and recommendations that they have made.
I should say, therefore, at the outset of comments in relation to the evidence of the mother and the father, that there is much contained within their evidence, which gives rise to concern in relation to the future arrangements with regard to this little girl.
Quite clearly, there are serious allegations and, in fact, admissions now made, with regard to drug use and abuse, as well as the far more serious concerns that arise with regard to the sale of drugs and involvement in what might be more broadly referred to as, “the drug culture”. There are also serious allegations made in relation to issues of domestic violence, certainly being alleged by the mother in relation to the behaviours of the father, and from the father’s perspective, serious allegations made in relation to the mental stability and health of the mother, as well as of issues with regard to the vindictive and manipulative nature of the mother and of the fact that, if the father’s position were to be accepted in relation to this matter, that the mother has systematically set out to denigrate him, to falsely accuse him of most serious actions, and if, as suggested by the father, that she is the arch manipulator and controller that he suggests, then to seriously mislead the court, in relation to issues that are the subject of determination.
I turn firstly to the evidence of the mother in relation to this matter and note, of course, the evidence that she has given in relation to the proceedings. The mother was given leave at the commencement of proceedings to in fact adduce some further evidence in relation to what she says were examples of the father’s domestic violence, as well as his intimidating and aggressive behaviour. Subsequently, the mother was then cross-examined at length by both counsel for the father, as well as counsel for the independent children’s lawyer.
Clearly, there were issues that gave rise to concern, in relation to the mother’s behaviour. Quite simply, from March of 2009, the mother was aware of the orders which provided for equal time to be spent by each parent with the child, [X]. However, notwithstanding her knowledge of that and, of course, the obvious consequences for the child if she were to make a move, the mother in early 2010 left Townsville without the father being aware of that and subsequently continued what might be called a subterfuge, so as to continue the father, and no doubt in the early stages, the court, being of the belief that she continued to reside in Townsville.
What in fact had been occurring, however, was that the mother had been travelling between Mackay and Townsville at the times of drop off and collection, so that there was no indication of what might be, in fact, her real residence, along with the child.
It was of concern that the mother knew that this would be an issue that would be commented upon in relation to the proceedings, but it would seem that for some significant period, certainly at least for a few months, there was no real indication of the fact that she had made a move and that there were obvious consequences therefore, for [X], as a result of that move. There were also issues of concern, in relation to much of the mother’s evidence with regard to her own behaviours, and her state of health.
The mother had made admissions in relation to drug use by her during the relationship, but says that at the time of separation, around January 2009, she ceased using drugs and that she had remained “clean” ever since. However, on a recent occasion, when an approach was made through the independent children’s lawyer for there to be a drug analysis attended to, it was clear that the mother had not immediately taken steps to have a drug analysis done, and, in fact, a period of some 15 days or so passed between when she became aware of the requirement for drug testing to be done and when, in fact, that had occurred.
It was clear that the inference that could be drawn from that particular aspect of the matter was that the mother in fact had not been truthful in relation to drug use and continued drug use, subsequent to separation in January of 2009 and that the reason that she had not cooperated with the immediate request for the provision of a sample for analysis, was that it would show that there were still within her system, many months after she says she stopped taking drugs, quantities which would be able to be recorded.
The mother could not explain her delay in relation to having the drug analysis done, other than to indicate that she had been busy and had not gotten around to having the test done. It gave rise, obviously, to concerns in relation to the mother’s veracity in relation to these various issues.
It was also the case that concerns in relation to the mother arose with regard to the very serious allegations of domestic violence that had been made. Certainly there was some evidence of reports to the police taken at different stages, but there was clearly a concern as to whether the mother was full and frank, in relation to the matters that she raised with the police and more particularly, the matters that were put before the court, in relation to these issues.
In particular, the mother made reference both orally and in her affidavit material to serious assaults being perpetrated upon her and that she had experienced, as a result of the domestic violence of the father, bruising, cuts and broken bones, as well as other indicators of domestic violence. There was, however, no indication whatsoever of there being medical evidence in relation to that or corroborative material from others, other than her mother, Ms S, who made reference to certain observations that she had in relation to the outcomes of domestic violence, perpetrated upon the mother.
Most glaring of all, however, was the suggestion by the mother that on one occasion she had been the subject of what was tantamount to a kidnapping by the father, who had attended at her place of work with a weapon, being a handgun, and that she had been forced to leave her workplace. There was no evidence whatsoever in relation to that, certainly nothing of a corroborative nature, though one would think that there must have been some persons somewhere who would observe such behaviours on the part of the father.
In respect of that aspect of the matter also, I must say that there are concerns that I would hold in relation to the genuineness of many of the statements that are made by the mother, in relation to this matter and would simply comment that there does appear to be a significant degree of exaggeration, particularly in respect of aspects relating to the physical consequences of the domestic violence that the mother alleges was perpetrated by the father.
Notwithstanding those issues, of course, it is clear that there were still certainly indicators of the mother being able to very properly provide for the child. Both Dr B and Dr M commented upon the apparent robust good health of the mother, and perhaps as support for what the mother says is her position, particularly with regard to a cessation of the use of illicit substances, is the fact that Dr M, a most experienced medical practitioner and psychiatrist, did not note any indicators of what would be suggested to be continued or ongoing drug use.
That is not to say that, of course, having been a drug user in the past, there is not the possibility of relapse, but there did appear to be some positives in relation to the mother’s determination, in relation to getting her life in order so as to provide not only for herself, but, of course, for her daughters, [Y] and [X]. That is indicated in particular by the fact that the mother is involved in a course of study and noted at the commencement of her evidence in these proceedings that she was studying [omitted] and had previously had work both in [industries omitted].
The mother also was able to show that she had the support of her family and that that clearly had provided a stable and settled environment for both she and her children.
The mother was generally impressive, in relation to her intentions with regard to the future of the relationship between [X] and her father. The question, in various forms, was asked of her on a considerable number of occasions by both counsel for the father and counsel for the independent children’s lawyer. The question related to the mother’s intention with regard to the fostering of the relationship between [X] and her father, as well as her desire for the child to have the opportunity to spend time with the father.
The mother, though she said she was very concerned about her own wellbeing and, to some extent, the possible wellbeing of [X] over time, in light of what she thought were indicators of the father’s behaviour, did not seek to preclude the opportunity of time being spent by [X] with her father, nor did she suggest that there was a need for supervision, in relation to such time. Rather, she suggested that there should be a settled or stable routine in relation to the child and that that could best be met by there being a primary residence for [X] with one parent and, of course, the mother suggested that that should be with her in Mackay, where the mother had both family support and, she says, a more secure and stable environment, as a result of being away from the father, and therefore away from what she says was his intimidating and overbearing behaviours as well as, if she were to be believed, the domestically violent situation which had continued, even after separation.
The mother impressed me in that regard, with respect to her determination to provide for [X] and, of course, also for the child [Y], but to still ensure that [X]’s right to a relationship with her father and her brothers, as well as other members of the father’s family, was able to be facilitated.
There were positives to be seen in relation to the mother and her intentions in relation to these proceedings, though, of course, there were, as I have already indicated, a considerable number of issues that gave rise to concerns as to the mother’s appropriateness or capacity to meet the various needs, particularly in relation to a very young child.
Whilst I have no doubt as to the mother’s love for [X] and the clear indications of [X]’s love for her mother, there are ongoing concerns that must exist, in relation to aspects of the mother’s life, certainly in the past, though there are good indicators of her intention to provide a far more stable and regular environment for the child, now and into the future.
Having made those comments in relation to the mother and there are issues of concern that arise in that regard, I turn now to the father and to his evidence in relation to this matter. I must say, unfortunately, that whilst there were concerns held in relation to the mother and to her behaviours and attitudes in respect of the past relationship, as well as to some extent the ongoing interaction between she and the father, they pale into insignificance when one considers the issues in relation to the father and the very real concerns that exist with regard to the father.
I do not intend to seek in these reasons to tear the father down, but his evidence and behaviours in relation to this matter, clearly indicate that his character is one which gives rise to concern. That is not to say that he does not love his daughter and that [X] does not love him. Quite clearly their relationship is close, and it is to his very great credit that he has clearly sought to maintain his relationship with the child and to foster and develop that in any way that can be seen.
Notwithstanding that positive, however, there is much that gives rise to enormous concern in relation to the father. As I have indicated, there were issues in respect of drug use within the relationship, and whilst the mother made certain admissions early on, in relation to her drug use, the father was far more reluctant to make any real admissions in relation to drug use or, in fact, other behaviours of an anti-social or criminal nature, and the provision of evidence in relation to such matters, was of very great concern.
The household that the father established, albeit with the concurrence and it would seem the assistance of the mother, was a home which appears to have been established more as some form of fortress, than residence which would be welcoming or open. Quite clearly, the positioning of some 11 or 12 video cameras throughout the home, and around the outside of the residence, as well as in the shed, which appears by agreement to have been utilised for drug sales, can only indicate that both parties but, I must say, I would think primarily the father, was obsessive about protecting them, their activities and ensuring that there was no breaches of security which would lead to embarrassing circumstances, particularly in light of the admissions now made, with regard to the use and sale of illicit substances.
The father’s evidence, eventually given in relation to these proceedings, was that he was involved in the sale of amphetamines and methamphetamines, though it appears clear that the mother also had some involvement in those activities. Whilst security is not necessarily an issue which would reflect poorly on a particular party in relation to family law or any other proceedings, in this particular instance, there is an element of “overkill”, if I can describe it that way, which gives rise to a concern as to the father in this instance particularly seeking to ensure that his activities were secured and that there was no chance of an unknown or unwelcome intervention in his property or in his illicit dealings.
It is important that that particular notation be made in relation to the matter, because the father, at one stage, made reference to the possible hacking of his computer or, in fact, an intrusion at his residence so that other unknown surveillance equipment could be established, from which it could be suggested other photographs were obtained, including those which showed the mother using a bong for the consumption or use of drugs.
I would simply say that I wholly reject that hypothesis, and it is only a hypothesis, in relation to this matter. The father’s security arrangements were extreme, and there is no possibility one would imagine of there being hacking of his computers, as well as the establishment of other unknown surveillance equipment for the purposes of watching the father and/or the mother within the residence. To suggest that some other persons, including persons met on one occasion by the father, namely, Mr J and Mr C, might have been responsible for the establishment of such arrangements is, without doubt, palpable nonsense.
I must say, that the distinct impression I gained as the father gave evidence in relation to other persons who might have hacked into the mother’s Facebook or hacked into the father’s computer facilities or, entered into his property to set up alternate surveillance equipment, was that it was fantasy and was clearly what could only be described as evidence made up by the father on the run.
I was troubled enormously by the father’s evidence. He was a large man, and I have absolutely no doubt as to the intimidating nature of his behaviours, both physical and emotional, toward the mother.
It is clear, that where the father could not, because of other corroborative evidence given in relation to proceedings, deny that certain actions had been taken, for example, the erection of the disgraceful sign outside his home, then he acknowledged that he had done so, but if there could not be some other form of third party corroboration in relation to certain activities, then he simply blankly and continuously denied any responsibility in relation to such activities.
As I say, I do not intend to go at length into the evidence in relation to this matter but find that on every occasion that there is a discrepancy between the evidence or position of the mother, in relation to issues such as domestic violence as opposed to the evidence of the father, I without hesitation find that the mother’s evidence is more reliable and certainly a more accurate reflection of what occurred, during the relationship.
I find in light of the evidence and there being no other plausible alternative, that the father was responsible for the damage to the maternal grandparents’ lawn when a motorcycle damaged the wet grass. I find that the father set off firecrackers late in the evening, simply for the purposes of harassment and intimidation. I find that the father was domestically violent and intimidating toward the mother.
I find specifically that the father and no other person was responsible for the hacking into the mother’s Facebook and the establishment there of embarrassing and humiliating photographs of the mother as well as the disgraceful insertion of various terms, which were seen on the Facebook pages. I find that the father harassed the mother, intimidated the mother and set up the mother in every way that he could, to ensure that she was constantly fearful for herself and/or her family.
I find particularly and horrendously that it was the father who prepared and distributed various postcards which had a montage of photographs of the mother using drugs as well as other photographs of a generally pornographic nature and that he inserted into those defamatory and embarrassing statements in relation to the mother. I find that his suggestion that some other third persons, perhaps “Mr J” or “Mr C” or even others were responsible for that, is a fabrication in the extreme.
I find that the father has failed to have any recognition, inkling or concern as to the effect, not only upon the mother of the behaviours taken by him, but to have left such postcards at and about the school of the mother’s older child, [Y], such that the child was distressed, humiliated and embarrassed, was a matter of extreme concern and gives rise to very real issues in relation to the father’s capacity to fully recognise or even appreciate the consequences of his actions, upon other parties.
Significantly, that particular position in relation to this matter was obvious from the evidence that was taken, in relation to the setting up of the sign outside the father’s residence. The suggestion by him that it was erected by him, but only in response to what he believed were intimidating or unreasonable actions on the part of the mother through chat room conversations, was a nonsense that could not be justified even when the father attempted to show that there was some form of communication that he was able to print showing the abusive nature of the chat room conversations relating to him.
There was absolutely nothing that could be drawn from what could only be described as “gobbledygook” contained within the pages that the father produced in relation to what he says was the abusive exchanges on chat pages directed toward him, and in any event, there does not appear to be one skerrick of evidence to suggest the mother was acting in such a manner or was, in any event, even involved.
The father’s reaction, however, in erecting the sign in the shape of an erect middle finger outside his home naming the mother and making, again, and noteworthily, in identical word patterns, disparaging, disgraceful, humiliating and embarrassing comments in relation to the mother is troubling enough, but what is of even greater concern is the fact that the father, when questioned about the effects upon his own sons, the child [Y], and, most particularly, [X], failed to appreciate the consequences of his own actions.
A series of questions was directed toward him by the independent children’s lawyer, relating to the effects that might be felt, as a result of the erection of those signs. The independent children’s lawyer, through her counsel, inquired whether the boys, [Z] and [J], might have been hurt by the erection of the sign and its contents. He said that he did not think that that would be the case. He was asked whether the boys might have been embarrassed by the sign and responded similarly, that he did not think that there would be any issue.
He was asked whether neighbours who had seen the sign might have spoken to the boys about it, and he said that he did not know. He was asked whether he had thought about what the boys’ friends might think or say to the boys, and he responded that he had not considered such issues.
He was asked whether he had thought about how the erection of that sign and its disgusting connotations would affect [X], and his response was, I thought, telling in that rather than thinking in the greater perspective about the effects upon the child, his simple indication was that, “she could not read.”
It was of concern also that this sign related to the mother and, of course, that its contents would be of effect upon [Y]. His response in relation to that was to simply say that the child was no longer at the house but that he, “Didn’t think about it otherwise.”
It was a disturbing set of questions and answers in relation to the issues that arose in relation to the matter.
I gained a distinct impression that the father was entirely reactive in relation to matters such as this, and that his perspective was to act either pre-emptively in relation to hurting the mother, or even if his evidence were to be believed, in relation to suggesting that the mother were involved in some form of chat room denigration of the father, which I do not accept, then his attitude was one simply of lashing out, of hurting the mother, and that collateral damage including his sons, daughter and step-daughter, were matters that did not even occur to him.
I was enormously troubled by the father and his evidence in relation to this matter. I thought that the father lacked what might be called a moral compass or direction in relation to his behaviours. I gained the distinct impression that the father thought only about himself and showed little emotion or concern, in relation to the consequences of his actions upon others. That obviously was emphasised by his lack of appreciation of the enormous hurt caused to the child, [Y], as a result of his behaviours, particularly with regard to the distribution of the postcards outside her school.
More particularly, it was troubling that evidence which became available during the proceedings, and particular in the latter days when the matter had previously been adjourned, was that a somewhat innocuous breakdown in the relationship between the father and one of his sons had led to the child going to his mother’s residence, notwithstanding that the child had primarily lived with him for a period in excess of 10 years, and yet he had not followed up, with regard to the child.
He had sought no opportunity to speak with the boy to deal with the issues of concern and to provide a stable and settled environment, so as to ensure that the child’s best interests were met. It appeared clear that the father had little appreciation of the consequences of his actions upon others, including his own children, and had little, if any, recognition of the fact that his own actions could be so terribly damaging to others, including his own children.
I was enormously troubled by the evidence of the father in relation to this matter. I gained the distinct impression that he would say and do anything that he felt would be justified, as a result of some sleight or other action which was contrary to his interests.
He was, in my assessment, without doubt one of the most troubling parties to have come before me in more than 10 years of proceedings, because of the fact that there was little appreciation by the father of anything other than his own wishes, wants and determinations in relation to arrangements with regard to the future and that anyone who crossed him would be seen as an enemy, to be cut down as quickly as possible.
I found, as I have indicated, that the father lacked what I might call a “moral compass”. He had no appreciation whatsoever of the possible hurt or harm that could be caused as a result of his actions but acted purely and entirely in his own self interest. It was a factor in relation to this matter and to the evidence that was given which was of enormous consequence, in relation to the determination.
Having made the comments that I have made in relation to the parties’ evidence, I turn now to the evidence of the experts, particularly the oral evidence that was taken from both following the opportunity that was given for each to consider the report prepared by the other, in relation to these proceedings. Having addressed the various issues that arise, with regard to each of the parties, it is easier then to consider the evidence that was given by the two experts, Dr M and Dr B.
As I indicated earlier, Dr M’s report was filed on 23 April 2010, but the report itself was in fact dated 28 October 2009, and interviews with both the mother and the father were conducted a few days prior, on 23 October 2009. Dr M was cross-examined at length about issues contained within her report.
She was asked about her understanding of each of the parties’ drug use, and noted that there were certainly admissions by the mother in relation to the use of drugs, but that it was not so clear that the father had made such admissions. Dr M had, in her report, raised concerns about the parties and their interaction with each other and in particular she made reference to what appears to have been a quite unpleasant exchange between the mother and the father at the time of the interviews, arising, it would seem, from the circumstances relating to the handing over of the child, [X], from one parent to the other.
In the section of her report headed “Opinion” she makes the following comments:
Neither party exhibited a psychiatric disorder. However, each describes a relationship which appears to have caused considerable unhappiness to each party. Ms Sardella expressed considerable fear of the father to the extent that she believes he has threatened her life. Her demeanour was congruent with the material that she was presenting. She enumerated several abusive instances some of which could be tested in Court and she provided photographs which lends some support to her claim that Mr Makovich has at least publicly humiliated her. At interview she displayed considerable agitation.
The incident which I observed between the interviews demonstrated that in my view the mother was appeasing and the father controlling and angry. I felt the interchange in front of the child was not appropriate and likely to cause distress to the child.
In his interview with me Mr Makovich denied Ms Sardella’s accusations against him. He acknowledged that he still retains feelings of affection for her and remains emotionally involved with her.
The histories of each parent are mutually contradictory and obviously I cannot comment on matters of fact which must be determined by the Court. However, I note that Ms Sardella has been granted a domestic violence order against him and it was my impression that her fear of him was not simulated.
In the circumstances it is my view that shared care is not appropriate. I would recommend that the child live primarily with the mother and that she be allowed to relocate to Mackay. The question of Mr Makovich’s contact with the child should be informed by any findings made by the Court in relation to the mother’s allegations.
Dr M obviously had concerns in relation to these parties. She had concerns as to their dealings with each other, concerns particularly with regard to their capacity to communicate with each other, concerns clearly arising from the mother’s allegations of domestic violence, threatening and harassing behaviours by the father, and noted in particular that the mother’s reactions to the father were clearly ones which she believed indicated a fear of the father.
When cross-examined about issues with regard to domestic violence and harassment, Dr M noted that the mother had raised those particular concerns with her. She confirmed further that she had discussed the allegations raised by the mother with the father, and that he had denied the problems at changeover, and denied generally that there had been anything other than verbal exchanges between them.
Dr M however noted that she did not believe that the mother’s fear, as observed by her, was in any way exaggerated but was a real manifestation of the mother’s concern, in relation to dealings with the father. There were issues that clearly gave rise to concerns for Dr M about the issue of domestic violence, and more particularly if you like, the father’s attitude to issues of domestic violence. When speaking about its effect upon children, she indicated that she had a concern about the effect of domestic violence, including simply verbal exchanges between the mother and the father, and its effect upon the child.
She noted that it was clear that such exchanges and such experiences by the child [X], could have a significant and detrimental effect upon her, but noted that the father had no appreciation of the consequences of such actions. He appeared generally to feel that he was the victim. Dr M noted, on a number of occasions, that the father felt that it was he who had been wronged when domestic violence allegations had been made, and in fact when the Court having heard such matters, had in fact determined that there had been domestic violence.
It was clear that the father had no appreciation of the consequences of such exchanges or interactions upon, not only of course the mother, he saying that she had no reason to be fearful of him, but more particularly had no appreciation whatsoever of the longer term or collateral effects of the domestic violence, as perpetrated between the mother, and the father. Quite clearly the father, as I have indicated already, felt there were no consequences that he would be aware of or could consider as arising from his actions upon [X], [Y], his sons or extended family members. It was clear that the father was lacking insight and lacked any appreciation of the consequences of his own actions.
Dr M was asked about whether there was, therefore, any indicators of a psychiatric disorder in either of the parties, but particularly with regard to the father, and so far as the father was concerned, she indicated that she did not note behaviours or indices, which would give rise to concern that there was a psychiatric disorder. However, she did go on in cross-examination to indicate that she did feel that there was a “personality disorder or disorders indicated” and that the father was clearly showing aggression, and aggressive behaviours to others.
She was asked whether the father was insensitive to other people’s feelings, and if you like, to the consequences of his actions directed toward them, and she indicated that this was the case, and that if anything the father saw himself as the “wounded party”. Dr M repeatedly expressed concerns that the father’s anger, and his failure to appreciate the consequences of his actions upon others was a significant issue, and it gave rise to real concerns that the father had difficulties, with regard to impulse control.
Dr M was specifically asked whether, holding such concerns, there would be a concern held by her as to the father’s ability to parent a young child, and without hesitation she indicated that that would be the case and that if anything, as the child grew older, and perhaps more determined to express her own personality or views, that the challenges would increase.
Insofar as the considerations relating to the mother’s mental health were concerned, Dr M again indicated that there were no specific indicators of a mental health disorder, but again there were matters that gave rise to concern. Dr M commented about the mother’s admitted use of illicit substances, and that that can obviously have an effect upon a person’s general mood and health, including of course, their mental health.
She spoke also of the fact that there were indicators of the mother suffering from post traumatic stress disorder. She indicated that such indices included, her avoidance behaviour, her irritability, her hyper vigilance, and issues of that nature, which gave rise to concerns as to the mother’s relationship with the father, and her genuine fear of the father that had given rise to these concerns.
Dr M was asked about the parties’ capacity to communicate, as she indicated in her report that there was little capacity to communicate and little hope held by her that there could be improvements in that regard. In cross-examination, Dr M reiterated that concern and when asked whether in fact there might have been the possibility of improvement, it being clear that a considerable time had passed since the writing of her report, and that there was little complained of in relation to the recent interactions between the parties, she indicated that notwithstanding that situation, she felt that there was a “fairly gloomy outlook about communication”.
Dr M was adamant that, if there was a requirement for equal shared parental responsibility, then as she put it, she would “fear that any decision to be made about the child would be a ground for further conflict”. She indicated that her concerns related to both parties, and their capacity to interact and communicate with the other, but that her primary concerns, related to the father.
In particular, Dr M, not being in a position to make findings about the allegations made with regard to domestic violence, controlling and harassing behaviour, and antisocial behaviours on the part of the father, other than of course to comment about the erection of the sign that the father put on his fence, was asked what would be her recommendations in relation to future relationships between each party and the child, if it were found that the allegations relating to the mother were true or that the allegations relating to the father were true, she noted that she had a different view in relation to each possibility.
She indicated that if the allegations relating to the mother were true and that the suggestions made by her with regard to the father were in fact fabrications, then that the child should only have limited opportunities to spend time with her but that time should still be available. However, Dr M went on to suggest that if the allegations made in relation to the father, and his behaviours were found to be true, then that the time that the child should spend with the father would need to be significantly curtailed, and in fact consideration would have to be given as to whether there should be any personal contact whatsoever.
Dr M said that there was a delicate balance to be looked at in relation to such considerations, because if there were no time to be spent with the father, then there would be serious implications relating to the child’s mental health and development, and that the child would be deprived of paternal love and modelling, but by the same token, it appears clear that Dr M’s view was that if all of the allegations or the vast majority of them relating to the father were true, then there would need to be serious consideration of the father not having any relationship of a continuing nature with the child.
Dr M would not be pressed in relation to a firm view in respect of what should or should not be ordered in relation to this matter, being mindful of course that she had not heard all of the evidence that had fallen in relation to matter. But it was clear that Dr M had very real concerns in relation to the effect upon this child of domestic violence, and the effect upon this child of the continued lack of courtesy, respect and civility between the parents, as well as the obvious issues of concern that arose with regard to the child’s behaviours at the time of the handover at her rooms, which was effected at the time of the interviews.
Dr M noted, both in her report and in oral evidence, that the father appeared suspicious of her, and the questions that she was asking, and in fact displayed what she referred to as “a disparaging attitude to the mother”. There were real concerns held by Dr M about the father’s behaviour, and she noted at interview with the father that he “simulated a lack of comprehension of simple questions and demonstrated barely veiled hostility”. She went on to say, that in her opinion, the father was evasive and suspicious in his history, and some of his more paranoid utterances were difficult to understand.
Quite obviously Dr M was troubled by both parents but particularly troubled by issues in relation to the father, his behaviour toward her, and her observations of the father’s attitude to the mother. Toward the end of her cross-examination Dr M was challenged about what she had seen or specifically observed, at the time of the handover during the interviews. Dr M conceded that there were some aspects of the interchange, which was only viewed by her peripherally, but what was noteworthy was that an experienced psychiatrist, such as Dr M, suggested that the child had become “habituated” to the exchanges, which were unpleasant between her parents.
Dr M used that term on more than one occasion, and noted from her observations that she gained the impression that [X] had seen such exchanges before, and that the child exhibited a “weariness and acceptance of such exchanges”. It was troubling evidence, and I must say did not auger well for the future.
I was impressed by Dr M’s report, and by the evidence that she gave orally in relation to this matter. I note that she quite properly, and quite professionally, acknowledged that there would be occasion for the Court to consider all of the evidence that fell in relation to this matter, but that if there were specific findings one way or the other, then there would be an obvious consequence in relation to the orders, which would be appropriate, in relation to the proceedings.
I turn now to the evidence of Dr B. Dr B is a consultant psychologist with a very significant experience in the assessment of families and preparation of reports. Dr B’s report is annexed to her affidavit of
23 April 2010, but the report itself is dated 6 August 2009. That report was prepared prior to the incident, which gave rise to the father’s erection of the sign on his fence. Dr B and Dr M had had the opportunity to interact with each other, to consider each other’s reports, and to, at least in Dr B’s instance, hear the evidence that was given by Dr M.
Dr B it should be noted, however, did not have to any significant degree, the concerns about the father that were raised by Dr M. In particular, Dr B commented that her exchanges with the father were of a generally courteous and pleasant nature, though she did raise a concern, not so much as to the father being avoidant in answering questions, but rather that he was somewhat confused or jumbled in the statements that he made, and in particular, when he referred to certain of the chat room exchanges, and produced documentation to her that it was what she described as “gobbledygook”, whilst the father seems to interpret the contents as something very different. It was an issue of some concern, because it was a very different impression to that which was put forward by Dr M.
Dr B had the opportunity to observe [X] with each of her parents. She noted that there was a very positive relationship between each of the parents, and [X] and that she saw that the child was closely bonded to each of her mother and her father. She did however comment about a number of the issues which arose in relation to this matter. When speaking about the issue of family violence she seemed accepting of the fact that there was violence within the relationship, perhaps perpetrated by each toward the other, and that it was a factor which needed to be considered. She also noted that there were, in her assessment, very real difficulties in relation to communication. Under the heading, “The co-parenting relationship” at paragraph 45 of her report, she said the following:
Ms Sardella was adamant that she was unable to communicate or co-operate with Mr Makovich about their child’s well-being. However, she related that she promoted [X]’s relationship with her father by encouraging her to talk with him on the phone about her daily activities. As well, she would tell her to sing to him. She “never spoke anything bad about him”.
It was clear that Dr B had raised such issues with the mother, and that she was adamant that there were real difficulties in that respect. However, when commenting about the co-parenting relationship from the father’s perspective, she noted at paragraph 77 the following:
Mr Makovich stated that he could not cooperate or communicate with Ms Sardella because she would not speak to him. However, he claimed that he encouraged [X]’s relationship with her mother by talking about her with the child.
The distinction of course, is that each appears to lay the blame for the difficulties in the relation to communication upon the other. The father, from his perspective, says that the difficulty arises from the mother’s refusal to communicate or to speak with him, and the mother’s perspective is to say the difficulty arises as a result of her fear held in relation to the father.
What is clear, is that however they may have been able to make arrangements in relation to the situation so far, there has been little if any improvement in respect of communication, and further that there is little if any respect or civility in their dealings one with the other. Dr B was particularly troubled by the fact that the father had indicated to her initially, that there was little continued emotional attachment between the two of them, certainly since separation, and yet the father’s behaviour in erecting the sign outside his home, following what he seem to suggest was some sleight contained within chat room communications, and that the mother had either instigated it, or in fact sent the comments, showed that there was a far greater concern held in relation to the association between the two parties, than was perhaps admitted by the father.
Dr B, when asked specifically about the erection of the sign and what it might have indicated in relation to the father and his behaviours, made comments that were quite telling. Dr B in that regard noted that the father was, as she put it, “very angry” and determined to publicly humiliate the mother. It was Dr B said, quite surprising that the father should have given an indication to her only some short time previous to his actions that he had no negative views or feelings toward the mother, and yet within a period of only a few weeks had erected such a sign outside his home.
Dr B agreed with Dr M’s assessment that the erection of the sign and the behaviour behind it was, “beyond the norm”. Dr B went on to say that in her many years of practice, and specialisation in the areas dealing with family breakdown, that she had not seen other examples of such serious denigration and that it was clearly antisocial behaviour of the highest order.
However, Dr B, as I have already noted, did not have the same concerns about the father, and his behaviours and consequently its possible effects upon [X], as did Dr M. Dr B noted in cross-examination that the father was avoidant. She acknowledged that there appeared to be no recognition by the father of the connection between his behaviours and effects on others, including particularly the mother.
This was exampled she said, clearly in situations where he failed to understand why the mother had obtained a protection order, or in fact had left him, as he saw no difficulties in the relationship. Dr B acknowledged certainly that there were the difficulties in communication, and noted that rather than perhaps being avoidant, there may be some physiological reason why the father was unable to remember certain things. She was unable of course, to suggest any explanation other than to speculate that it may have been something to do with his own mental health, or may have arisen from drug or other issues.
Dr M had expressly indicated that there was a concern as to the veracity or truthfulness of the father. Dr B accepted that this was a concern in relation to the matter, and that it may affect the quality of the data that she was using to consider these proceedings. She noted, for example, that the father had been misleading about the issue of drugs. He had certainly been less than full and frank about whether there were negative feelings, or feelings of any nature still held by him about the mother, when he had reacted so soon afterwards in such a dramatic manner, as to erect sign upon the fence.
Obviously the issue of parental responsibility is one of great significance. Here it is a matter which looms large because of the very divergent position of the parties. I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.”
Exactly that situation arises here. The difference between Lansa & Clovelly and this case, however, is that there was some indication that the report writer in that case was hopeful that a decision about parenting would see an abatement of the conflict between the parties. There was also evidence in Lansa & Clovelly of the fact that the parties had been able, at least in part, to make decisions and to work together with regard to the decision-making process with regard to the long-term interests of the child.
There is no such indication in relation to this matter.
Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(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 interest of the child for the child’s parents to have equal shared parental responsibility for the child.
Quite clearly, in this matter, there are ongoing difficulties with regard to parental responsibility, and whether there is equal shared parental responsibility as sought by the father or sole parental responsibility vesting in the mother as sought by the mother, and recommended by the independent children’s lawyer, is a real issue.
The independent children’s lawyer says that it is a situation clearly where the presumption of equal shared parental responsibility must be rebutted. I can only agree that that is the case. I am mindful of course of the fact that there are serious issues arising with regard to allegations of domestic violence and as I have already found there is clear evidence of at the very least emotional and manipulative violence directed toward the mother, but I am inclined to believe that there has been a far more physical relationship, than the father admits, though not necessarily as significant as might be suggested by the mother.
In any event the fact remains that there is a domestic violence order in place, that the mother has genuine fears in relation to any interaction with the father and that there would be no balance in communications if they could be arranged between the parents, insofar as determination of arrangements for the long term care, welfare and development of [X]. I am certainly satisfied that in the circumstances it is not in the best interests of the child that there should be equal shared parental responsibility. I am far more inclined to the view that the appropriate course is for there to be sole parental responsibility vesting in the mother.
Of course, having made a finding such as that, it is not necessary to specifically consider issues with regard to equal time, as sought by the father or even substantial and significant time as arises pursuant to the provisions of section 65DAA of the Family Law Act. Accordingly, I turn then to the objects and principles of the Act as set out in section 60B and to the considerations which must be looked at by a court pursuant to the provisions of section 60CC(2)(3) and (4). Section 60B is in these terms:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest 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.
Section 60CC(2)(3) and (4) are as follows:
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.
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 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.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)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; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
When considering the various matters that must be looked at, pursuant to the provisions of section 60CC of the Family Law Act, there is of course necessity to look at least in the first instance at the primary considerations, as set out in subsection 2. The first of those is to consider the child’s right to a meaningful relationship with both of her parents. Here it is clear, and was noted specifically by Dr B, that there is a very close bond that [X] has with each of her parents. She noted specifically in her report at paragraph 97 the following:
My observations of the relationship between [X] and her parents suggested she has a strong bond with each of them and their interaction with her was affectionate, educational and creative. The data suggested that both parents participated in fulfilling the child’s daily needs but both admitted that Ms Sardella took most of the responsibility for long-term needs for health (eg doctor and dental appointments; filling of prescriptions) and educational needs (eg organising day care; discussions with teachers and carers).
Dr B however went on specifically to comment at paragraph 98 as follows:
However, due to the tension and violent events that continued to undermine the parenting relationship both confirmed that they were unable to communicate or cooperate on decisions concerning [X]’s long-term welfare and development. It is unclear at this stage if their relationship will improve.
The difficulty here is already commented upon. There is a meaningful relationship and it is beneficial to this child but the continued interaction, if that is to occur between the mother and the father is going to undermine the relationship that [X] has with each of her parents, and could have significant effects upon her into the future. Both Dr M and Dr B speculated, that if the unpleasantness continued between the parents, and it would appear that there is little likelihood that there will be improvement as between the two, then there were real concerns as to long term mental health consequences for [X] as a result of such interactions.
The necessity for a meaningful relationship, and the benefits to the child, therefore must be balanced against those concerns, and that is particularly reflected in the provisions of section 60CC(2)(b). The child must be protected not only from physical harm, but from psychological harm and if that is to be the case in this situation then one would think that, as was suggested by Dr B, at the very least there should a limiting of the opportunity for interaction between the parents.
Dr B suggested that handover should continue, for example, at the [K] police station, as has occurred in the past, but if that were to involve the mother, and there appears to be a real concern that the father has at least to some extent abused that privilege, taking photographs and videos of the mother at the police station, then perhaps a wholly neutral venue might be appropriate. If that occurred then it would go some way to ensuring that firstly the mother and the father are to have no interaction with each other, and to that end handovers at a contact centre would be an appropriate arrangement, with perhaps a significant period of time between the time of drop off by one parent or the other, and collection of the child, following such drop off.
I am certainly concerned as to the behaviours of both parties, but I must say particularly the father, in relation to the future possible consequences for the child. There is a need for a meaningful relationship to be fostered and developed, and it is noteworthy that notwithstanding the very many difficulties that continue in relation to the interaction between the mother and the father, that relationship has developed. It must however be developed in a situation in which there is little if any prospect of harm to the child, and for that reason I note the appropriateness of proposals, with regard to a strict handover regime, or routine, including the absence of the mother from such handovers, so as to remove the possibility of continued harm to the child.
I turn now obviously to matters relating to the additional considerations arising pursuant to the provisions of section 60CC(3). The first of those considerations of course relates to the wishes of the child, and whilst there does not appear to be anything specific in that regard indicated here, it can perhaps quite easily be inferred that the child’s wish is to continue in an appropriate manner, to have a proper relationship with each of her parents, and to be able to see that relationship develop and grow. There was no specific consideration by Dr B, relating to the child’s wishes but Dr B noted for example at paragraph 83 of her report that:
My observations suggested that both parents have a strong bond with [X]. They were affectionate and used every opportunity to educate her using items from her surroundings (eg counting; creative construction; using manners; safety issues). [X] related to each parent with love and her behaviour suggested she felt safe with each of them.
The child clearly was too young to be questioned or for there even to be attempts to illicit any wish from the child, but it is clear that the child’s attachments are strong to each of her parents, and need to be fostered and developed.
Subsection (b) of section 60CC(3) is also relevant in relation to these proceedings. The relationship that the child has with each of her parents is very positive, notwithstanding the difficulties that have been outlined in these proceedings. There are also however of course other relationships that need to be considered, and in that respect there is a factor which one would think is favourable to the mother.
The father has two boys of a prior relationship, and they are clearly the older brothers of [X]. However, only one of the boys now lives with the father, and that child, [Z], is considerably older than [X]. Whilst there may be a positive relationship between the two, it is clear that the age difference is a significant factor.
With the mother there is her child [Y], again a sister to [X]. The children are closer in age, and that is a factor which is again significant in relation to these proceedings, as is the issue of gender. More specifically however there are also obvious relationships with grandparents, and in that respect I gain the distinct impression that there was a far greater interaction between [X] and the maternal grandmother, than was the case in relation to the father’s extended family, though it was noteworthy that in his material one of the concerns that were expressed by him, if the child were to live with the mother in Mackay, was the limitation of opportunities to spend time with the paternal grandmother and extended family members.
There does however appear to be a notable distinction between the relationship that [X] has with members of the mother’s family, including particularly of course the maternal grandmother and step‑grandfather living in Mackay.
Subsection (c) relating to the willingness and ability of each of the child’s parents to facilitate and encourage a close and continued relationship between the child and the other parent is significant here. The mother, if you like, has “runs on the board”. Whilst she has absented herself from Townsville, because of what she says are the fears she holds if being in the same town as the father, she has, notwithstanding the significant distance, continued to facilitate the opportunity for the child to spend time with the father, and has ensured that that has occurred.
Dr B also noted that the mother, whilst being fearful of the father, continued to facilitate proper communication, both by telephone as well as in person, and encouraged the child in how that should be positive as between she and the father. From the father’s perspective, however, there are very real concerns held as to how he could properly facilitate and encourage a close and continuing relationship between the child and her mother. The father holds the mother in complete disdain. Both Dr M and Dr B commented about the abnormal reaction of the father in the erection of the sign and of the obvious need to humiliate and denigrate the mother.
The father totally lacked an appreciation of the consequences of his actions and in particular those particular actions upon others, and of course, failed entirely to appreciate that such behaviours could have serious consequences upon [X] and her relationship with the mother. His failure to appreciate the effect upon the mother, and therefore, the effect upon the child of his actions and to be disregarded as simply being something that wasn’t to be concerned about, because the child could not read, showed a total lack of insight on part of the father, and I must say, that I, along with the experts called in relation to this matter have very real concerns as to the father’s capacity to either appreciate the consequences of his actions, or more particularly, to in anyway change his behaviours.
It may be as Dr M suggested, that the father uses an avoidance technique and a rather determined approach of failing to appear to appreciate questions or issues when raised or it may be as Dr B seems to suggest, that there is simply a lack of any real appreciation on the part of the father, of the consequences of his actions. But the real issue, is that no matter what might be the cause of such behaviours, there is little likelihood that there will be any change in such behaviours, and that therefore there is a real concern that must be held as to the possibilities of the child’s relationship with the mother being fostered, and developed, if the father were to have more significant opportunities for time with the child.
Obviously I must be mindful of the likely effect of any change in the child’s circumstances, it being the case that for a period in excess of
18 months there has been a shared parenting arrangement, and certainly what is proposed by the mother would be a very significant change. Just as clearly, however, the child would not be, certainly from Dr B’s perspective, significantly troubled by a change in circumstances and there is a need particularly with her approaching school attendance, to have a settled and stable routine, and that that, according to Dr B, and certainly supported by Dr M, can best be provided by the mother being comfortable where she is, and able to settle into a routine with the support of family in Mackay.
The child no doubt will have some concern as to a reduction in time spent with the father but it can be dealt with effectively by the mother and I have no doubt, that whilst she has real fears for her own well being in relation to interaction with the father, would continue to foster the relationship with the father, and that therefore any change which would occur as a result of the child living primarily with the mother would not necessarily affect the child, in a manner which would be detrimental to her.
There is a real issue relating to the practical difficulties and expenses of the child spending time with and communicating with the other parent, if the mother were to be living in Mackay. However, I am not overly concerned about that as an issue in relation to this matter, because the mother has clearly for a period in excess of 18 months, facilitated such opportunities for time to be spent by [X] with her father, notwithstanding the distance to be travelled, and in any event there would be an obvious reduction in the amount of travel required, such that whilst there would be the obvious difficulties and expenses associated with travel, they are not insurmountable in relation to ensuring the child’s right to a meaningful relationship with her father continues to be fostered and developed.
There is a very real issue that arises pursuant to the provisions of section 60CC(3)(f), the capacity of the child’s parents to provide for the needs of the child, including her emotional and intellectual needs. It is unnecessary to repeat the very real issues of concern that arise in relation to the father and his failure to in any way appreciate the emotional consequences or psychological harm that have already, and would continue to be put upon this child by way of his actions. I have rarely been as troubled as I have been by the behaviours of one party to proceedings, and whilst as I have indicated that there are real concerns in relation to the mother, they pale into insignificance when one looks at the lack of insight shown by the father in relation to his actions and reactions, and the very real concerns as to the emotional stability and well being of the child.
No doubt each parent can ensure that the child attends school. No doubt each parent can meet the intellectual needs of the child, and in that regard I note positively from the father’s perspective, that Dr B again spoke with real admiration of the father’s ability to interact with the child, to get down to the child’s level, and to be involved with the child. But there is a very great concern that arises as to the father’s lack of appreciation of his actions toward others, and in particular the child’s mother, such that the capacity of the mother to provide for the child’s emotional needs far exceeds the capacity or in fact ability of the father, to deal with such issues.
Similarly, concerns of that nature arise pursuant to the provisions of section 60CC(3)(i) relating to the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents. There is a very real difference between the parties. The father comes from a position of what could only be described as self-centred and self-opinionated views as to what should and should not occur. The child, or in fact any of the children, and I include [Y] in that respect seem to have taken secondary importance to the father’s need to ensure that what he wishes to occur is occurring, and that if there is any perceived sleight by anyone, including particularly the mother toward the father, then that he lashes out, without consideration of the consequences for others, including particularly of course, [X].
There is a very real issue of concern about the father’s capacity to properly parent or to in any way even recognise the consequences of his actions, upon this child.
The mother’s attitude, however, is very different. Whilst she moved without consultation with the father, and that is a matter of concern, she did so in a situation where there were very legitimate fears and concerns held by her about her own well being. Notwithstanding that however she continued to facilitate the interaction and opportunities of time being spent by the child with the father, and it reflects very well and very positively therefore upon the mother’s responsible approach to parenting, and her attitude to the child and to the child’s right to a relationship with the father.
Again there is a very great gulf between the capacities shown by each of the parents in relation to these proceedings.
There are no issues here relating to Aboriginality or Torres Strait Islander issues, or cultural matters that need to be considered, though there is an issue of concern which does arise with regard to the lifestyle of each of the parties. Quite clearly there are issues relating to drug use, and to immersion in what might be called the drug culture. I have concerns about each parent’s continued involvement in drug use, and I must say that the failure by both parents to respond appropriately, and immediately, to the call by the independent children’s lawyer for drug analysis, is a matter that troubles me particularly, in relation to these proceedings.
The overall impression, however, is that the mother has taken far more positive steps to remove herself from the influences of drugs, and the drug culture, moving to another town and seeking the ongoing support and nurture of her family, whilst the father continues in the same household with what would appear apparently to be a continued security arrangement in place, which would be suggestive of continued involvement in inappropriate dealings with drugs.
I am far more of a mind to be concerned about the environment of the father, therefore, and his lifestyle, and its possible consequences for [X], than would be the case in relation to the mother.
Looming large in relation to this matter also are issues with regard to family violence and the existence of a family violence order. It may be that the father feels that he is the victim and that he has been “hard done by” in relation to determinations made in the state courts with regard to family violence, but I must say that the all pervading atmosphere in relation to this matter, is that there has been a domestically violent relationship between the mother and the father.
Certainly, I am accepting of the fact that the mother has to a significant degree, exaggerated the extent of the violence, intimidation and harassment within the relationship, particularly when it came to the physical aspects of that, but by the same token, I am very much of the view that there has been an ongoing emotional as well as a physically abusive relationship, and that has had a very real consequence for this child and in particular, has had serious impact upon the mother, and therefore explains, to a large degree, her need to put distance between herself and the father.
The orders that the father seeks in relation to this matter with regard to equal shared parental responsibility and of course by inference, a requirement that the mother remain in the Townsville area, so that there can be shared care arrangements in relation to [X] are, I think, far more likely to lead to the institution of further proceedings than would be the case, if as the mother suggests, she has sole parental responsibility, and has the ability to live away from Townsville.
She has support in Mackay through family and friends that is not available to her in Townsville. The close proximity, if she were to live in Townsville, to the father and the very real risk of continued intimidation, harassment and abusive behaviours, is such that orders which are sought by the mother, which would put distance between she and the father are, in my view, far more likely to give rise to a more settled arrangement and one which ensures that there is less prospect of the further institution of proceedings.
For the reasons that have been detailed at length therefore in relation to this matter, I am very much of the view that the orders sought generally by the mother, and I note, strongly supported by the independent children’s lawyer, are appropriate orders in relation to ensuring that the best interests, and the welfare of this child, are met. The distance between the mother and the father can only be beneficial to this child, because it will enable the mother to more properly and more fully be involved in the parenting of the child, without the ongoing fear of harassment, control and abuse which has been an all pervading factor in the relationship between the mother, and the father, certainly since separation in January 2009.
The orders that I intend to make, in relation to this matter therefore, are as follows:
That the Mother have sole parental responsibility for decisions relating to the major long-term issues of the child, [X] born [in] 2007, including but not limited to:
(a)The child’s education (both current and future);
(b) The child’s religious and cultural upbringing;
(c) The child’s health;
(d) The child’s name;
(e) Any changes to the child’s living arrangements which make it significantly more difficult for the child to spend time with each parent.
That in exercising the parental responsibility in paragraph 1, the Mother shall advise the Father of any such decisions and seek his input prior to making a decision.
Notwithstanding paragraphs 1 and 2 of this Order, the Mother and Father be responsible for the day-to-day care, welfare and development when the child is in their respective care.
That the child live with the Mother in Mackay.
That the child spend time with the Father at all times as agreed between the parties and failing agreement as follows:
(a)Until the child commences Prep:
(i)for six block periods per annum with each such block period to not exceed one week at any given time upon the Father giving the Mother 28 days notice in writing of his intention to spend such block time with the child;
(ii)such block periods to not include the Mother’s birthday or Mother’s Day;
(iii)such block periods to only include Easter Sunday, the child’s birthday or Christmas Day in alternate years;
(b)Once the child commences Prep and until the child commences year 6:
(i)for one weekend during each school term upon the Father giving the Mother 28 days notice in writing of his intention to spend such weekend time with the child, providing such weekend does not include Mother’s Day or the Mother’s birthday;
(ii)for one week in the June/July school holidays and one week in the September/October school holidays on the basis that the Father will spend the first week of the school holidays in even numbered years and the second week of the school holidays in odd numbered years;
(iii)for all of the Easter school holidays each year; and
(iv)two weeks in the Christmas school holidays per annum to be taken in two periods of one week each and not to be taken consecutively. The father to include Christmas Day in his block period only in even numbered years. The father to give the mother 28 days notice in writing of his intention to spend such time with the child and the dates of such time.
(c)Once the child commences Year 6 onwards:
(i)for one weekend during each school term upon the Father giving the Mother 28 days notice in writing of his intention to spend such weekend time with the child, providing such weekend does not include Mother’s Day or the Mother’s birthday;
(ii)for one week in the June/July school holidays and one week in the September/October school holidays on the basis that the Father will spend the first week of the school holidays in even numbered years and the second week of the school holidays in odd numbered years;
(iii)for all of the Easter school holidays each year; and
(iv)half the Christmas school holidays per annum on the basis that the child will spend the first half of the school holidays with the Father in even numbered years and the second half of the school holidays with the Father in odd numbered years.
The school holiday times to be defined as follows:
(a) The first half of the school holidays, with the exception of the Easter school holidays, to commence at 2pm on the first Saturday after the last day of the school term;
(b) The second half of the school holidays in the June/July and September/October holidays to commence at 2pm on the second Saturday after the last day of the previous school term and to finish at 1pm on the Saturday before school commences in the next term;
(c) The second half of the school holidays in the Christmas holidays to commence at 2pm on the fourth Saturday after the last day of the school year and to finish at 1pm on the Saturday before the next school year commences;
(d) The Easter school holiday period shall commence at 2pm on the day after the last day of the first term of school at to finish at 2pm on the day before the first day of term 2.
Changeover for the child to occur at the [K] Police Station.
Notwithstanding the paragraphs above, the child to spend special days with the Father in the event the parties are staying within 50 km of each other on such special days as follows:
(a) from 9am until 5pm on Father’s Day with changeover to be at a location agreed between the parties;
(b) on the child’s birthday for not less than five hours if a non-school day or three hours on a school day at times to be agreed and failing agreement from 12pm to 5pm (if a non-school day) and 3pm to 6pm (if a school day) with changeover to be at a location agreed between the parties;
(c) on the Father’s birthday for not less than five hours if a non-school day or three hours on a school day at times to be agreed and failing agreement from 12pm to 5pm (if a non-school day) and 3pm to 6pm (if a school day) with changeover to be at a location agreed between the parties.
In the event the Father is unable to spend time with the child on Christmas Day, Father’s Day, the Father’s birthday or the child’s birthday, the Father to have telephone communication with the child on those days, with the Mother to facilitate the child ringing the Father.
That both parents are at liberty to contact the child when they are not in their care at all reasonable times and failing agreement, between 6.30pm and 7.30pm on Wednesdays and Sundays. In the event that the child is unavailable when the telephone calls are made in accordance with these Orders, both parents will facilitate and encourage the child to return the telephone call within 24 hours.
That both parents will facilitate the child communicating with the other parent by telephone at all reasonable times should the child express the wish to call the other parent.
Neither parent to denigrate the other parent or members of the other parent’s family in front of the child and each parent to take all steps to remove the child from the presence of any other person who is doing so in front of the child.
Neither parent to use illegal drugs or drink to excess at any time the child is in his or her care.
That the Mother undertake post-traumatic stress counselling, including domestic violence counselling.
That the Father undertake anger management counselling.
That the Independent Children’s Lawyer be discharged upon the expiration of 28 days from the date of this order.
I certify that the preceding one hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of Coker FM
Associate:
Date: 11 March 2011
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