Seaford and Seaford
[2007] FamCA 1460
•17 December 2007
FAMILY COURT OF AUSTRALIA
| SEAFORD & SEAFORD | [2007] FamCA 1460 |
| FAMILY LAW - CHILDREN - parenting - presumption of equal shared parental responsibility applying, should there be order for child to spend equal time with both parents - lack of communication and co-operation - relevant research - (Jennifer McIntosh & Caroline Long, The Child Responsive Program: Operating within the Less Adversarial Trial, July 2007) - child's wishes - expert evidence. |
| Family Law Act 1975 (Cth) ss 60B(1), 60CC, 61DA, 65DAA(1) and (2) |
| HUSBAND: | Mr Seaford |
| WIFE: | Mrs Seaford |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | DGF | 2640 | of | 1999 |
| DATE DELIVERED: | 17 December, 2007 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Brown J |
| HEARING DATE: | 20, 21, 22, 23 August, 3 September, 5 November, 2007 |
REPRESENTATION
| THE HUSBAND: | In person |
| THE WIFE: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms. Dowler |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | McCarthy Hoey |
Orders
That all existing parenting orders and injunctions relating to the child of the marriage, a son, (“the child”) born … September, 1996 be discharged as and from 20 December, 2007 or the last day of the current school term, whichever occurs earlier.
That subject to paragraph (9) hereof, the husband and wife have equal shared parental responsibility for the child.
That as from the earlier of 20 December, 2007 or the last day of the current school term, the child live with the wife as follows :
(a)Save during the long summer school holiday period and as provided in paragraph (7) hereof, during each alternate week, commencing at the conclusion of school :
(i)on the first Friday of the first school term in 2008 and each alternate year thereafter; and
(ii)on the second Friday of the first school term in 2009 and each alternate year thereafter.
(b)Subject to paragraph (4)(c) hereof, for one half of the long summer school holiday period, at times to be agreed and failing agreement :
(i)the first half in 2007/2008 and each alternate year thereafter; and
(ii)the second half in 2008/2009 and each alternate year thereafter.
(c)From 12:00 noon on Christmas Day until 12:00 noon on Boxing Day 2008 and each alternate year thereafter.
(d)As otherwise agreed between the parties.
That as and from the earlier of 20 December, 2007 or the last day of the current school term, the child live with the husband as follows :
(a)Save during the long summer school holiday period and as provided in paragraph (7) hereof, during each alternate week, commencing at the conclusion of school :
(i)on the second Friday of the first school term in 2008 and each alternate year thereafter; and
(ii)on the first Friday of the first school term in 2009 and each alternate year thereafter.
(b)Subject to paragraph (3)(c) hereof, for one half of the long summer school holiday period, at times to be agreed and failing agreement :
(i)the second half in 2007/2008 and each alternate year thereafter; and
(ii)the first half in 2008/2009 and each alternate year thereafter.
(c)From 12:00 noon on Christmas Day until 12:00 noon on Boxing Day in 2007 and each alternate year thereafter.
(d)As otherwise agreed between the parties.
That notwithstanding the provisions of paragraphs (3) and (4) hereof, the parties do all things reasonably necessary to ensure that the child spends time :
(a)with each of his parents on the child’s birthday;
(b)with the husband on Fathers’ Day; and
(c)with the wife on Mothers’ Day;
and in the absence of agreement, the following provisions shall apply :
(i)the parent with whom the child is not living on his birthday shall spend time with him :
A.if the birthday falls on a school day, from the conclusion of school until 6:30 pm.; and
B. if the birthday falls on a non-school day, for four hours at times to be agreed, and failing agreement from 10:00 am. until 2:00 pm. on the birthday;
(ii)if the child would not otherwise live with the husband on Fathers’ Day, he shall spend time with the husband from 10:00 am. until 6:00 pm. on Fathers’ Day; and
(iii)if the child would not otherwise live with the wife on Mothers’ Day, he shall spend time with the wife from 10:00 am. until 6:00 pm. on Mothers’ Day.
That to give force and effect to paragraphs (3) and (4) hereof, the following provisions apply :
(a)the first half of the long summer school holiday period is deemed to commence at the conclusion of school on the last day of the school year and conclude :
(i)if there are an even number of days in the period, at 5:00 pm. on the last day of the first half of the period; or
(ii)if there are an odd number of days in the period, at 12:00 noon on the middle day of the period;
(b)the second half of the long summer school holiday period is deemed to conclude at the commencement of school on the first day of the first term of the new school year and commence :
(i)if there are an even number of days in the period, at 5:00 pm. on the last day of the first half of the period; or
(ii)if there are an odd number of days in the period, at 12:00 noon on the middle day of the period.
That during the first week of the first school term in each year the child shall live with the parent with whom he spent the second half of the immediately preceding long summer school holiday period and to illustrate the operation of this order :
(a)The child shall live with the husband for the second half of the long summer school holiday period in 2007/2008 and remain living with him until the conclusion of school on the first Friday of the first school term in 2008; and
(b)The child shall live with the wife for the second half of the long summer school holiday period in 2008/2009 and remain living with her until the conclusion of school on the first Friday of the first school term in 2009.
That for the purpose of changeovers the following provisions apply :
(a)During school terms, changeovers shall occur at the child’s school.
(b)The parent with whom the child is to live for the following week, or his or her nominee, shall collect the child.
(c)The parent with whom the child has lived in the preceding week be and is restrained from attending at the child’s school at a changeover time unless an event, activity or function referred to in paragraph (12) hereof takes place at that time.
(d)Notwithstanding the provisions of sub-paragraphs (8)(a) and (b) hereof, and in the discretion of the parent with whom the child is to live the following week, the child may travel to that parent’s home by school bus or public transport, in lieu of a changeover at the school.
(e)Changeovers which do not occur on a school day shall occur at the McDonald’s restaurant at N on the … Road, or such other place as the parties agree.
PROVIDED THAT the husband be responsible for the payment of all school fees and other costs (including school uniforms, books and excursions) the child may attend P School, commencing in term 1 in 2008, and the husband be at liberty to do all things reasonably necessary to enrol him in P School.
That if the husband does not intend to enrol the child at P School to commence in term one in 2008, he advise the wife of that no later than 11 January, 2008 and in those circumstances :
(a)The child continue to attend N Primary School in 2008; and
(b)the parties consult with each other about the school he is to be enrolled in from 2009, as provided in paragraph (21) hereof.
That the child may communicate by telephone and email with the parent with whom he is not then living and each parent do all things reasonably necessary to facilitate such communication.
That each of the parties be at liberty to attend the child’s school for events, activities and functions routinely attended by parents, including (but not limited to) parent/teacher interviews, school functions, concerts and sporting events.
That each of the parties be permitted to obtain from the child’s school, newsletters, school reports, school photograph order forms and like documents routinely provided to parents, and each be responsible for the costs (if any) of such provision to him or her.
That a sealed copy of this order be served by the husband as soon as practicable on the principal of N Primary School and, on the child’s enrolment at P School or other school, the principal of P School or such other school.
That each of the parties be at liberty to attend any sporting or martial arts competition or event in which the child is competing or otherwise involved.
That notwithstanding any other order made this day, if the child is to compete in any of the following sporting events and the event does not fall within a period in which the child lives with the husband, the husband shall have such additional time with the child as is necessary for the child to attend and participate in such event PROVIDED THAT the husband provides to the wife no less than 28 days written notice of :
(a)the date or dates of the event;
(b)a copy of the official entry form; and
(c)the times at which he shall collect and return the child.
Events
A.Victoria State Championships
B.A.C.T. Championships
C. National Championships
D.Metro Final
E. Northern Final
F.Victorian Challenge.
That the husband shall be responsible for the costs of the child’s participation in an event referred to in paragraph (16) hereof.
That the wife be at liberty to attend any event attended by the child pursuant to paragraph (16) hereof.
That each of the parties do all things reasonably necessary to ensure the child’s continued attendance upon Ms. M of Lifeworks, or other counsellor recommended by her, for so long as she (or such other counsellor) considers necessary and :
(a)the husband be responsible for the costs of such counselling (if any); and
(b)each of the parties be at liberty to discuss the child’s progress with Ms. M and, if requested by her, to attend any counselling session.
That each of the parties advise the other as soon as practicable of any serious illness or injury experienced by the child when in his or her care and authorise each treating medical practitioner or like professional to discuss the child’s condition, treatment and prognosis with the other.
That in the absence of agreement to the contrary, when it is necessary for the parties to consult about a major long term decision, the consultation shall be initially in writing (and be child focused and non-derogatory) and if no agreement can be reached, the parties shall attend Primary Dispute Resolution.
That for the purposes of the preceding paragraph, major long term decisions include decisions about the child’s education, health, religion and place of residence if a proposed change of residence of either party would interfere with the residence arrangement contained in these orders.
That each of the parties be and are hereby restrained from :
(a)denigrating the other or members of the other’s family to the child or in his presence or hearing;
(b)physically disciplining the child; and
(c)discussing these proceedings and any evidence adduced in the proceedings with the child or in his presence or hearing.
That a copy of the reasons for judgment herein may be provided to :
(a)Mr. S;
(b)Ms. M;
(c)the principal of any school attended by the child and, in his or her absolute discretion, any teacher, counsellor or other professional working with the child through the school;
(d)the Department of Human Services and Victoria Police investigating any notification or allegation relating to the child.
That each of the parties keep the other advised of any change in his or her residence and provide the other with a current telephone number on which the child can be contacted during times he lives with that party.
That the independent children’s lawyer be discharged at the expiration of one month or, in the event a Notice of Appeal is filed, determination of such appeal.
That all extant applications be otherwise dismissed.
That these proceedings be removed from the List of matters awaiting finalisation.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED that publication of this judgment under the pseudonym Seaford & Seaford is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGF 2640 of 1999
| MR SEAFORD |
Husband
And
| MRS SEAFORD |
Wife
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The husband and the wife married in July, 1987 when the husband was almost 28 and the wife was 27. The wife arrived in Australia from Mauritius earlier in 1987; the marriage may have had something to do with her obtaining permanent residency here, but that is not of relevance to these proceedings. The relationship was probably never a very functional one and the parties did not live together until February 1996, almost nine years after their marriage. Their son was born later that year, in September. They separated on 15 April, 1999, when the wife and the child left the former matrimonial home. The court is asked to determine the time the child should have with each parent and who should have parental responsibility for him.
LEGAL PRINCIPLES
The provisions in the Family Law Act 1975 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).
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.
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.
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)).
Section 60B of the Act sets out the objects of the part of the Act dealing with children and the principles underlying them, 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 interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
The objects point the way to an optimum outcome. The first two are picked up in s.60CC(2) as the primary considerations when determining where children's best interests lie. The second is also reflected in the circumstances in which the presumption of equal shared parental responsibility is not to apply, those circumstances relating to findings about violence; see s.61DA(2).
EVIDENCE
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
The husband relied upon an amended application for final orders filed 12 April, 2007 and an affidavit of evidence in chief affirmed by him on 9 June, 2007. He also relied on an affidavit sworn by Mr R on 6 June, 2007. Mr. R was a neighbour of the husband for some time and gave evidence of an incident he observed which involved the husband and wife. The father and Mr. R were cross-examined.
The husband also relied on an affidavit sworn by his sister (the child’s aunt) on 5 June, 2007, relevant mainly as evidence of the aunt’s willingness, together with her husband, to contribute to school fees for the child at the P School. She was not cross-examined.
The husband acted for himself and the documents on which he relied were prepared by him.
The husband also relied (specifically by reference in his affidavit) on admissions made by the wife in an affidavit sworn by her on 2 December, 2005 and filed on 5 December, 2005 (“her first affidavit”).
The wife relied on an amended response filed on 30 April, 2007 and an affidavit of her evidence in chief sworn on 4 June, 2007. She also relied on an affidavit sworn by her adult son from an earlier relationship, Mr K, on 15 August, 2007. She and Mr. J were cross-examined.
At trial the wife represented herself but she had been legally represented earlier in the proceedings and the documents to which I have referred were prepared by her then solicitors.
The independent children’s lawyer (ICL) relied upon psychiatric reports of the parties prepared by Dr. K in March 2006, which were annexed to an affidavit sworn by him on 9 March, 2006. No-one sought to cross-examine Dr. K. The ICL also relied upon a family report prepared by a psychologist, Mr S; the report, dated 15 June, 2007, was annexed to an affidavit sworn by Mr. S that day. Mr. S was cross-examined.
Early in the proceedings a family report was prepared by Ms W, a psychologist. An affidavit, sworn by her on 27 February, 2006 and filed on 7 March, 2006, annexed a report dated 25 February, 2006. Subsequently, Ms. W refused to be further involved in the case, allegedly as a result of the father contacting her to complain or seek clarification about a particular point. The reasons given by Ms. W for her withdrawal were, I am satisfied, spurious.
On 3 September, 2007 (the fourth day on which evidence was given) Ms. W appeared in the courtroom, in a flustered state. No party had sought to cross-examine her and I remain unsure why she attended. As she was present, the ICL called her. She gave some brief evidence, making it clear that she had to leave this court in time to appear, in a personal rather than a professional capacity, in the County Court.
Ms. W may have been under pressure relating to that County Court appearance; whether for that or other reasons she was sometimes close to incoherent. Asked for her address, she said she supposed she lived in a post office box and went on to talk about being locked out of premises. She had no note of the day or days on which she met with the parties. Her reliance on something she either read or saw in the media, relating to a criminal (and unrelated) trial, to justify what I am satisfied was a capricious withdrawal from the matter raised real concerns about her judgment and expertise.
I read Ms. W’s report and I do take note of her recommendations made in February 2006. Her refusal to be further involved in the case meant the court had the benefit of Mr. S’s report, prepared in June 2007, some sixteen months later. Mr. S presented as an insightful and reflective witness, and his evidence was cogent and illuminating. I place weight on it.
The child has been attending counselling with Ms M of Lifeworks, initiated by the husband. As noted by Mr. S, that has been useful for the child. The wife denied being invited to participate in that counselling although Ms. M told Mr. S that the wife was invited, in writing as well as by telephone. The attitude she expressed to Mr. S (that counselling was not necessary) is consistent with her alleged lack of willingness to be involved in it. Ms. M was not called.
The husband is 48. He is an engineer and has been employed with MP Ltd. since 1981. He lives on a property owned by him in H.
The husband presented as quietly steadfast throughout the proceedings. Although he had initially sought that the child live with him, at the commencement of the trial he advised that, having read the report of Mr. S, he was prepared to rely on his recommendation, which was for the child to spend equal time in the two homes. He limited his cross-examination of the mother and other witnesses to a few relevant areas and was not drawn into argument when cross-examined by the mother. He was an impressive witness, and I am satisfied he did his best to truthfully recollect events which occurred in the past and was candid about his present situation and his aspirations for the child.
Dr. K interviewed the father on 16 February, 2006 and nothing in his opinion was inconsistent with the way the father presented in court. Dr. K’s opinion was in these terms :
In the interview [the husband] presents very well indeed. He is obviously an intelligent man with a relatively senior professional position, actively involved in many things. He gives the impression of having provisional traits in his personality – that he’s precise, very involved in whatever he takes on. But I’m not suggesting that this is in a sense a disadvantage.
But in the interview there was nothing at all to suggest that he has any psychiatric disturbance and he gives the impression of being intensely inappropriately involved with his son and very concerned for the son’s welfare.
There is nothing in his presentation that raises any significant concern about his ability to appropriately parent a child and contribute to that child’s development.
I did note that [the wife] sees him as aggressive and pursuing her.
But from my point of view and my assessment of him I see nothing to indicate any concern for the child’s welfare in his care.
The husband’s evidence was that he may have another child but he does not know if she is his. He was in a relationship, a couple of years ago, with a woman called E; she subsequently gave birth to a daughter, now aged two. He was not named on the birth certificate. When told about the birth, he questioned paternity. He had some contact with the child but has not seen her since she was four or five months old. No claim for child support has been made. Asked about this Mr. S could not recall whether the father had raised the existence of this child with him. He said the father’s response was indicative of someone very private and reserved, which was congruent with his presentation.
The wife is 47 and is not in paid employment. She lives in rented accommodation in N.
As noted earlier, the wife was legally represented when her initial and amended responses were filed and when affidavits were sworn by her. The affidavits were in English and there was no attestation from an interpreter. On the first day of the trial, after I refused to adjourn the trial, she advised that she needed to use a French interpreter, French being her first language. The trial was adjourned for a day to enable an interpreter to be obtained and he was present thereafter whenever the case proceeded.
It is not for the court to decide whether a person’s English is adequate to give evidence without an interpreter; this is necessarily a subjective assessment, best made by the individual concerned. Even those with good English language skills may find it difficult to communicate under the stress of litigation and a party is entitled to have the assistance of an interpreter, whether to translate the whole of the proceedings or to be available to assist, on request. Courts are properly criticised if they do not allow a party or witness to use an interpreter.
However, in this case I must find that the mother’s alleged need for an interpreter was undermined by almost everything that happened after one was obtained. Given the option of having the interpreter translate the whole of the proceedings, or be available to assist, she chose the former. What followed was not edifying. The wife frequently spoke in English, which was fine. However, she frequently interrupted the interpreter, breaking in on his French translation of the question and correcting or modifying his subsequent English translation of her answer, when she answered in French. When it became clear to her that answers given by her in French were understood by me, she commenced to whisper her answers to the interpreter, while turning completely away from the bench. Her demeanour was petulant and, often, aggressive. Several times she slammed papers or her hands down on the witness box and threatened to leave; on one occasion it took some persuasion to dissuade her from that course. When she was angry, which was often, she spoke in English, loudly. In the witness box and when sitting at the bar table she interjected, in English, when others were speaking; she would not or could not contain these outbursts. Tapes of messages left by her on the father’s phone in 2004 and 2005 show a fluent command of insult, invective and obscenity, in English.
On several issues the wife dealt with evidence which was potentially damaging to her case by straight denials, in circumstances where I have no hesitation in finding she was lying. One illustration is her denial of any incident such as that observed by Mr. R; another is her evidence about the reason she changed the child’s school and the aggression she displayed towards the son of a former friend with whom she had a falling out. She was not prepared to accept responsibility for decisions which impacted on the child (such as changing his school, his school attendance record and her physical discipline of him), blaming the husband for matters squarely within her control and giving inconsistent accounts of events and the reasons for them. She was unable to accurately summarise the time the child was spending with her at the time of the trial, consistently saying he spent less time with his father than he actually did, and her attitude to the father was hostile and accusatory. I cannot find her a reliable witness.
Dr. K interviewed the wife on 21 February and his concerns about her presentation were consistent with her presentation in court. His opinion was in these terms :
From the history that she provides and her presentation in interview I would not be able to make a formal psychiatric diagnosis. However, there are some things that concern me that come from her history and presentation.
1.I was somewhat concerned to the extent of depression that she must have experienced after the breakdown of her first marriage.
2.In interview she presents as a rather immature and petulant way.
3.She seemed to have a somewhat paranoid attitude to the possibility of her husband ([Mr Seaford]) having other relationships. (Of course I can’t say with any degree of confidence that concern is/was justified or not).
4.I was concerned about her projection of responsibility outside herself – for example, her statement that she couldn’t work all the time she’s been here in Australia because she’s too stressed by [the husband].
Those issues all raise some concerns in my view.
However, the critical issue does appear to be whether or not the behaviours described in the affidavit are correct or not. In this regard of course I always have to keep in mind the uncertainties that there are in affidavits related to the Family Court matters.
But it seems that if we accept the documentation there have been a lot of displays of rage – often inappropriate, displays of aggression, and difficulties in terms of relationships with people, physical punishment that appears to have been inappropriate. She denies those things and I can’t say with any degree of confidence that they are correct or not. However I consider her presentation in interview (with the concerns I have expressed) are not inconsistent with somebody who would behave in that way.
If in fact she does behave in that way I say it reflects considerable personality dysfunction, although I would prefer not to use a label of Formal Personality Disorder.
And if those statements are correct it certainly indicates that there are difficulties in terms of how she would relate to a child.
So once again the critical issue is whether the observations reported in the affidavit are accurate or not. If they are then it reflects quite significant dysfunction on her part. It raises serious questions about her parenting ability.
Those observations if correct would suggest she is a very self centered impulse ridden person, not sensitive to other people’s points of view and certainly not sensitive to a child’s point of view.
Mr. R was an impressive and detached witness. I have no hesitation in accepting his account of what he observed. I am satisfied that the mother lied when she said she was never present at any incident of the sort described by Mr. R.
Mr J is the wife’s son from an earlier marriage. He is now 22. While still at school he left his mother’s home and went to live with his grandmother, starting Year 11 afresh from her home. Mr. J impressed me as a loyal and decent young man. He attributed the move to his grandmother’s home to his perceived need to remove himself from a peer group in the N area, rather than to problems he was having with his mother. He did say that he knew his mother would not accept him leaving so “I just left and went to […]”, which was where his grandmother lived.
The wife’s evidence was that the husband was responsible for her older son leaving home, a proposition Mr. J did not corroborate. In oral evidence the wife denied that Mr J had gone to live with his grandmother, saying he had gone to live with friends or a particular friend. Again I must find that she was not telling the truth.
PROPOSALS
The husband proposed that the child spend equal time with both parents in blocks of time, so that each share structured week days and unstructured weekend time with the child. He adopted the recommendation of Mr. S for arrangements which would allow the child to attend sporting competitions. He sought that the child attend P School and was prepared to be financially responsible for the costs and expenses of that schooling. The arrangement he sought would result in the child spending two more nights a fortnight with him than he presently does.
The wife sought that the child’s time with his father be reduced. During school terms he should spend time with his father from the conclusion of school on Friday until Sunday evening, in each alternate weekend. The arrangements for half school holidays should remain. She alone should be responsible for decisions about health, education and religion although she would discuss issues relating to schooling. Such an arrangement would mean the child would spend two nights a fortnight with his father, in lieu of the current five.
The independent children’s lawyer proposed that the child live with each parent in alternate weeks, with changeovers after school on Friday during school terms. That arrangement should continue to operate during school term holidays and they should share the long summer holiday. The child should continue to attend counselling with Ms. M and the husband should be able to take the child to sporting competitions. Provided the husband pays all school fees and related costs, the child should attend P school. Otherwise, the parties should share equally in parental responsibility for the child.
Litigation History
Earlier proceedings between the parties for parenting orders resolved when final parenting orders were made, by consent, on 10 November, 1999. The husband (the applicant) had sought contact with the child. The orders set in place a contact regime built around the husband’s employment rostered days off, on public holidays and during the husband’s leave. Both parties were legally represented.
On 8 March, 2000 the parties filed an application seeking that final property orders be made, by consent. Again, both were represented. On 8 March, 2000, final orders were made. A preamble to the orders noted that although the parties were married on 31 July, 1987, cohabitation did not occur until April 1996, that there had been little financial interaction between the parties and that the husband was the sole registered proprietor of the former matrimonial home at N, having purchased the property prior to the date of the marriage. The orders provided for the husband to pay to the wife the sum of $15,000; in return the wife acknowledged that she had no interest in the N property. Otherwise, each of the parties was to keep what he or she had.
A decree nisi of dissolution of marriage was pronounced on 25 August, 2000 and became absolute on 26 September, 2000.
On 22 November, 2005 the husband filed an application seeking an order that the child live with him and that the child’s contact with the wife be as agreed between the parties. He sought an injunction restraining the wife from abusing, insulting, belittling, rebuking or otherwise denigrating the husband in the presence or hearing or the child and that both parties be restrained from discussing the proceedings in the child’s presence or hearing.
On the same day the husband filed a notice of child abuse in which he alleged that the wife used excessive and detrimental physical punishment towards the child and that the child disclosed that his mother did not get along with anybody, including himself, and queried whether his mother should be on medication.
On 24 November, 2005, by consent but without an admission of the necessity for such an order, the wife was restrained, until further order, from administering any form of physical chastisement to the child. An order was made for the child to be separately represented.
On 9 December, 2005 the husband obtained an intervention order against the wife, to last until 9 December, 2006. His evidence was that he sought that order as a result of continued abusive messages and threats left on his telephone answering machine. One such message, left on 3 August, 2005 at 12:30 am. was played to the court. It included the following :
. . . you fucking idiot. I’ll kill you, I’m going to bloody kill you arsehole. Don’t come in front of my door, I’ll get a knife and kill you . . . I’ll get a knife and kill you.
On 16 December, 2005 all previous contact orders were discharged, by consent. Orders provided for the father to have contact with the child on each alternate weekend from Friday afternoon to Monday morning, on each alternate Monday from 5:00 pm. to the commencement of school on Tuesday, on each alternate Wednesday from 5:00 pm. to the commencement of school on Thursday, for half of school term holidays, for some 17 days in the coming school holiday period and on Christmas Day. Each of the parties was ordered to attend upon a child psychologist for the preparation of a family report and upon a psychiatrist for the purpose of a psychiatric assessment. It was pursuant to those orders that the parties saw Ms. W and Dr. K.
On 2 March, 2006 the orders of 16 December were varied; the child was to be with his father overnight on each alternate Thursday rather than each alternate Wednesday and the particular weeks that the child would be with his father in school term holidays were specified.
The orders for the husband to spend time with the child which operated at the time of trial were the orders made on 16 December, 2005, as varied by the orders of 2 March, 2006. The effect of the orders, putting aside provisions referable to school holidays and special days, is that the child is with his father from 5:00 pm. Friday until the commencement of school Monday in each second week. In the other week he is with his father from 5:00 pm. Monday until the start of school on Tuesday and from 5:00 pm. Thursday until the start of school on Friday. Thus, he spends five nights a fortnight with his father during school terms and the balance of time with his mother. In broad terms he spends half of each school holiday period with each of his parents. Subsequent interim orders altered changeover arrangements and regulated other aspects of parenting but did not vary the basic contact framework.
On 6 April, 2006 further orders were made, providing for the husband to collect and deliver the child at school. The husband sought that order after an incident on 27 February, 2006 at McDonalds (which had been the changeover place) in the course of which (the husband alleged) the wife parked her car in the middle of the driveway, got out of it and abused him, while the child sat next to him. I accept his account of that event.
The orders of 6 April, 2006 also provided that if the child were to compete in the Victorian or National championships, the husband was to have contact with him for the purpose of allowing that participation, provided he gave the wife no less than 28 days written notice of the dates, the official entry form and the time he would collect and return the child. An order provided that each of the parties undertake a parenting course as recommended by the child representative; a note to the order recorded that each of the husband and wife denied there was any necessity for them to do so but agreed to allay the concerns of the child representative. Each was restrained by injunction from contacting the other while the child was in the other’s care.
A theme throughout the case was the child’s involvement in sport and marshal arts. The husband’s evidence was that the child has loved sport since he was very small. He was always practicing, so the husband took him to the sporting facilities at N, which is used by lots of children who love the challenges there. The husband’s evidence was that the wife initially supported this activity but now sees it in a different light. From her perspective it is an activity promoted by the husband rather than by her son, motivated by the husband’s desire to control her time with the child.
To put this evidence in context I will summarise the most relevant evidence relating to competitive aspects and training.
The child is member of a sporting club. Members practise each Wednesday between 6:00 pm. and 7:00 pm. and they meet on one Saturday per month at the N club, for competition. The father’s evidence, which I accept, is that training is not essential but it is advisable, as in all endeavours. The child does not go to the practise sessions from his mother’s home.
The competitive calendar is fixed in advance and includes the following :
· The Victorian State championships are a two day event. If they are held some distance away travelling can make it a three day event. The child has attended in the last three years.
· The ACT championships are open to all competitors within Australia and overseas. This is a two day event, once a year. This competition is of high standing and to succeed there is a “big feather in the cap”. The child attended this year.
· The National championships are open to competitors from Australia and overseas and occur once per annum. The venue changes and competitors must qualify before competing. At this stage the child is not likely to qualify this year.
· The Metro final involves six or seven competitions, always on a Sunday. Competitors must be there between 9:00 am. and about 2:00 pm. but driving can add up to one and a half hours. This is a series of events in which competitors accumulate points and, in due course, the competitor with the most points is awarded first place and a trophy.
· The Northern final runs on the same lines as the Metro final, but is the Victorian country association. Again, it involves the accumulation of points. The final is on a Sunday and as it can be some way away (for example, near the New South Wales border) it is sometimes best to stay overnight.
· The Victorian Challenge is a warm up to the State championships and occurs about a month before that event. It is a team event and was described by the husband as being the child’s “true passion”.
The husband pays all subscriptions for the child to attend these meetings. His evidence was that he was happy for the wife to take the child, and to attend the meetings, but that she had not “taken it up”. His evidence was of a willingness to swap weekends if a sporting activity which occupied a full weekend occurred on a weekend when the child was with his mother, as it was important she has non-school time with the child, too.
The child also enjoys martial arts. There are classes on Monday, Wednesday and Friday (or alternately, Saturday). He goes to classes with his father on Fridays when he is with him, or on Monday or a Saturday. He had been going twice per week but recently it has been down to once per week. Again, this activity is not actively supported by the wife.
PRIMARY CONSIDERATIONS
When determining what is in a child’s best interests 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.
These are consistent with the objects set out in s.60B(1).
The husband alleged that the wife has been physically violent and verbally abusive to him, and continues the verbal abuse. He also alleged that she physically assaulted the child, through inappropriate discipline.
The husband alleged that on 5 June, 1999, the wife threw a brick through the loungeroom window of his home. In her first affidavit she admitted that behaviour. I accept the husband’s evidence that Mr J was in her car at the time.
The husband alleged that on 2 July, 1999 the wife came to his home, unbolted the gate catch to gain entry to the property, smashed the window pane next to the door, and was verbally abusive, when the child was with him. A police report was made. I accept his account of this.
The husband alleged that on 12 November, 2000 the wife threw a boulder through the rear window of his car window and yelled out “don’t fuck with me”. In her first affidavit, the wife admitted the incident. Having made that admission she deposed “my actions arose as a result of harassment from the applicant”; no details were given. As a result of that behaviour the husband sought and obtained an interim intervention order on 24 November, 2000. He did not pursue his complaint. I accept his evidence it was withdrawn, after negotiations between their respective solicitors, on the basis the wife would consent to changes to the orders to reinstate Monday contact.
The husband’s evidence was of regular abusive phone calls, one of which I have referred to earlier. I accept his evidence of the pattern of calls. The tenor of the calls can be gauged from a message left in early 2004 in these terms :
I hate you so much, you wrecked my life fucking arsehole. I’m going to get you, I’m going to fire your house one day, I’m gunna put fire in your house and kill you inside like a fucking dog. I never hated anyone like you so much, fucking idiot, you wrecked my fucking life you arsehole, son of a bitch, poofter, gay. This lady I don’t know, she’s desperate going out with you, fucking bitch she is, stupid bitch, fucking idiot. I’m going to do that one day, fucking idiot, arsehole, poofter, you son of a bitch.
The husband alleged that on 13 March, 2005 the wife came to his house, to collect the child. He subsequently heard the sound of a gate crashing, ran into the street and saw that she had thrown a household rubbish bin onto his car. This was the incident which was observed by Mr. R. Before me the wife denied any incident of that sort. In her first affidavit she admitted attending at the husband’s home that day and to pushing over some pot plants but otherwise denied the details to which she had then sworn. In that first affidavit she took exception to a statement made by Mr. R (annexed to an earlier affidavit of the husband) and said it should be in the form of an affidavit. Such an affidavit was before me, as was Mr. R.
Mr. R candidly agreed that by the end of the incident both the husband and wife were yelling. I accept his evidence of his observations.
I accept the husband’s evidence of the violence directed at him in the year and a half after separation which, on three occasions, involved smashing windows with either heavy objects or other means. I also accept his evidence of the abusive phone calls. Having listened to two of the messages, I declined to hear any of the earlier ones. In the message left in early 2004 the wife sounded as if she were either drunk or drugged; she spoke slowly in a steady mocking drawl and the tone was distinctly threatening. Her oral evidence was that she had drunk too much on that occasion, but did not usually drink much.
I am satisfied the husband had genuine concerns about the physical discipline that was being administered to the child by the wife. He commenced the proceedings after the child said he had been “slapped again”. The father’s evidence was that the child said that his mother had become angry with him the previous Sunday, had pulled him really hard, ripped his shirt, held him with sufficient force to hurt his neck and punched him on his back with her fists. He said the child asked him “is she mad, I’m serious, should she be on some drugs?” and then commented “my mum doesn’t get along with anybody, not even me”.
The husband also deposed that the child spoke of “slappings”. Initially he thought the child meant he was slapped on the face but later learnt that these were slaps on the back, which meant that the bruises would not routinely be seen.
In her affidavit sworn on 4 June, 2007 the wife quotes a paragraph from an affidavit sworn by the husband on 22 November, 2005. She said that in that paragraph, the husband stated :
On Saturday 22nd October, 2005 I called [the child] at 9:30 am. and he told the wife that he wanted to go skating. The wife refused as it was not a contact weekend, although she had nothing else planned and [the child] wanted to go. [The child] told me that he would get “slapped” by the wife, if he asked to go skating. I have since learnt that slapping is a physical assault with a clenched fist to [the child’s] back.
In the following paragraph (paragraph 21), the wife deposed :
The applicant has alleged that I have physically assaulted [the child]. I say that I cannot recall physically abusing [the child]. I recall smacking [the child] several years ago for disciplinary reasons but I ordinarily true (sic) and use the removal of a privilege as a means to discipline [the child] if he is naughty. I admit that on occasions I get angry and yell at [the child]. However much of this is I believe due to the stresses being caused by these proceedings. If there was some degree of closure, a more settled arrangement in respect of when [the child] was to spend time with his father, and a cessation of the father’s attempts to alter times that he is to spend with [the child], it would be my hope that my own environment will become less stressful.
Despite this evidence, the wife’s oral evidence was that she had never smacked the child. She said she did not know why she would have sworn to recalling smacking him several years ago. Taking all the evidence into account, including the child’s discussions with Ms. W and Mr. S, I am satisfied that the wife was not telling the truth in her oral evidence when she insisted she had never smacked the child.
In her report Ms. W recorded that the child told her that if he is naughty his mother yells at him and “a long time ago she slapped him on the back”. He said he felt angry when his mother yells at him and that he was not usually naughty as his father’s home. Ms. W noted the husband’s allegation that the child was physically disciplined by his mother to the point of visible red marks and the wife’s denial of beating the child. Save for the report of the child’s advice about what happens when he is naughty, nothing else in the report goes to the issue. I refer to it only as a record of what the child said at that time.
When the parties saw Mr. S the husband repeated his complaint that the wife was overly punitive in her discipline of the child and the wife’s denial of violence or excessive punishment. Mr. S reported that the child stated diplomatically that he liked both his parents equally and that both took care of him. He did admit to one incident in the past when he was hit by his mother but made a point of stating that things were now much better.
It is probable that there was at least one occasion when the wife disciplined the child by hitting him hard on the back and that he told his father he had been hit in October 2005. An occasion has obviously stuck in his mind, as he spoke of it to both Ms. W and to Mr. S. The evidence does not support a finding that the mother routinely disciplines the child in an inappropriate way. Mr. S described the child as being most circumspect and diplomatic when he was discussing his parents in comparative terms and said the child was concerned about hurting his mother’s feelings.
The wife’s evidence was of the husband harassing her with phone calls and, through them, intimidating her into letting him spend more time with the child. In the witness box she spoke of him coming to her home and causing trouble, but there is no evidence of that in either her first affidavit or trial affidavit. She did refer to these aspects when she saw Mr. S. I do not doubt that the husband has sought to take the child to sporting and other events during periods he lives with his mother. In her first affidavit the wife deposed that the child had expressed frustration at not being able to attend sporting and other functions and that she rebuked the child on occasions for asking to go with his father. The wife saw the husband’s behaviour as obsessive (paragraph (5)(ccc) of her first affidavit) and designed to undermine and limit her relationship with the child. It is more probable the child has a genuine desire to continue with sporting interests at which he excels, in circumstances where his mother cannot or will not arrange his attendance, and that he has been keen to spend extra time with his father who, he knows, supports these interests. It is probable both parents have insisted on their perceived rights at times and that their inability to communicate, their hostility to each other, and the mother’s emotional lability, militate against quietly constructive conversations about their son.
There is no doubt that it is in the child’s best interests to have a meaningful relationship with both his parents. The evidence supports a finding that the child has considerable potential but experiences stresses resulting from having to manage close, nurturing and loyal relationships with two parents who have little respect for each other.
ADDITIONAL CONSIDERATIONS
(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;
The child told Mr. S that he had less opportunity to do sporting and other activities which he likes when he is with his mother. He said he would like to increase his time under his father’s care so he could pursue sports and competitions more regularly. He said that his skill level was not increasing as fast as he needed, due to missed opportunities to train and compete, because when he is with his mother, he forgets to keep track of the competitions or “by the time mum says yes it’s often too late”. Mr. S continued :
[The child] stated that he thought his parents often fought over arrangements for his sporting activities and that his mother feels that his father is trying to control the time. He also stated that his mother gets angry at his father because “she thinks Dad puts stuff in my head to make me go against her”. He was adamant that his father did not do this. [The child] also talked about the many interests he and his father shared and enjoyed doing together, including playing and composing music in their sound studio as well as just passing the time watching a DVD. When describing these activities with his father [the child] talked freely and enthusiastically which contrasted to his more calculated and measured responses when talking about his relationship with his mother.
The wife’s evidence was that the child was intimidated by his father into telling Mr. S that he wanted to spend more time with him. She alleged that Mr. S did not speak with the child alone, a proposition denied by Mr. S. I accept his evidence that he spent about half an hour alone with the child and that he gave broadly equal time to observing the father with the child and the mother with the child. Mr. S’s evidence was that the child’s behaviour, and his observations of the child, were not congruent with an intimidated child. The child was not difficult to interview and presented as not overly anxious. He was most circumspect and diplomatic when discussing his parents in any comparative way, was appropriately orientated to the purpose of the interview, and was anxious that his mother might misinterpret his desire to spend time with his father as being disloyal to her.
I am satisfied the views expressed by the child to Mr. S were genuine.
That the child can be a sensitive, insightful and loyal child is borne out by Mr. S’s discussion with Ms. M, the child’s counsellor. She told Mr. S that the child was concerned about the potentially unsettling effect on his mother of the family assessment process; he feared she might withdraw from him, and did not want that to happen.
The evidence supports a finding that the child wants to spend more, rather than less, time with his father, and also wants to spend time with his mother. Despite some problematic behaviour at school, the child is an intelligent child and some real weight should be given to his 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);
Mr. S observed the child with both his parents. In both cases there was a familiar and comfortable style of interaction although the child conversed less frequently and was generally less interactive with his mother than he was with his father.
Mr. S also spoke with the principal of the child’s current school, the assistant principal at B Primary School and with Ms. M.
Mr. S’s analysis of the child’s relationships with his parents was insightful and I place weight on it. He said :
Despite giving an even-handed account of his relationship with both his mother and father, [the child] stated his preference to increase the time he spent under his father’s care. He justified this in terms of believing this would facilitate his greater access to his sporting pursuits and other interests. [The child] did not state directly that he felt closer to his father or more secure in his relationship with his father. It is however noted that [the child] presented with a greater animation and enthusiasm apparent when describing his time with his father in comparison to his more measured approach to describing activities with his mother. He also described a broader range of activities and interests in his account of time with his father when compared to the activities with his mother. [The child] was also observed to be more able to relate to his father in the context of a collaborative activity and was less interactive with his mother who encouraged [the child] to acknowledge her achievements in their parallel activity of building towers out of blocks. These observations together with [the child’s] expressed preference and information given by independent third parties discussed above indicates [the child] may have a stronger relationship with his father, marked by a broader sharing of interests, collaboration and a child focused orientation. It is also important however to acknowledge that [the child] presented as valuing his relationship with his mother, and reported the quality of the relationship with her in a manner that suggested he genuinely appreciated her care and in return wanted to be loyal to her and most of all wanted his relationship with her to continue in a substantive manner.
The wife told Mr. S that the husband’s relationship with the child was superficial and lacked the emotional bond that existed between the child and her. While I am satisfied the child has a good relationship with his mother, I do not accept her analysis of his relationship with his father, finding that relationship, and their emotional connection, to be strong and as Mr. S opined, possibly stronger than that with his mother.
The child spends time with his paternal grandfather and his wife (the child’s paternal step-grandmother); the husband’s evidence was of them visiting and staying in his home and of he and the child visiting and staying in their home. It is probable that he has a warm and appropriate relationship with them and with his aunt and uncle and their son (the child’s cousin), who is five. That family live in a nearby suburb and the child’s cousin attends P School.
Mr. J’s evidence was of seeing his mother about once a month and of seeing the child then. It is likely they have a friendly relationship but not a very close one at this time, as Mr. J’s commitments make it difficult for him to visit more often.
(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
(f)the capacity of :
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude. I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :
(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.
As Mr. S noted, the parties’ history is marked by long-standing conflict, an inability to communicate effectively and significant control battles. His assessment was that both are likely to fail at attempts to make arrangements with each other by mutual agreement; in his opinion it is unrealistic to expect that collaborative parenting will occur between them. He saw it as more realistic to recommend a parallel parenting role, in which roles and responsibilities of each parent are defined. Both parents have struggled to facilitate the child’s relationship with the other. Whether due to the personality dysfunction of which Dr. K wrote or for other reasons, the wife remains apparently incapable of accepting the child’s genuine attachment and strong relationship with his father. So entrenched is she in that position that she cannot acknowledge the child’s genuine enthusiasm for activities which he undertakes with his father; from her perspective, the father’s motive for involving him in these activities is a purely selfish one, and designed to remove the child from her.
The wife’s maintenance of an application to significantly reduce the time the child spends with his father, in the face of expert evidence of the child’s wish for more, rather than less, contact, is indicative of an incapacity to prioritise the child’s needs above her own. She conveyed a sense of needing the child to fill her emotional requirements.
The problems the parties have in acting co-operatively were demonstrated by the evidence each gave about events around New Year 2006/2007. I am satisfied the husband offered the wife some extra time with the child. When he delivered the child, an argument ensued as to the extent of that time. I do not accept the wife’s evidence of the husband dragging or pushing or pulling the child and I accept his evidence of the nature of the original arrangement. That said, what should have been an opportunity for the child to move calmly between his parents resulted in him being exposed to more parental acrimony and hostility and being left in no doubt of his parents’ continuing animosity to each other.
Mr. S drew some conclusions as to the parties’ understanding of the child’s situation in the context of evidence about the child’s development and behaviour. He wrote :
[The child] presented on interview as an articulate boy for his age, of at least average intelligence, with age appropriate social skills. Ms. [M] summarized [the child] as a socially capable, intelligent and relatively well adjusted boy who expressed sadness and some anxiety around the difficulty in maintaining nurturing relationships and loyalty to both parents and therefore feeling that he had to live somewhat separate lives with each parent, being very aware that both his parents engaged acrimoniously with each other. [The child’s] current school principal, Mr […], described [the child] as a socially capable boy of at least average intelligence. He did however express concern about [the child’s] tendency to engage in manipulative and anti-social behaviour at times when [the child] thinks he can get away with such behaviour (predominantly when unsupervised by school staff). These multiple observations of [the child] across a variety of settings enables the construction of an overall picture of [the child] as a boy who has considerable potential yet experiences some stress possibly linked to him having to manage maintaining close, nurturing and loyal relationships with both his parents in the context of both his parents having little respect for each other. It is likely that [the child] acts out his experience of parental acrimony and mutual parental disrespect by exhibiting similar traits within his own social context, thus presenting with moderate anti-social behaviour when left to his own devices. [The child’s] predicament was acknowledged by his father who directly stated that his son needed counselling due to [the child’s] freedom and ability to communicate openly to both parents being compromised by the parental acrimony. [The wife’s] understanding of [the child’s] situation impressed as less astute, seeing any problems [the child] had as a result of behaviour learnt from his emotionally disturbed father. Yet despite this belief, she also contended that [the child] did not need counselling and that [the husband] initiating this for [the child] was unnecessary. [The wife] therefore presented with a less consistent and less sophisticated understanding of [the child’s] developmental needs than [the husband] who displayed an intuitive and logical understanding of his son’s predicament and the emotional supports needed to help him cope and assist his development.
Asked about the wife’s view that the child himself is not overly interested in the activities his father wishes him to follow, Mr. S gave no credence to it. He said it is her view that the father only encouraged these attitudes to manipulate the child’s time with her but that is not correct; the child has a genuine interest in his sport and wants to pursue it. To Mr. S the child presented as enthusiastic and spontaneous when speaking of the sport and genuinely interested himself, not to please his father. When he was first asked whether the child talked to him about sport, Mr. S said that the child seemed to be “quite passionate about it” and wanted to continue with it to the best of his ability.
I have no doubt that the child’s capacity to continue with the sport would be adversely affected were he to spend less time with his father than he does now and were he to rely on his mother to get him to competitions during periods he is with her. I accept as sound Mr. S’s evidence of the need for balance and the child’s need to have both structured and unstructured time with his mother. I do place weight on his evidence that sport provides an opportunity for success for the child, one in which he can demonstrate mastery and enjoyment in a chosen sport, and that to miss out on it, because of his mother’s incapacity to accept his genuine commitment to it, would be a lost opportunity for him.
Mr. S’s evidence was that the mother cannot accept any motivation that is not aimed at depriving her. He spoke of an element of blinkered thinking and a lack of sophisticated understanding of the child’s developmental needs. She has no appreciation of the child’s experience of being caught between two parents with no respect for each other.
This evidence needs to be considered in the context of Dr. K’s opinion which was that if the alleged observations of her behaviour were accurate, he would have serious concerns about her parenting abilities. I am satisfied that the observations (by this he referred to a number of allegations made by the husband) are accurate. It is likely, as Dr. K foreshadowed, that the wife is not sensitive to the point of view of others, including that of a child.
It is important to bear in mind the child’s stage of development. Mr. S’s evidence was that the child presented as a boy who is moving from childhood towards early adolescence. He strongly identifies with his father as an adult male and is using that relationship to help him construct his identity. In turn, that needs to be used in a positive way to construct the child’s own sense of his self esteem. A week about arrangement would promote that and enable him and his mother to continue in their relationship in positive ways.
Both parties gave evidence of a conversation in March 2007 after both were at a party which the child attended. What started promisingly (an invitation to discuss matters which was accepted) degenerated into a form of unseemly auction, with time with the child as the prize.
The mother’s account in her affidavit was of the father offering to pay her $2,000 if she would agree to a shared parenting arrangement and then raising the offer to $5,000 after she rejected the $2,000. Her evidence was of telling him she would agree to shared parenting if he gave her a house, but that she said that in jest, as she knew he would not do so.
Cross-examined the mother repeated her evidence of the offers of $2,000 and $5,000 and said she said that if he gave her a house, she would “think about it”. She said he refused to do that. She added that she believed he should buy her a house and “of course, I would look more favourably on joint care if he bought me a house”. Her position seemed to be that she would still consider such an arrangement if he bought her a house, while agreeing that such a purchase would not alter any of her alleged concerns about the husband or be responsive to what she saw as the potential harms were the child to live with his father half the time.
The husband’s evidence was of a discussion which commenced with the wife asking him to give her a house; he said that she said he could have the child as much as he wanted, if that occurred. She then said she would take $75,000. According to him, at that point he said he could only afford $2,000, which he subsequently raised to $5,000.
Having regard to her general unreliability as a witness, her maintenance of the view that she is entitled to a house, and her concession she would now look fore favourably on shared parenting if she got a house, it is probable the father’s account is closer to the truth than that of the mother. That said, the episode reflects very poorly on them both. Any such auction is indicative of a lack of insight into the centrality of the child’s best interests.
There have been problems with the child’s school attendance when going to school from his mother’s home; the evidence supports a finding that in the past he has often been late and had unexplained absences. As early as year 1 his school report carried a note that “school attendance is vital for maximum learning to occur”, and the wife was really unable to provide any rational explanation for the problem.
A good deal of evidence went to the circumstances in which the child moved from B Primary School to a school in N. In essence, I am satisfied that the wife had a falling out with another mother, vented her spleen on that woman’s child and when called to account by the school, removed the child, without advice to his father. Documents subpoenaed and tendered from B Primary School record notes of complaints made by the other child, AN, that the wife had called him names, sworn at him, pushed him over and called his mother a slut on 20 July, 2004. A note the following day records the former friend and AN’s mother reporting that the wife had again yelled at AN and chased him through the playground when he ran to her car, which she immediately reported to the principal. There were no witnesses to the alleged abuse on 20 July and the wife and her then partner (possibly the man over whom she and the friend, JN, had fallen out) denied she had been at the school on 21 July. The school tried to deal with the problem by setting in place protocols for departure from different gates, etc.
In early February 2005 there was another incident. The notes record that a teacher saw the wife chase AN into the corridor from outside and that AN ran into the office, “crying hysterically”. The notes record that the wife again denied this behaviour, notwithstanding it being witnessed.
The wife’s explanation on that occasion was that AN had been crying and that she was trying to find out what was wrong; that was why she chased him when he ran away from her. Her first words to the teacher are recorded as being “I did not hit him” to which the teacher responded “he did not say you hit him”. The upshot was that the wife told the school she would be taking the child out of the school, which she did. His last attendance was on the day of that discussion (11 February, 2005) and he did not start at N Primary School until 26 March.
Faced with the allegation about her conduct at the child’s former school, the wife kept saying that she could call the other woman, JN. On 23 August she produced a note from JN, which was tendered as exhibit W-1. According to the wife, JN wrote it the previous evening, after the court hearing. The note is in these terms :
[The husband] came to my door trying to tell me to come to court against my friend [the wife] which we have been friends for 6 years and our sons are good friends, and the kids have sleep overs and do outings together. The incerdent (sic) at the school is between myself and [the wife] and it has been sorted out as it was to do with a man.
First, the note could not be said to represent a denial of the wife’s behaviour towards JN’s son. Second, and more importantly, I could not be confident that the note was in fact written by JN. The handwriting in the note itself is very different to the hand-written name (above a signature) at the foot of the document. The signature may be that of JN; I can say nothing more than that.
The evidence the wife gave of the reason she moved the child from his school was inconsistent and, ultimately, risible. I have no doubt that the decision was made for her convenience, to avoid a situation of her making.
I do not place weight on the husband’s evidence of the wife leaving a meeting at which progress in maths was discussed. She tendered a certificate confirming the child’s participation in the Premier’s Reading Challenge this year and the child can benefit from both his parents’ skills and interest.
I am more concerned about the evidence of the wife’s response when contacted by the school in relation to allegations that the child had been bullying other children. Her evidence was that she did not feel it was important; he was “not usually like that” and “it happens with children”. She last attended a parent/teacher interview in 2006.
The child has one more year of primary school. The husband sought that he attend P School and was prepared to pay the fees and expenses. The wife’s evidence was that he had been prepared to pay the fees for her son, Mr J, to attend that school and at that time (presumably when Mr J was a teenager) she and Mr J had visited it. She seemed to have no objection to it other than to say that she preferred a school midway between the parties’ two homes. According to her, P School was only five or ten minutes drive from the husband’s home at H, an assessment not borne out by a rudimentary sense of the relevant geography. The wife had not herself made any enquiries about potential secondary schools; her evidence was that there are good schools in the area, that she proposed to have a look and that there was a high school close to her home which was called “High School”.
(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;
I am satisfied that the child would be very unhappy were his time with his father to be reduced, as sought by the wife. Mr. S’s evidence was that the child would feel that his wishes had not been carefully considered; he would feel he was not going to have enough time with his father to pursue their mutual interests and enjoy the potentialities of their relationship. Mr. S said that it could impact on the child’s emotional well-being in a negative way. As he goes into adolescence, he would feel he was not having his needs met. There would be a potential likelihood of defiance and oppositionality, particularly having regard to some of the child’s behaviour at school to date. Mr. S was also concerned at how the mother would deal with the potential problems such an outcome might produce.
On the other hand, I am satisfied an arrangement which allows the child to spend more time with his father, while maintaining significant time with his mother, would be welcomed by him and would promote his well-being. Mr. S’s evidence was that he did not think the child would have difficulties in adjusting to that. He spoke of the benefits of minimising the number of changeovers and of changeovers being at school, or in a neutral environment.
Mr. S was asked about the potential affect on the wife were orders to be made for shared residence. His evidence was that this was hard to predict. His best prediction was that she would experience some loss but that how she copes would depend on how responsibly she manages her own adjustment. For example, a logical course of action would be for her to seek some professional counselling. Mr. S did note the possibility of “fall out for [the child]”, in that she may act out her disappointment on him.
I accept the husband’s evidence that his work commitments are flexible enough to accommodate the child living with him in each alternate week and that his sister and a friend who lives nearby are also available to pick the child up from school. There is a bus between H and P School, which takes about 50 to 55 minutes in the morning and about 45 minutes coming back.
(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;
The parents live in reasonable proximity. N and H are some 20 kilometres apart; some further adjustment would need to be made to take account of the distance each of them is from the centre of the town. P, where P School is situated, is about 10 kilometres from N and about 20 kilometres from H.[1] Traffic between N and P may be heavier than that between H and P and that may impact on travelling time.
(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;
i)[1] See Whereis.com (Australian maps and directions)
The wife’s evidence was of speaking with the child in both French and English. A bilingual environment can only accrue to his benefit. As long as he spends significant time with each of his parents he will have an opportunity to be exposed to aspects of each of their cultures. He has already travelled to the United Kingdom with his father to meet relatives there.
(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;
I have earlier referred to the applications for intervention orders filed by the husband. The wife told Mr. S that the husband had been physically violent to her when they were together, which was denied. I could not find it more probable than not. What is important is that the child is shielded from conflict between his parents. The evidence supports a finding that the mother has difficulty in containing herself; this was very evident in the courtroom, as well as accounts of the altercations at B Primary School and with neighbours. Changeovers in a neutral environment will not eliminate that tendency, if both parents are present. If changeovers are to occur at school, I am satisfied orders should provide for the other parent not to be in attendance at the time of the changeover.
(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;
The child is well aware of the potential effect of the litigation on his mother. His interests require a decision and the implementation of a clearly defined regime.
(m)any other fact or circumstances that the court thinks is relevant;
It is important that the Court considers the objects and principles set out in s.60B and I take them into account.
PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
The husband and the ICL each submitted that the parties should have equal shared parental responsibility, save for aspects relevant to the child’s attendance at P School, if the court made orders to that effect. The wife’s application was for sole parental responsibility. I have no hesitation in finding that the presumption of equal shared parental responsibility should apply, that being in the child’s best interests. In those circumstances the court must then consider whether spending equal time with each parent would be in the child’s best interests. Again, I have no hesitation in finding that such an arrangement would be in the child’s best interests. Counsel for the ICL succinctly raised relevant matters and I place weight on Mr. S’s evidence, as well as on the other findings made by me.
A shared residence arrangement is sometimes said to be inappropriate where there is poor parental communication and co-operation, which are unlikely to improve over time. Section 65DAA(1)(b) of the Act provides that if the court determines that spending equal time with each of a child’s parents would be in the best interests of the child, it must then consider whether spending equal time with each of the parents is reasonably practicable. Section 65DAA(5) provides that in determining whether it is reasonably practicable to do so, the court must have regard to a number of factors as follows :
(a) how far apart the parents live from each other;
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time . . .with each of the parents;
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Geographic proximity is not a problem in this case. It is probable that an order for the child to spend longer blocks of time with his parents would be easier to implement than the current arrangement, which involves a lot of chopping and changing. As found, the parties do not have a good capacity to communicate and resolve difficulties. A note to s.65DAA(5) notes that the court has power under s.13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services. The ICL proposed that an order provide for the parties to discuss major decisions in writing initially, and to use primary dispute resolution if they were at an impasse. That would be relevant to significant issues relating to the child’s education, health and religion, or if a party wanted to move his or her home and such a move might impact on the implementation of orders made by the court. A process like that could also be used for less significant matters but is not really practicable to work out day to day aspects of the child’s care.
On the other hand, I am concerned that aspects of the wife’s parenting have the capacity to impact adversely on the child, who wants to spend more time with his father. The parents are going to have to communicate with each other, regardless of the time the child spends in each home. The child is well aware of the difficulties his parents experience in dealing with each other. Fewer changes and a more stable and predictable routine may limit his exposure to their acrimony, as should specific orders relating to his participation in sporting events. He is getting older and has been able to utilise the counselling with Ms. M to his advantage.
I am mindful of the recent research of Jennifer E. McIntosh and Caroline Long, published by Family transitions as The Child Responsive Program, operating within the Less Adversarial Trial, July 2007.[2] That report deals with data from 77 parents from 54 cases determined in this court (by consent or judicial decision) who responded to a follow up survey four months after determination. At p.18 the authors noted that the data offers an important caution within the current climate of obligation to consider whether spending equal time with each of the parents (or substantial and significant time) would be in the best interests of the child. The data suggests that a significant proportion of children emerged from court under conditions that meant substantially shared care between their parents posed a psychological strain on them.
ii)[2] The report is available on type="1">
The study identified key predictive factors that need to be looked for and given weight in recommendations (and court orders) around substantially shared care. The authors noted (at p.18-19) :
In essence, emotional difficulties emerge most strongly for the young child (aged under ten) living in shared care when :
·The care climate is marked by apprehension about the child’s safety,
·At least one parent reports a poor relationship with the child,
·An alliance between the parents is absent,
·Considerable levels of inter-parental conflict remain present, and
·The child is unhappy with the substantial division of their time and life.
With these variables all operating simultaneously, the levels of anxiety and worry evidence in these children are of little surprise.
It is equally important to note that substantially shared care was not (emphasis in original) associated with poor outcomes for children when parents were cooperative, conflict well managed and parent-child relationships were reported to be strong or considerably improved post Court. The issue is not that shared care is harmful per se, but that the regular movement of children through a cross-fire of acrimony between parents who do not cooperate, brings accumulating and damaging levels of stress to children who are imperfectly, if at all, shielded from that discord.
Only those more interested in an ideologically driven outcome than a child-focused one would be surprised by these conclusions.
In this case the child seeks more time with his father and is likely to be happy with a shared living arrangement. Both parents report a good relationship with him, reports borne out by expert evidence. There are now no legitimate concerns about his safety in either home.
I do take account of the fact that the husband now seeks a shared residence arrangement, rather than an arrangement that the child live with him and spend a lesser period of time with his mother. That is indicative of a co-operative approach. I have found it would not be in the child’s best interests to spend less time with his father than he does now and, for the reasons described by Mr. S, it is important to the child that he also has structured and unstructured periods of time with his mother. In these circumstances, and notwithstanding the parties’ problems with communication, I am satisfied an order for shared residence is reasonably practicable and should be made. I add that a number of factors relevant to s.65DAA(5) have already been taken into account when considering the provisions of s.60CC(3).
Each case must be decided on its own merits. In this case, notwithstanding the poor parental communication and co-operation, a structured week and week about arrangement is likely to be more protective of the child than a continuation of the current arrangement (which involves numerous changeovers) or a diminution in the child’s time with his father. The child is well aware of his parents’ differences of opinion and conflict; he has been exposed to these aspects for much of his life. A more structured arrangement in which he is able to spend time with both parents in weekly blocks, save for attendances at competitions which might fall in his time with his mother, will provide stability, consistency and predictability for him.
I am satisfied that it will be in the child’s interests to attend P School, provided that the husband is responsible for all school fees and related costs, including uniforms, books and excursions. I accept that his sister and her husband are prepared to contribute financially, as well as practically. The child is an intelligent boy who has demonstrated some behavioural problems. While a shared care arrangement may ameliorate some of those, it is unlikely to be a universal panacea. A fixed and secure school arrangement will ensure consistency and predictability in that area, which is likely to benefit the child.
Mr. S considered a potential structure to enable the child to continue his involvement in sporting competitions. He recommended that the husband provide the wife (via a communication book) with four weeks notice of all competitions that fall within a period in which the child lives with his mother and that she use that four week timeframe to make the necessary arrangements for the child to attend. When he lived with his mother any non-competition times that the child wanted to spend in training should be left for negotiations between the child and the wife. Similarly, when in his father’s care, attendance at those activities should be negotiated between the husband and the child.
Having now heard from the wife, I am not confident that the implementation of that recommendation would mean the child would be involved in the competitions when in his mother’s care. Some involve driving quite long distances and all require a degree of organisation. The child told Mr. S that he forgets to keep track of competitions and that by the time his mother said yes, it was often too late. Even with four weeks notice I would not be confident that the child would get to competitions which occurred during his periods with his mother.
In these circumstances there is sense in the proposal of the ICL, made after hearing all of the evidence, that the husband should provide the wife with a list of dates of the competitive events and that he be at liberty to collect and return the child, taking him to such events. The wife should be able to attend them, too, if she wishes.
I have considered whether the husband’s proposal to swap weekends would be a viable solution. On balance, there is more merit in the certainty and predictability of a weekly changeover date than in an arrangement which would require the parties to negotiate and make arrangements for time in lieu.
I am satisfied the week and week about arrangement should run through school term holidays and that orders should provide for the parties to share the long summer vacation. The child should continue to attend counselling with Ms. M at the husband’s expense. Orders will provide for the sharing of information about school events and significant illness or injury.
I certify that the preceding
134 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown.Dated the day of 2007.
…………………………………………
Associate.
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