Scotts and Senior
[2016] FCCA 2044
•11 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SCOTTS & SENIOR | [2016] FCCA 2044 |
| Catchwords: FAMILY LAW – Parenting – young children – assessed as no risk to the children remaining in the Mother’s care – manipulative conduct by the Father trying to “bait” the Mother to expose her alleged poor parenting – significant lack of insight by the Father of his conduct and lack of commitment to relationships with his various partners and the likely negative impact on the children involved. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC(2) & (3)(a) – (l), 61DA, 65DAA |
| McCall v Clark (2009) 41 Fam LR 483 Maluka v Maluka (2012) 45 Fam LR 129 |
| Applicant: | MS SCOTTS |
| Respondent: | MR SENIOR |
| File Number: | CAC 237 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | 1 February 2016 |
| Date of Last Submission: | 8 April 2016 |
| Delivered at: | Canberra |
| Delivered on: | 11 August 2016 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Ms M Burgess |
| Solicitors for the Applicant: | Legal Aid ACT |
| Counsel for the Respondent: | Self-represented |
Solicitor/Advocate for the Mrs G Yeend
Independent Children’s Lawyer:
Solicitors for the Independent Yeend & Associates
Children’s Lawyer:
ORDERS
The Mother is to have sole parental responsibility for the children, X (born: (omitted) 2011) and Y (born: (omitted) 2013).
The children live with the Mother.
The children spend time with the Father as agreed in writing but failing agreement, as follows:
(a)During the New South Wales school term on each alternate week from 4:00pm Friday until 4:00pm Sunday, commencing on the first week of term in 2016 and in even numbered years thereafter;
(b)During the New South Wales school term on each alternate week from 4:00pm Friday until 4:00pm Sunday, commencing on the second week of term in 2017 and in odd numbered years thereafter;
(c)For the first half of the New South Wales school holiday periods in Terms 1, 2, 3 in 2016 and in each even numbered year; and
(d)For the second half of the New South Wales school holiday periods in Terms 1, 2, 3 in 2017 and in each odd numbered year thereafter;
(e)In weeks 1, 2 and 5 of the Term 4 school holiday period, commencing in 2017 and in every odd numbered year thereafter; and
(f)In weeks 3, 4 and 6 of the Term 4 school holiday period, commencing in 2016 and in every even numbered year thereafter.
For the purposes of Order 3 herein, the school holiday period will commence at 10:00am on the Saturday after the last day of school and conclude at 4:00pm on the Saturday before school recommences.
For the purposes of Order 3 herein, one half of the school holiday period is to be calculated by dividing the total number of days the children do not attend school. If this is an uneven number of days the father is to have the additional day in holidays falling or commencing in even numbered years and not those in other years.
For the purposes of Order 3 herein, during the Term 4 school holiday period, each week commences at 10:00am Saturday and conclude at 4:00pm the· following Saturday.
Special Occasions
Notwithstanding any other Order herein, the children spend time with their parents as follows:
(a)From 5:00pm the day before Halloween until 5:00pm the day after Halloween with the Mother;
(b)From 5:00pm on Christmas Eve to 5:00pm on Boxing Day with the Father in odd numbered years, commencing in 2017;
(c)From 5:00pm on Christmas Eve to 5:00pm on Boxing Day with the Mother in even numbered years, commencing in 2016;
(d)From 5:00pm on the Thursday before Good Friday to 5:00pm on Easter Saturday with the Father, in even numbered years commencing 2016;
(e)From 5:00pm Easter Saturday to 5:00pm Easter Monday with the Mother in even numbered years, commencing in 2016;
(f)From 5:00pm on the Thursday before Good Friday to 5:00pm on Easter Saturday with the Father in odd numbered years, commencing 2017;
(g)From 5:00pm Easter Saturday to 5:00pm Easter Monday with the Mother in odd numbered years, commencing in 2017.
(h)From 5:00pm the day before Mother's day until 5:00pm the day after Mother's day with the Mother;
(i)From 5:00pm the day before Father's day to 5:00pm the day after with the Father.
Changeover
Changeover shall occur as agreed between the parties in writing but failing agreement, outside the McDonald's (omitted) in New South Wales.
Communication
The resident parent will take all reasonable steps to facilitate communication between the children and the non-resident parent through telephone or Skype.
Within 7 days each parent shall provide the other with written details of their residential address and that each parent shall notify the other within 24 hours of any change of residential address, email or telephone number, including mobile telephone.
The Mother shall advise the Father, as soon as reasonably practical of:
(a)Any significant illness, accidents or injury suffered by the children;
(b)Any significant medical or dental treatment provided to the children;
(c)Any medication the children are to take, while they are in the Father's care, including the dosage;
(d)This Order may be regarded as authority for the relevant Doctor or Hospital to provide relevant information to Father.
The Father notify the Mother immediately, or as soon as practicable, of any medical or other emergency relating to the children, while they are in his care.
The children's childcare, school, vacation care and other providers are authorised to provide all information and documents about the children to both parents, including but not limited to the children's progress, newsletters, reports, photographs and details of any school activities and that each parent shall ensure they provide their contact details to such school and facilities.
Both parents may attend any school, extracurricular or sporting activity to which parents are normally invited.
Overseas Travel
The parties do all things necessary, including but not limited to producing and signing of documents, to enable the children to obtain passports, at the Mother's cost.
The children are permitted to travel outside the Commonwealth of Australia, subject to:
(a)The parent proposing travel providing the other parent with 8 weeks' notice in writing of the proposed travel, including details of the proposed itinerary and details of makeup time following the period of travel for any party who forgoes time as a result of the travel;
(b)Not less than 14 days prior to departure, the parent proposing travel providing a copy of the children's tickets and confirmation of the addresses where they will be staying during the period of travel together with an email address and telephone number at which the parent and the children may be contacted by the other parent;
(c)Unless agreed otherwise in writing between the parties, such travel not exceed a period of 4 weeks;
(d)The consent in writing of the other parent is not unreasonably withheld; and
(e)That during the period the children are overseas, the parent with whom the children are travelling will facilitate the children telephoning the other parent on alternate days.
Both parents are restrained from saying unkind or unpleasant things about the other parent to the children, in their presence, or allowing any other person to do so.
IT IS NOTED that publication of this judgment under the pseudonym Scotts & Senior is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 237 of 2015
| MS SCOTTS |
Applicant
And
| MR SENIOR |
Respondent
REASONS FOR JUDGMENT
Introduction
This parenting matter requires the Court to make Orders that are in 4½ year old X’s and 3 year old Y’s, best interests in accordance with s.60CA of the Family Law Act 1975 (“the Act”).
The young parents of the children met over the Internet and communicated by this means for some years before finally meeting face to face in 2011. They started co-habiting quite soon thereafter. They separated in 2014.
The Court has the benefit of a family report prepared pursuant to s.62G of the Act. It became Exhibit A. The recommendations in it were very short and to the point, thus:
50. Unless there are safety issues that indicate otherwise, X and Y should continue to live with their mother.
51. X and Y should spend time with their father from Friday afternoon to Sunday afternoon and for half of each school holiday period, or its equivalent from the beginning of 2016.
On the evidence provided at the trial (and the documents provided during the course of it), the Court does not have any relevant concerns in relation to the care of the children by their Mother. Accordingly, they should remain in her primary care. Other than “parental responsibility” (with the Mother seeking sole parental responsibility), the only issue in these circumstances, relates to the time the children spend with their Father. Related to this aspect are the logistics of transport and such matters because the Father lives on the (omitted) of New South Wales and the Mother lives in (omitted). The drive time between the parents’ residence is approximately 3 hours.
In my view, based on the evidence at trial, the submissions of the parties and the statutory considerations set out in Part VII of the Act, the Orders as sought by the Mother are in the children’s best interests.
After setting out the Orders sought by the parties (and the ICL), in my view, given that the Father was self-represented at the trial (and remains so) and that the experienced lawyer for the Mother chose not to cross-examine the Father, it is as well to deal with the evidence of the family consultant first. In essence because of the way the matter was conducted – as just indicated – there was little substantive evidence at trial other than that from the family consultant.
Orders Sought on behalf of the Applicant Mother
The Mother seeks the Orders set out in her Case Outline, filed on 20 January 2016, set out as follows:
1. The Mother has [sic] sole parental responsibility of the children X, born (omitted) 2011 and Y , born (omitted) 2013 ('the children').
2. The children live with the Mother.
3. The children spend time with the Father as agreed in writing, but failing agreement, as follows:
a. During the New South Wales school term on each alternate week from 4:00pm Friday until 4:00pm Sunday, commencing on the first week of term in 2016, and in even numbered years thereafter;
b. During the New South Wales school term on each alternate week from 4:00pm Friday until 4:00pm Sunday, commencing on the second week of term in 2017 and in odd numbered years thereafter;
c. For the first half of the New South Wales school holiday periods in Terms 1, 2, 3 in 2016 and in each even numbered year; and
d. For the second half of the New South Wales school holiday periods in Terms 1, 2, 3 in 2017 and in each odd numbered year thereafter;
e. In weeks 1, 2 and 5 of the Term 4 school holiday period, commencing in 2017 and in every odd numbered year thereafter; and
f. In weeks 3, 4 and 6 of the Term 4 school holiday period, commencing in 2016 and in every even numbered year thereafter.
4. For the purposes of Order 3 herein, the school holiday period will commence at 10:00am on the Saturday after the last day of school and conclude at 4:00pm on the Saturday before school recommences.
5. For the purposes of Order 3 herein, one half of the school holiday period is to be calculated by dividing the total number of days the children do not attend school. If this is an uneven number of days the father is to have the additional day in holidays falling or commencing in even numbered years and not those in other years.
6. For the purposes of Order 3 herein, during the Term 4 school holiday period, each week commences at 10:00am Saturday and conclude at 4:00pm the· following Saturday.
Special Occasions
7. That notwithstanding any other Order [sic: Orders] herein, the children spend time with their parents as follows:
a. From 5:00pm the day before Halloween until 5:00pm the day after Halloween with the Mother;
b. From 5:00pm on Christmas Eve to 5:00pm on Boxing Day with the Father in odd numbered years, commencing in 2017;
c. From 5:00pm on Christmas Eve to 5:00pm on Boxing Day with the Mother in even numbered years, commencing in 2016;
d. From 5:00pm on the Thursday before Good Friday to 5:00pm on Easter Saturday with the Father, in even numbered years commencing 2016;
e. From 5:00pm Easter Saturday to 5:00pm Easter Monday with the Mother in even numbered years, commencing in 2016;
f. From 5:00pm on the Thursday before Good Friday to 5:00pm on Easter Saturday with the Father in odd numbered years, commencing 2017;
g. From 5:00pm Easter Saturday to 5:00pm Easter Monday with the Mother in odd numbered years, commencing in 2017.
h. From 5:00pm the day before Mother's day until 5:00pm the day after Mother's day with the Mother;
i. From 5:00pm the day before Father's day to 5:00pm the day after with the Father.
Changeover
8. Changeover shall occur as agreed between the parties in writing, but failing agreement, outside the McDonald's (omitted) in New South Wales.
Communication
9. The resident parent will take all reasonable steps to facilitate communication between the children and the non-resident parent through telephone or Skype.
10. That within 7 days each parent shall provide the other with written details of their residential address, and that each parent shall notify the other within 24 hours of any change of residential address, email or telephone number, including mobile telephone.
11. That Mother shall advise the Father, as soon as reasonably practical of:
a. Any significant illness, accidents or injury suffered by the children;
b. Any significant medical or dental treatment provided to the children;
c. Any medication the children are to take, while they are in the Father's care, including the dosage;
d. This Order may be regarded as authority for the relevant Doctor or Hospital to provide relevant information to Father.
12. That the Father notify the Mother immediately, or as soon as practicable, of any medical or other emergency relating to the children, while they are in his care.
13. The children's childcare, school, vacation care, and other providers are authorised to provide all information and documents about the children to both parents, including but not limited to the children's progress, newsletters, reports, photographs and details of any school activities and that each parent shall ensure they provide their contact details to such school and facilities.
14. Both parents may attend any school, extracurricular or sporting activity to which parents are normally invited.
Overseas Travel
15. That the parties do all things necessary, including but not limited to producing and signing of documents, to enable the children to obtain passports, at the Mother's cost.
16. The children are permitted to travel outside the Commonwealth of Australia, subject to:
a. The parent proposing travel providing the other parent with 8 weeks' notice in writing of the proposed travel, including details of the proposed itinerary and details of makeup time following the period of travel for any party who forgoes time as a result of the travel;
b. Not less than 14 days prior to departure, the parent proposing travel providing a copy of the children's tickets, and confirmation of the addresses where they will be staying during the period of travel together with an email address and telephone number at which the parent and the children may be contacted by the other parent;
c. Unless agreed otherwise in writing between the parties, such travel not exceed a period of 4 weeks;
d. The consent in writing of the other parent is not unreasonably withheld; and
e. That during the period the children are overseas, the parent with whom the children are travelling will facilitate the children telephoning the other parent on alternate days.
Orders Sought on behalf of the Respondent Father
According to his brief Written Submissions filed on 22nd February 2016, the Father sought “the orders sought in my affidavit”, date unspecified.
I can only assume that this reference was/is to the Father’s Affidavit filed 13th January 2016, under the heading “The Best Possible Outcome for All Parties Involved In My Eyes”, where the Father stated that:[1]
[1] Unfortunately, there are no page numbers to the Father’s affidavit, and some documents appear to be annexures but are located somewhat haphazardly throughout the document.
In my opinion I believe in the best interests of the children that they should spend 80% from Monday-Friday with me and my partner Ms C and their sister whom they are very in love with and Friday afternoon-Monday morning with Ms Scotts.
So that I could get settled into a social environment to prepare them for schooling in the not too distant future
Give the children a more “permanent” residence as I think it would impact on their mental health being moved around so much.
I would also like to suggest that 50/50 custody during school holidays.
In his brief Written Submissions, filed 22nd February 2016, the Father indicated that he would be willing to agree to the Mother’s Orders Sought with the following changes:
1. I return the children before school starts on Monday morning.
2. We have joint parental custody.
3. I have the children for the full 6 weeks of the end of term school holidays and half the Christmas holidays, I will facilitate all change over so Ms Scotts doesn't have to any of the traviling [sic].
Orders Sought on behalf of the Independent Children’s Lawyer
In paragraph 2 of her Written Submissions filed on 6 April 2016, the ICL indicated that:
The ICL wholly supports the orders as sought by the mother with the exception of the Orders for travel. No significant evidence was advanced in relation to that issue although the ICL has no significant opposition to the Orders as sought in that regard.
Evidence of the Family Consultant (Report)
It is as well to note the following matters in some detail from the family report given the relatively scant evidence available to the Court.
First, in relation to the Mother, the family consultant said (pars.16 – 30) (emphasis added):
16. Ms Scotts lives alone with X and Y in a town house she has rented since separating from Mr Senior. She claimed that she has not re-partnered. She said she works “(occupation omitted)” for three days a week “while the kids are in Day Care” and also works extra shifts when the children are spending time with their father. She also works as a (occupation omitted) at the (omitted) in Canberra during the summer months. She said she is able to manage on this arrangement and said, “I now realize I didn’t need to be with him. I am financially better that I ever was with Mr Senior (Mr Senior).”
17. Ms Scotts said she had been corresponding with Mr Senior “online” for about three years before they finally met in person in 2011. She said she had moved to (omitted) from (omitted), where she had previously lived, in order to pursue her relationship with Mr Senior. Ms Scotts said she had been willing to marry Mr Senior but said, “It was never a priority for Mr Senior (Mr Senior)” and there was “always some reason” to prevent them marrying.
18. Ms Scotts said her relationship with Mr Senior had been difficult, even in its earliest stages. She said Mr Senior had always been “in and out of employment” and had worked in Western Australia for a period. She said Mr Senior “always had other girls” and “It was never a secret. He never hid it.” Ms Scotts said she had been upset to discover that Mr Senior “had two other girls in Western Australia” while he was working away from home. She said she had only stayed in the relationship because “I was pregnant and had no support”. She claimed that, as a result of his expenditure on these other liaisons, their financial situation remained precarious despite the good wages he received while working in Western Australia.
19. Ms Scotts described Mr Senior as a difficult person who had “lots of disagreements with people”. She said Mr Senior regularly made threats of violence toward her, telling her on several occasions “He would bury me up the (omitted)”. She said she had initially taken these threats seriously but eventually “got used to it” and realised “they were empty threats”. She said Mr Senior had never been physically abusive to her but had been verbally abusive to her and had behaved in an intimidating manner. Ms Scotts said the present Consent Order, which provides that they do not go within 500 meters of each other, generally addresses her concerns.
20. Ms Scotts described several incidents where Mr Senior’s behaviour had resulted in the involvement of police. In particular, she described events that occurred on 26th October 2014 at the (omitted) in the ACT. She alleged Mr Senior and his parents had displayed aggressive behaviour in a public place that had resulted in police being called and their party being asked to leave that premises. She also alleged that, on the evening following this event, Mr Senior went to her house and coerced her into having sexual relations with him and claimed this had resulted in a pregnancy that was later terminated.
21. Ms Scotts said she has always been primarily responsible for the care of the children. She said Mr Senior had spent significant time working in Western Australia when the children were younger and made only a limited contribution to their care when he was at home.
22. Ms Scotts said Mr Senior “decided that X was not his child” at the time of his birth. She said Mr Senior has refused to sign X’s birth certificate and continues to say that he doubts he is X’s father.
23. Ms Scotts said Mr Senior established a (omitted) business in early 2014. She alleged that he had “developed depression” and “ran the business into the ground” by July 2014. She said, “He wouldn’t get out of bed and wouldn’t go to work”. She said the family’s General Practitioner had prescribed anti-depressant medication for Mr Senior, which he had refused to take. She claimed there had been significant social problems related to Mr Senior’s work situation. She alleged that he had received death threats and their car had been “torched” in the driveway of their home. She said Mr Senior blamed these problems on Mr A, who had initially been an employee and friend. She said Mr Senior and Mr A had fallen out and “went to war”. She claimed each had threatened to kill the other.
24. Ms Scotts said she had finally decided to leave Mr Senior in July 2014. She said she had threatened to leave him on a number of previous occasions but had not previously carried through with her threats. She said Mr Senior had since pleaded with her to “get back together” and had, on several occasions, threatened to commit suicide if she did not return to him. She said she had considered agreeing to resume their relationship “for the benefit of the kids” and because she “wanted to be in a family”. However, she said she had discovered he been seeking to resume their relationship while maintaining a relationship with his present partner. She claimed he has continued to ask her to return to him up to the present time, even though his partner has just had a baby. She said she has no intention of resuming a relationship with him.
25. Ms Scotts said that Mr Senior had wanted nothing to do with the children after their separation. She said she had to “beg him” to see the children and he initially spent time with them reluctantly and only on her insistence. However, she said that, between November 2014 to February 2015, Mr Senior “was having the children for a weekend every second or third week”, depending on his availability. She said she “tried to make it easy for him” to spend time with the children by encouraging his relationship with the children and by being flexible and cooperative with travel arrangements.
26. Ms Scotts said a crisis occurred when Mr Senior refused to return the children after having them for a weekend in February 2015. She said he had told her he was “keeping them” unless she agreed to certain conditions, including a demand that she pay him $400,000 and permit the children to spend equal time with him. She said he only returned children to her after she sought their recovery through the Court. She said the existing arrangements for the children to spend time with each parent were set in place at that time and have been adhered to since then.
27. Ms Scotts said she had previously been an insecure person who lacked self-confidence. She said she has become more confident since separation from Mr Senior and has come to realize that the children need a stable environment without conflict.
28. Ms Scotts said she maintains a close relationship with her mother who now lives in (omitted), NSW. She said she talks to her mother “every day” and visits her about twice a year. She said she retains a close relationship with relations in (omitted), where she grew up, and visits there “every other month”. She said she receives support from “a few good friends” in (omitted). Ms Scotts said her parents had separated when she was “about two years old” and described how her father had taken her from her mother at the age of eight years old and refused to allow her to see her mother for “thirteen months”. She said she had been “told horrible things about her (mother)” that were not true. She said this has influenced her to try to ensure the children maintain a relationship with their father and that she avoids saying negative things about Mr Senior to her children.
29. Ms Scotts said, “It is a lot easier if we communicate by text only”. She said she avoids conversing with Mr Senior, as he is often abusive to her, particularly if there are no witnesses to their conversations. She said her solicitor has advised her to avoid personal contact after witnessing Mr Senior’s abusive behaviour in the Family Law Court Building. She said she has had no personal contact with Mr Senior since Easter 2015.
30. Ms Scotts said allegations made by Mr Senior that she drinks excessively and does not properly supervise or care for the children are untrue. She said she never drank alcohol during her relationship with Mr Senior and now only drinks occasionally, when the children are away in his care. She said her life revolves around caring for the children and she believes she provides a safe and appropriate environment for them. She said Mr Senior had threatened to make allegations against her to undermine her case to retain her caring role for the children. She said, “They are just allegations. He would have no idea what I am doing in my life”.
In relation to the Father, the family consultant said (pars.31 – 38) (emphasis added):
31. Mr Senior failed to attend a scheduled appointment on 2nd September 2015 for the preparation of this report. When contacted by the Family Consultant by telephone he blamed his failure to attend on “that fucking bitch” (Ms Scotts), whom he claimed had misled him about the date of the appointment. He acknowledged that he had received a letter informing of the appointment but said he had been unable to find this letter, as he was in the process of moving house and that Ms Scotts had led him to believe the appointment was a week later. A second appointment was made for the 2nd October 2015.
32. Mr Senior arrived about thirty minutes early for the reallocated appointment, accompanied by X and Y. He had made no provision for the care of the children while he was interviewed. He said he had asked Ms Scotts to mind the children but she had refused. As a result, the interview took place in the playroom of the Family Law Court building with the children present. Following the interview it was discovered that Ms Scotts had arrived at the time allocated for Mr Senior’s interview, to be available to care for the children. She said she had advised Mr Senior that she would do this.
33. Mr Senior presently lives at (omitted) on the (omitted) of NSW. He said he is unemployed and receives Centrelink benefits and “works from home as a (occupation omitted)”. He said his present partner, Ms C had a daughter, S, on (omitted) 2015 and, at the time of the interview was still recovering in hospital. Mr Senior said he had lived on the (omitted) during his school years and his parents continue to live nearby and to support him.
34. Mr Senior said his relationship with Ms Scotts initially was “great”. However, he said, after she became pregnant with X she “didn’t give two shits about me” and “treated me like shit”. He said, “I wasn’t important to her”. He said Ms Scotts had been “horrendously abusive” whenever he made phone calls from Western Australia because “She (she thought she) was doing it hard and I was having a good time”. He indicated that he believed her to be ungrateful as, “She got everything she needed”. He said, “I wasn’t one hundred percent faithful during our relationship.” Her [sic – he] claimed this was because “she wasn’t affectionate to me” and there was “no emotional connection”. Mr Senior agreed that he had suffered depression but said this was only because of the nature of his relationship with Ms Scotts and, after they had separated, he had recovered.
35. However, Mr Senior said he continues to love Ms Scotts. He said, “I will always love her. She is the mother of my children. When we talk on the phone it is like we were never apart.” He said he would like to reconcile with her and would be prepared to leave his present partner and infant child if Ms Scotts would agree to resume their relationship. He said, “I would probably go back. The boys need me more than Ms C needs me.”
36. Mr Senior said he is “confused about the parentage of X”. He said that Ms Scotts said X was not his child in one affidavit and that he was in a later affidavit. He said, “As far as I am concerned, he is my son.” He said the reason he had not been registered as X’s father so that Ms Scotts “could claim the single parenting payment while we lived together” and not because of problems about his parentage.
37. Mr Senior said Mr A is “the main reason all this happened” and that Mr A had “destroyed my life”. He described Mr A as a “racist and terrorist” who is presently in jail and is awaiting trial on further criminal charges. He said Mr A had made death threats and this had been the reason he moved away from (omitted). He said he believed these threats also included threats to Ms Scotts and his children. However, he said Ms Scotts had continued to have a close relationship with Mr A and his partner, Ms T and to “hang out with them”. He said, “I had been warning her to stay away from these people. They are no good.” As a result, he had decided that “the kids were in danger” and had taken them to his home on the (omitted) in February 2015 without informing Ms Scotts. He had then refused to return them to her. He said this action had resulted in the subsequent Recovery Order and present Court Order.
38. Mr Senior said he believes the children are at physical risk in the care of Ms Scotts. He said Ms Scotts had been “a good mother when we were together” but claimed she is not coping with the pressures of being a single parent. He said, “I hear her screaming at the kids when I call her (on the phone).” He said X constantly complains that his mother hits him and says that he “does not want to go back to Mummy’s house”. He said the boys have had “bruises consistent with abuse” and that he has reported this to both DOCS and the police. He said he has had no response from DOCS about his complaints and he feels his complaints are “falling on deaf ears”.
The family consultant’s evaluation, following a relatively brief observation of the children with the parents which showed that the children were basically relaxed with both parents, was as follows (pars.44 – 49) (emphasis added):
44. X and Y appear to be developing well and to be comfortable in their relationships with both of their parents. Given that it seems that Ms Scotts has been their principal carer throughout their lives, it would seem appropriate that this relationship is endorsed and maintained, unless it can be demonstrated that the children are at risk in her care.
45. Mr Senior raised concern about the safety of the children while in the care of Ms Scotts. If DOCS officers can substantiate the alleged abuse, these claims would justify at least intervention by appropriate authorities and perhaps support acceptance of Mr Senior’s proposal.
46. It was concerning that Mr Senior appeared to have limited empathy for his partners and little understanding of the impact of his own behaviour on them. Given Mr Senior’s stated lack of commitment to his present relationship and new child, his future family situation would seem uncertain. It was concerning that he may not be able or willing to maintain the present situation in which he seems to have been able to sustain reliable and effective care for the children. His description of his need for affection and his lack of understanding of the impact of his infidelities on his relationships seemed particularly egocentric, as did his decision to remove the children from their mother against her wishes in order to impose his preferred solution about where they should live.
47. Mr Senior’s argument that better educational and social opportunities exist on the (omitted) of NSW than in (omitted) is only an opinion and would seem to be difficult to sustain. While full-time enrolment in preschool for X in 2016 may be preferable to the arranged part-time enrolment, such arrangements are common and would not seem to be a decisive issue.
48. Both parties are willing to maintain the present arrangement for how the children spend time with each parent until the end of 2016. However, given that X is enrolled in preschool on Thursdays and Fridays for 2016, the need to change to an arrangement where the children spend time with Mr Senior on different days; for example, from Friday afternoon to Tuesday morning. The end of 2015 would seem an appropriate time to establish a new arrangement that could be maintained into the children’s school years and provide them with a stable and predictable situation.
49. Once X starts school in 2017 the present arrangements will not be sustainable, as the parents wish to continue to live in geographically separated locations. The logistics of the situation mean that X and Y will need to stay with one parent during the school week and spend time with the other parent on weekends and during the school holidays. Unless it can be substantiated that the children are at risk with Ms Scotts, an arrangement where the children live with their mother and spend alternate weekends and half school holidays with their father would seem most appropriate. This would still be substantial time for children of this age.
Oral Evidence at Trial
In his oral evidence, the family consultant said, among other things (a) he did not get the impression that the Mother was incompetent or that she was not coping, and (b) there was nothing in his observations of the children and their Mother that warranted mention in his report.[2]
[2] Transcript (1st February 2016) pp.75 & 76.
Indeed, later in his brief oral evidence, he confirmed that when observing the children’s inter-action with the Mother, there were no concerns about her care of them and that the children responded “very well to her.” Similarly, he said that the children responded well to the Father also.[3]
[3] T 77.
In my view, the brief oral evidence of the Mother was quite unremarkable and added little to the overall, albeit quite limited, evidence. She gave evidence to the following effect, essentially to rebut claims made by the Father.
For example, she said that certain marks on the children came from mosquito bites (or from wrestling each other). She also confirmed that she has smacked the children but this (it was submitted – and which I accept) did not, on the very limited evidence available, constitute “abuse” as alleged by the Father.
The Mother gave evidence of her on-going difficulties in communicating with the Father. This amounted to her outlining that if the Father did not get what he wanted then communication (and other things) became difficult.
Notwithstanding communication difficulties, the Mother gave evidence of her attempts to involve the Father in the children’s lives, which showed, in my view, that she had insight and maturity to put aside the difficulties with the Father and to put the interests of the children above her own interests and concerns.
As difficult as it was in the light of how brief the oral evidence of both parties was, I tend to accept the evidence of the Mother more so than that of the Father, who had a not insignificant tendency to exaggerate his various contentions against the Mother.
In the Father’s equally brief oral evidence (especially given the Mother’s advocate’s decision not to cross examine him), he appeared, as he did to the Family Consultant, quite self-focussed. He had difficulty in distinguishing between his own interests and those of the children. For example, he wanted the children to miss one day of day care to spend time with him because he did not want to give up any of his allocated time with them.
A particularly concerning aspect of the Father’s evidence, which stems from a series of blunt and explicit SMS messages to the Mother, was his confirmation that they were sent as “bait” to the Mother ultimately to show her [allegedly] impoverished parenting of the children. Such a course was callous and self-serving and patently not in the children’s best interests. Indeed, he sought to manipulate any responses from the Mother to his “bait” TXT messages to show how she was [allegedly] not coping as a parent and therefore that the children would be better off living with the Father.
The Father’s evidence was also that after any disagreement with the Mother regarding the children the parents would simply not speak for a few days. Not for the first time, the Father’s evidence indicated a significant pre-occupation with his own interests and concerns and an inability to focus on what was best for the children. More often than not he equated his own wishes with what was best for the children.
The Father sought to rely upon some photographic evidence of the children, provided to the Court on an USB device in the course of the trial. I agree with submissions made by others that the photographs taken of the children do not show any relevant abuse or concerns more generally.
The Father made allegations about the Mother sending “pornographic images” of the children when she was simply sending pictures of the children to him alone. She said that she thought the Father would like to receive photographs of the children. Both responses, in my view, showed: (a) the Mother’s willingness to communicate with the Father and to include him in the lives of the children even while they are with her; and (b) the Father seemed always ready, indeed very opportunistic, to take the most innocent of action by the Mother and use it against her with a view to trying to make her appear a poor parent (and conversely, that he was the good and protective parent) in the eyes of the Court. Such matters, in my view, reinforce the general assessment I formed that the Father showed significant lack of parenting insight and a poor capacity to understand what is in the best interests of the children. His significant level of “self-focus” showed a significant level of immaturity. Among many places, this was very evident in the series of graphic TXT messages he sent to the Mother where he suggested that they could have sex together one particular night and then go back to “hating each other” the next day. Respectfully, whether true or used as “bait” (as he suggested to trap the Mother), it was all about him – not the children.
The Mother’s Submissions
The Mother's Written Submissions, filed on 8 February 2016, are set out in full as follows:
Parental Responsibility s61DA
1. Communication with the father makes the mother vulnerable to the father's manipulative and coercive behaviour. He says “I know how to manipulate her."
2. He has used her attempts to communicate about parenting (X scratched Y) to criticise her parenting.
3. He claims to have attempted to “bait” her with offers of sex to acquire information he can use against her.
4. He attempts to overbear her by threatening her with allegations of perjury, assault on a child, and child pornography. In answering His Honour as to the relevance of Mr A's attendance at a birthday party, the father said, “I had said not to do so and that made it relevant.” This is a man who expects to be obeyed. There is no room for consultation and joint decision-making.
5. The father's demeanour in Court demonstrated a belief in his superior knowledge and capacity. The father lacks insight into the limits of his own knowledge, eg, he insists the “sister wives photo” is proof of an illegal polygamous relationship.
6. The father is prepared to involve the children to impugn and criticise the mother.
7. The mother explained the communication between the parents succinctly: “there would not be a dispute if I did what Mr Senior wanted.” Despite that experience the mother’s preference would be for the father to be a part of the decisions. “I don’t think Mr Senior should be cut out”, “but I don’t think we would reach agreement.”
8. The Court will be confident that if sole parental responsibility is allocated to the mother she will keep the father informed of significant decisions and involve him in those decisions as much as she is able. By contrast equal shared parental responsibility will subject the mother to the father’s will.
Children's Living Arrangements s65DAA
9. The children have been living in a substantially shared arrangement since February 2015 despite the approximately two hour journey between the parent's homes. X is commencing pre-school in 2016 so the arrangement is no longer practicable. The Court has to determine with which parent the children should primarily live. Each parent seeks orders for the children to live with her or him and to spend time with the other parent.
10. The children have always lived and been cared for by the mother. It is only for approximately twelve months that the father has cared for the children from Thursday to Monday each second week. The evidence prior to that is that the mother cared for the children and the father worked. The family consultant has made a clear recommendation that the children should continue to live primarily with the mother. He says “continuity is better unless there are reasons for changing.”
Meaningful Relationships: s60CC(2)(a)
11. The Court will be confidant [sic] the mother will facilitate a meaningful relationship between the children and their father. Although in February 2015 she tried to use the absence of the father's name on the birth certificate to secure the return of the children to her care, there is no evidence that she ever withheld the children from him.
12. The father did withhold the children and has threatened to do so previously. Prior to Orders he failed to return the children due to travel difficulties - according to SMS he sent to the mother. The Court could not be totally confident the father would consistently facilitate the relationship with the mother.
Protection: s60CC(2)(b)
13. The mother makes no allegation that the children are at risk of harm in the care of the father, although the mother was not aware of the video footage of him questioning the children and that could raise some questions.
14. The father alleges the children are at risk in the care of the mother because of her inability to cope as a single parent. He asserts that smacking is abuse; that an altercation between the children is indicative of her failure to protect; that a 'cute’ photo of his son sent to him by the mother is child pornography; that bruises mean the mother fails to protect; and continuing association with his former friend and employee, Mr A, places the children at risk.
15. He proffers photos to substantiate his allegation. He tendered a video of a smiling, happy child claiming to have had his face smacked by the mother and his head smashed on the ground - an allegation that arose at least 12 months ago. The father alleges the police were informed but did nothing because he says the (omitted) police are “extremely lazy.” The father cannot conceive of the possibility that there was simply no substance to the allegations. The Court will place appropriate weight on this evidence: zero. It reflects the coercive and manipulative approach of the father as well as the father's arrogant belief that his opinion is always correct.
Additional Considerations: s60CC(3)
16. The children are too young to express strong wishes but according to the Family Consultant they have good relationships with each of the parents. There are no cultural issues to be taken into account and no domestic violence orders. The relevant issues are:
17. s60CCC3)(ca): the father does not pay child support. He asserts that the travel to see the children costs him $200 a fortnight and that he spends money on the children while they are in his care. He criticises the mother for the quality of her accommodation and seems to think that her combined Centrelink payments and part time work amount to affluence. It is likely that the father simply has no insight into the daily cost of raising two children. The father's affidavit asserts that he is going to open a business with a (omitted) but in oral evidence that is apparently on the backburner. How he intends to financially support the children is vague.
18. s60CCC3)(d): the children are used to living primarily with their mother. The Family Consultant has interviewed both parents and observed the children with them. He recommends a continuation of the current primary care. The time the children spend with the father will necessarily reduce due to the distance and the onset of formal education. This will result in a change in the children's circumstances but a lesser change than a change of residence to the father. The greater stability and continuity is achieved by the children living with their mother.
19. s60CC(3)(e): the practical difficulty of the distance between (omitted) and (omitted) (over two hours) was created by the father's move to the (omitted) following separation. Practically, the children can only spend time with the father on weekends and during school holidays.
20. The mother has requested orders that conclude the children's time with the father on Sundays due to the distance. It would be unrealistic to have the children travelling for at least two hours on a school morning, especially in circumstances where the father has a history of not being able to deliver the children before noon on a Monday under the current arrangements.
21. s60CC(3)(f): the father would have the Court believe the mother lacks capacity to care for the children. Apart from the issue of nail cutting, there is no evidence that the mother has failed the children in any respect. The mother has consistently been responsible for the children's day to day needs since birth. The father does not assert any history of problematic care and presumably would not have removed himself from the children's area had he held concerns.
22. The father's capacity to care for the children for longer than 4 nights is untested. His lack of insight, demonstrated by his USB, would raise some questions as to his capacity.
23. The father's cry to the Court during discussions about the start of pre-school was: “Maybe someone could accommodate me a bit.” This raises the question: does the father have the capacity to put the children's needs ahead of his own?
24. The Court knows nothing of the father's actual circumstances. It does not know his accommodation; he does not seem to know his employment plans. He has apparently considered the children's education but has not explained why the children would go to school in (omitted) as opposed to a closer school.
25. The father's logical support systems - his partner and his family members - are not on affidavit to assist the Court to form a view of the father's capacity. Presumably they would not have assisted his case.
26. The mother seeks the orders as sought in her case outline.
Submissions on behalf of the Respondent Father
The Father's Written Submissions, filed on 22 February 2016, are set out in full as follows:
If Your Honour does not rule in my favour, the orders sought in my affidavit, I will agree to Ms Scotts terms with only 3 changes _
1. I return the children before school starts on Monday morning.
2. We have joint parental custody.
3. I have the children for the full 6 weeks of the end of term school holidays and half the Christmas holidays, I will facilitate all change over so Ms Scotts doesn't have to any of the traviling.[sic]
May I also remind you of Ms Scotts indiscretions.
Ms Scotts has lied to the police the court and to a judge.
Ms Scotts has neglected and abused our 2 children.
What emotional damage has Ms Scotts done to X by telling him I am not his father. Which I will be seeking compensation for.
Your Honour.
I have no idea what I am doing I just want what is best for my children.
I acknowledge that the Father is self-represented and as he stated in his submissions (and in the course of the trial) he had little idea what he was doing, either in terms of providing evidence that would assist the Court, or in making submissions. Of greater concern to me was (a) specific contradictions in his attitude towards the Mother, and (b) his very concerning if not cavalier attitude toward parental relationships.
In relation to the former, on the one hand he made significant adverse allegations against the Mother. But at the same time, he professed his love for her and a desire to be re-united with her.
In relation to the latter, (as noted earlier in these reasons) he said to the Family Consultant that he would leave his current partner and his then new born baby and return to the Mother and the boys because he thought that they (i.e. the boys) needed him more than his partner and extremely young baby. In my view, (without being exhaustive) this attitude showed any or all of the following: (a) lack of insight into parenting responsibilities; (b) lack of insight into adult relationships; (c) lack of relevant maturity; and (d) lack of insight into what is in a child’s best interests in terms of stability and associated matters.
Submissions on behalf of the Independent Children’s Lawyer
There was some delay in the ICL providing her written submissions. When they were filed, she indicated that her position had not changed from her earlier expressed view in support of the Mother’s Orders sought.
The Independent Children’s Lawyer’s Written Submissions, filed 6th April 2016, were as follows:
1. The proceedings concern the parenting arrangements for X born (omitted) 2011 aged four (4) years and Y born (omitted) 2013 aged two (2) years. It was conceded by the mother in cross examination that the children are both born to the parties, an issue of controversy raised by the father.
2. The mother seeks, in summary, Orders for sole parental responsibility for the children, for the children to live with the mother and spend time with the father. Consequential Orders are sought by her in relation to communication, information and travel. The ICL wholly supports the orders as sought by the mother with the exception of the Orders for travel. No significant evidence was advanced in relation to that issue although the ICL has no significant opposition to the Orders as sought in that regard.
3. A Family Consultant Memorandum by Mr T was prepared on 15 April 2015. A Family Report was prepared by Dr B on 2 October 2015. Both documents were comprehensive for their respective purposes. Dr B was cross examined. In both documents a co-parenting relationship of significant dysfunction is described, particularly in relation to communication and decision making between the parties.
4. Despite this Dr B identifies that “X and Y appear to be developing well and to be comfortable in their relationships with both of their parents.” [FR15-44]. Dr B recommends that the mother remain the primary carer “unless it can be demonstrated that the children are at risk in her care.” FR 15 - 44]. It is submitted that such a risk has not been demonstrated. Dr B commented under cross examination that there was a benefit to the children in having continuity with one parent, the mother was competent and the children responded well to her.
5. The mother references her application for a reduction in the current time being spent by the children with the father to logistics. X will commence pre-school in 2016. The father lives, by virtue of a relocation post separation undertaken by him, on the (omitted) in (omitted). The mother lives in (omitted) and under cross examination confirmed no proposal to leave the area. There does not appear to be any other basis or reason of malice underlying her proposal. It is in accordance with the practical needs of the children.
6. The mother's proposal is intuitive to the children's needs and otherwise seeks Orders for regular time between the father and the children. Dr B commented under cross examination that the father managed the children well. There is no evidence to suggest that this relationship should not be supported. The mother proposes to do so.
7. With reference to s61DA, the mother seeks an Order for Sole Parental Responsibility and maintained under cross examination that the parties would be unlikely to reach an agreement and SMS communication would be best. She did indicate a willingness to consult and conceded that mediation would be a good option in circumstances of a disagreement.
8. Mr T [sic – Mr T] commented in the memorandum “A full discussion with the father around the mother proposal was not conducted due to the father's clearly stated opposition to any arrangement that varied from his proposal.” [CM 2-35] This does not auger well for cooperative decision making. Based on the material filed, the reported observations of Dr B and Mr T [sic – Mr T] and the evidence of the parties, the children's best interests at this time would be met by an Order for sole parental responsibility as sought by the mother and the children should live with the mother. In circumstances where it is submitted that these Orders would be in the children's best interests, no further submission will be made with respect to a shared care arrangement other than to note that neither party seeks an Order for shared care and distance precludes such an arrangement from being reasonably practicable.
9. The mother proposes arrangements for time between the children and the father in accordance with the recommendations of Dr B [FC 17-50]. The positive relationship the children reportedly have with the father has developed while they have been in the care of the mother. There is no evidence advanced to suggest this is in jeopardy of being compromised. The father's willingness to support a meaningful relationship between the children and the mother if the living arrangements were reversed is untested. The arrangements proposed by the mother appear to enable the facilitation of a meaningful relationship between the father and the children with reference to s60CC(2)(a).
10. No compelling evidence was advanced regarding any risks in the mother's home which would give rise to concern regarding s60CC (2)(b). By contrast the videotape made by the father in his home was concerning. The mother was forthcoming in relation to the criticisms made of her parenting by the father which included a concession regarding occasional smacking. The concerns regarding pornographic photographs appeared to be exaggerated by the father noting that one of the examples had been sent to the father by the mother as she thought it was ' cute' . That the mother would have sent this to the father if there was another intent was implausible.
11. With reference to the additional considerations in s60CC(3)
(a) Dr B did not identify the views of the children as a relevant factor for determination of this matter;
(b) The children have a good relationship with each parent;
(c) Not relevant;
(ca) The father is not paying child support. He was critical of the mother's circumstances but offered no solutions to assist her.
(d) The proposal of the mother would promote consistency in the care arrangements for the children.
(e) The proposed arrangements have been tested and the mother plans to stay in (omitted). The reduction in time is proposed to meet the schooling commitments of the children.
(f) Emotional needs only of the father.
(g) Not applicable.
(h) Not applicable.
(i) The father has been elliptical with the information about his arrangements and his partner. The mother confirmed under cross examination that the boys should be involved in their siblings life and have a relationship with their sister.
(j) Not relevant to the current issues for determination if Orders are made as proposed by the mother.
(k) Not applicable.
Consideration & Disposition
I remind myself of the relevant considerations from Part VII of the Act and the appropriate way to proceed in determining what Orders are in the best interests of the children as summarised by Brown J in Mazorski v Albright.[4] There her Honour helpfully set out what she termed “the twin pillars” of Part VII of the Family Law Act 1975 (“the Act”), namely, subject to any relevant statutory refinement, the children of a relationship should have, to the degree that it is in their best interests to do so, a meaningful relationship with both parents and equally, the children of the relationship should be protected from any relevant risk or harm.
[4] Mazorski v Albright (2008) 37 Fam LR 518. Brown J’s decision has been cited with approval in a significant number of Full Court judgments, including McCall v Clark (2009) 41 Fam LR 483, Sigley v Evor (2011) 44 Fam LR 439, and Maluka v Maluka (2012) 45 Fam LR 129.
In detail, in Mazorski v Albright at [3] – [6], her Honour said:
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s.60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the Court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the Court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the Court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the Court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
...
[199] Section 65DAA (2) – (4) is intended to ensure that the Courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Having due regard to these considerations, I accept and adopt as the Court’s own the written submissions of both the Mother and the ICL. Those submissions and the evidence to which they refer, lead, in my view ineluctably, to the Orders as proposed by the Mother. They are, in my view, clearly the Orders that are in the best interests of the children.
The Father’s attitude and approach has not changed since the litigation began. In the light of all the evidence, the Court cannot be confident that the Father’s self-centredness and lack of maturity will change or relevantly improve. He has demonstrated some concerning manipulative and controlling behaviour from when the matter commenced with the recovery Order, to when he missed his interview with the family consultant, to the final hearing. All these matters (and his lack of appreciation of what “commitment” (or lack of it – as noted by the family consultant) means leads the Court to the conclusion that if the children were to live with the Father, the Court could not be confident that he would facilitate or promote the children’s relationship with the Mother. The Court is confident that the Mother will continue to promote the children’s relationship with the Father.
Among other things, the Family Consultant who prepared the s.62G Report (Exhibit A) noted the dysfunctional parenting relationship.
In addition to what has already been said earlier in these reasons, the Father’s evidence, particularly but not only in relation to him attempting to “bait” the Mother through the use of TXT messages to bolster his case and to undermine hers, is, in my view, sufficient to rebut the presumption in s.61DA in relation to equal shared parental responsibility. The evidence in total, in my view, readily rebuts the presumption.
Doubtless of greater moment from the Mother’s perspective, the matters to which I have referred lead to the Court making an Order for sole parental responsibility in the Mother’s favour.
I accept the Family Consultant’s evidence (and that given by the Mother) that there is nothing (other than the Father’s self-serving allegations) to support any of the claims of mis-treatment of the children.
I accept also the Mother’s evidence (which in many respects was supported by the Father’s evidence – but not as he had intended) that the communication between the parties is quite fraught, not least in the ability of the parties (but the Mother in particular) to trust the other parent. That said, much more so than the Father towards the Mother, she was still willing to involve the Father in the children’s lives.
The Mother’s Orders Sought, which in particular seek and the Court now Orders, provide that sole parental responsibility reside with the Mother. Such an Order obviates the need to consider s.65DAA.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 11 August 2016
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Consent
0
2
2