Sheffield and Almond
[2020] FamCA 89
•20 February 2020
FAMILY COURT OF AUSTRALIA
| SHEFFIELD & ALMOND | [2020] FamCA 89 |
| FAMILY LAW – CHILDREN – Where on an interim basis and by agreement the mother spent no time with child for three months due to risk of harm to child from mother’s behaviour and attitude to father – Where time with child gradually re-introduced and parties to attend therapeutic intervention – Where there are contrasting parenting styles – Where the parties are to continue to attend family therapy – Sole parental responsibility to the father – Balancing the risk of harm to child from mother’s behaviours recurring and the child’s desperation to spend more time with her mother – Orders made for significant and substantial time between the child and the mother as being orders in the child’s best interests. |
| Family Law Act 1975 (Cth), ss 60CC(2), 60CC(3) |
| Goode & Goode [2006] FamCA 1346 |
| APPLICANT: | Mr Sheffield |
| RESPONDENT: | Ms Almond |
| INDEPENDENT CHILDREN’S LAWYER: | WMD Law |
| FILE NUMBER: | SYC | 855 | of | 2016 |
| DATE DELIVERED: | 20 February 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 9, 10, 11, 12 and 13 December 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fowler |
| SOLICITOR FOR THE APPLICANT: | Garrison Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Batey |
| SOLICITOR FOR THE RESPONDENT: | Hikma Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Blackah |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | WMD Law |
Orders
The father have sole parental responsibility for the child X born … 2013.
The child live with the father.
The father shall, before making any major decisions in relation to the child’s long term care, welfare and development, including but not limited to education, medical care, cultural and religious upbringing:
(a)Use his best endeavours to advise the mother in writing of the decision intended to be made; and
(b)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
The child spend time with the mother as follows:
(a)Commencing from the date of these Orders, from after school Thursday to before school on Monday and each alternate week thereafter;
(b)Commencing from the first week of the third school term in 2020, from after school Thursday to before school Tuesday and each alternate week thereafter; and
(c)Commencing from the first week of the second school term in 2021, from after school Thursday to before school Wednesday and each alternate week thereafter.
(d) Via FaceTime for no more than 30 minutes at a time:
(i)On the Tuesday the child is in the father’s care; and
(ii)On the Sunday the child is in the father’s care.
(e)For the purposes of Order 4 (d), the mother shall initiate the call at a time agreed between the parties, and failing agreement at 6:30 pm. In the event the child misses the mother’s call, the father shall do all things necessary to ensure the child returns the call on the same day.
(f)For the first half of all of the end of Term school holiday periods in even-numbered years commencing from after school on the last day of school and concluding at 5 pm on the midpoint of the school holidays. In the event the school holiday period has an even number of days the midpoint shall be the earlier of the two middle days of the school holiday period.
(g)For the second half of all of the Term school holiday periods in odd-numbered years commencing from 5 pm on the midpoint of the school holidays and concluding at the commencement of the first day of school. In the event the school holiday period has an even number of days the midpoint shall be the earlier of the two middle days of the school holiday period.
(h)For half of the Christmas School holiday period at times to be agreed between the parties and failing agreement:
(i)From after school on the last day of Term 4 until 5pm on the second Sunday in January in even-numbered years; and
(ii)From 5pm on the second Sunday in January until the commencement of the first day of school in Term 1 in odd-numbered years.
(i)On the child’s birthday from after school to 7 pm if the birthday falls on a weekday and from 9 am to 1 pm if the birthday falls on a weekend.
(j)On the mother’s birthday from after school to 7 pm if the birthday falls on a weekday and from 9 am to 7 pm if the birthday falls on a weekend.
(k)On the Mother’s Day weekend from after school on the Friday immediately before Mother’s Day until before school on the Monday immediately following Mother’s Day.
(l)On the first day of both Eids in even-numbered years.
(m)On the second day of both Eids in odd-numbered years.
(n)At any other times as agreed between the parties.
For the purposes of Order 4:
(a)If the mother’s time takes place on a school day, the mother shall collect and/or return the child from her school at the commencement and/or conclusion of the school day on each occasion; and
(b)If the mother’s time takes place when it is not a school day, the father shall deliver the child to the mother’s place of residence at the commencement of each period and the mother shall return the child to the father’s place of residence at the conclusion of each period.
The mother’s time with the child is suspended as follows:
(a)On the Father’s Day weekend from school on the Friday immediately before the Mother’s Day until before school on the Monday immediately following Father’s Day;
(b)If the child is in the mother’s care and the child’s birthday falls on a weekend, from 9 am to 1 pm on the Saturday or Sunday;
(c)On the second day of Eid in even years; and
(d)On the first day of both Eid in odd years.
The parties may by agreement vary the commencement of time the child is to live with each parent during the term and in holidays.
Within seven (7) days from the date of these Orders, the parties shall:
(a)Contact B Group or such other suitable service provider to make an appointment for ongoing family therapy for the mother, the father, Ms D and for the child at the discretion of the therapist;
(b)Attend all appointments at any reasonable location and time as nominated by B Group or such other suitable service provider and complete all necessary assessments;
(c)Pay their own costs associated with their appointments with B Group or such other suitable service provider;
(d)Share equally the costs associated with all appointments B Group or such other suitable service provider may have with the child;
(e)Attend and undertake any appropriate program as B Group or such other suitable service provider directs as soon as is reasonably practicable and if separate counselling is recommended for either of the party’s and the child, ensure that the child attend their separate counselling appointments; and
(f)Ensure that the child attends and participates in all sessions with B Group as or such other suitable service provider as directed.
Communication of long term issues between the parties is to occur initially via email.
Communication in relation to emergency matters shall occur via SMS or by the parties telephoning each other.
The parties shall allow the child to communicate with the other parent if she wishes via text messages including sending images on an iPad or by telephone.
The parties to take the child to same treating medical practitioner and/or medical practice as specified by the father unless in an emergency. Both parties have liberty to speak to the child’s treating medical practitioners on any occasion.
The child’s name shall forthwith be removed from the Airport Watch List.
The mother and father shall both do all acts and things and sign all documents necessary to ensure that the child has a valid Australian passport. To facilitate this the father shall provide to the mother a completed passport application form and the mother shall sign and complete all information that is appropriate and return the form to the father within two (2) days of receipt of the same. In the event the mother refuses to complete and return the passport application form within two (2) days of receiving it, then the father is permitted to apply for a passport for the child without the mother's consent.
The parties are permitted to remove the child from the Commonwealth of Australia provided that:
(a)Such travel takes place during the school holiday period and at times the child is with that parent pursuant to these Orders, unless as otherwise agreed between the parties;
(b)The travelling parent provide the other parent with 28 days’ notice of their intention to travel with the child;
(c)The travelling parent provide the other parent with a full itinerary of their proposed travel including details of return flights/tickets, transfer, accommodation and contact details for the child not less than 21 days prior to departure;
(d)Within three (3) days of receiving the information as provided for in Order 13 (c), the non-travelling parent shall provide the travelling parent with written notice of their consent for the child to travel. Such consent cannot be unreasonably withheld; and
(e)The father shall hold the child's passport and make it available to the mother upon her compliance with Order 13 and the mother shall return the child's passport to the father within 48 hours of the child returning to the Commonwealth of Australia.
The parties shall keep each other informed of their residential addresses and home and mobile contact phone numbers and provide the other party with at two (2) weeks’ notice in advance of any proposed change of those contact details.
Both parties are ordered to take the child to one medical practice for usual childhood illnesses.
The father will notify the mother within seven (7) days of the medical practice both parties are to take the child for usual childhood illness other than in the case of an emergency.
Both parties shall notify each other in the event of any illness or injury occurring to the child whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority and direction necessary to enable to other party to obtain all necessary information concerning the child.
Each party shall notify the other via email of any medical treatment and or prescription medication administered to either the child whilst in their care, including the names, addresses and telephone number of the treating medical or like practitioner and that each party shall provide to the other any prescription medications and that both parents are authorised to liaise with those practitioners to obtain any necessary information about the child’s treatment to which parents are entitled, and these Orders shall act as authority for same.
The mother is permitted to liaise directly with the child's school and sporting bodies to obtain any necessary information about the child’s progress and the father shall within seven (7) days from the date Orders do all acts and things and sign all documents necessary to authorise the school and sporting bodies in writing to facilitate this.
Within seven (7) days from the date of Orders the father shall do all acts and things and sign all documents necessary to authorise the Principal of any school attended by the child to provide the mother with copies of the child's school reports, newsletters, notices as they fall due and inform the mother of any school activities which parents are invited to attend with the mother to pay any costs associated with this Order.
The parties are restrained from denigrating the other parent in the presence or hearing of the child and both parties are to do all acts and things necessary to remove the child from the presence of any third person who is denigrating the other parent.
The parties are restrained from physically disciplining the child.
The parties are restrained from discussing these proceedings with the child.
The parties may provide a copy of these Orders to the child’s school and medical practice or practitioner.
The Order appointing the Independent Children’s Lawyer is discharged pending any appeal in the matter or any costs application made by the Independent Children’s Lawyer in this matter.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sheffield & Almond has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 855 of 2016
| Mr Sheffield |
Applicant
And
| Ms Almond |
Respondent
REASONS FOR JUDGMENT
The matter of Sheffield & Almond is a parenting application concerning the parties’ child, X, born in 2013.
The history of the matter is complex. In summary, the matter commenced in the Federal Circuit Court of Australia and was before me when I was a Judge of that Court. At the conclusion of 2018, after 10 days of hearing, by consent, the child X came into her father’s sole care although she had been living in an equal time arrangement prior to that by Order of the Court. The child spent no time with her mother, or communicated with her mother for a period of three months.
Thereafter, the parents were to engage in therapeutic intervention, including family therapy for themselves and the child, and the mother’s time was to slowly increase with her such that by the end of 2019, she would be spending time with her mother in accordance with the Orders made 2 November 2018.
The Orders made in November 2018 provided for the mother to engage in personal therapy with a therapist from B Group and attend programs as recommended. The therapist was to be provided with the Family Reports prepared by Ms E on 9 June 2017 and 10 October 2018 together with the transcript of the evidence given by Ms E at the conclusion of the Federal Circuit Court matter on 1 November 2018.
The mother was to then commence to spend time with X not before the first weekend in February 2019 from 10 am to 4 pm on each Saturday and the parties were to effect changeover at the F Centre, and if not available, at a private organisation.
The mother was injuncted and restrained from attending her child’s school, the father’s residence, both parties from denigrating the child, disciplining the child and discussing the proceedings with the child.
As at the date of this trial on 9 December 2019, the time the child was spending with her mother was two nights a fortnight including overnight time which had commenced in July 2018.
The mother had commenced spending time with X on 10 February 2019 for six hours a week, with changeovers facilitated by G Service.
Further interim orders were made in July 2019 for X to spend time with her mother each alternate weekend from after school Friday to 4 pm Sunday and from after school Tuesday to before school Wednesday on each alternate week.
The matter was transferred to the Family Court and the proceedings have commenced afresh in this Court.
The parties all agreed that the transcript of proceedings in the Federal Circuit Court of the hearing which ran for 10 days become an exhibit in this Court and thus formed part of the evidence at this hearing. However, the trial which commenced on 9 December 2019 was a fresh trial.
Mr Fowler of Counsel acted for the applicant father, Mr Batey of Counsel for the mother and Mr Blackah of Counsel for the Independent Children’s Lawyer.
DETAILED CHRONOLOGY
The mother was born in 1985, aged 34.
The father was born in 1985, aged 34.
In 2005, the mother and father meet. Although born and raised as a Christian, the father by this time had converted to Islam. The mother was raised in and continued to practice the Islamic faith. Through the mother, the father is introduced to an Islamic community living predominantly in Sydney whose spiritual leader is the late Dr H.
On 29 June 2006, the mother and father start living together.
In 2006, the mother and father marry.
In 2013, X is born.
In 2014, the mother and father separate.
In 2015, the mother marries Mr J in an Islamic ceremony without telling the father.
In November 2015, the mother and Mr J start living together.
In January 2016, the mother relocates to B Town with X and Mr J without telling the father.
On 29 February 2016, the father commences proceedings in the Federal Circuit Court seeking a location Order, equal shared parental responsibility for X, for the mother to return the child to within 15 kilometres of the paternal grandfather’s home in Suburb K and for him to spend time with X.
In 2016, the father marries Ms D.
On 26 April 2016, the mother makes a statement to police at B Town in which she alleges the father had sexually assaulted her.
On 2 August 2016, the mother files a Response, Notice of Risk and Affidavit seeking that X live with her, that she have sole parental responsibility for X and that X spend limited weekend time with the father both in Sydney and B Town.
On 13 October 2016, Judge Henderson delivers judgment following the interim hearing and Orders are made inter alia that the mother to return the child to Sydney within 42 days and restraining the mother from permitting X to refer to Mr J as “Daddy”. The matter is also listed for final hearing on 10 and 11 August 2017 and the preparation of a Family Report is ordered.
On 21 November 2016, the mother files a Notice of Appeal in relation to the Orders made on 13 October 2016.
On 24 November 2016, the mother files an Application in a Case and Affidavit seeking a stay of the Orders made 13 October 2016.
On 22 December 2016, the father files a Response to the mother’s stay application seeking that stay application be dismissed.
On 9 January 2017, the father files a Review of a Registrar’s decision to not list the matter expeditiously. That review is determined by Judge Henderson in Chambers on 10 January 2017 and her Honour makes Orders listing the matter for mention on 10 March 2017.
On 16 January 2017, the mother alleges she is told by Ms L that X had made a disclosure about her father abusing her and she should contact the police.
From 20 January 2017 to 16 March 2017, the allegations made by the mother are investigated by police who ultimately take no action.
On 10 March 2017, the matter comes before the Court and an Independent Children’s Lawyer is appointed. Her Honour makes a notation that the mother has still not complied with Orders made on 13 October 2016 to return to Sydney.
On 16 March 2017, the father files an Application in a Case and Affidavit seeking a location Order for X, a recovery Order for X and thereafter, for X to live with him on an interim basis.
On 6 April 2017, Judge Henderson makes Orders, inter alia, listing the matter for interim hearing on 10 May 2017 and for the father to spend time with X on a number of specific occasions prior to 10 May 2017.
On 10 May 2017, the mother consents to Orders for X to live with each parent in a week about arrangement, noting she has still not returned to Sydney with X in accordance with the Court’s Orders.
In 2017, the father and Ms D’s daughter, Y, is born.
On 28 July 2017, Judge Henderson lists the matter for final hearing on 20, 21 and 22 November 2017.
Between 20 and 22 November 2017, the final hearing commences but does not conclude. The matter is adjourned part-heard to 19 and 20 December 2017, and a further five days on 29, 30, 31 October 2018, 1 and 2 November 2018. An updated Family Report is also ordered.
X starts school at M School and is in year 1.
In March 2018, the mother and Mr J separate.
From 29 October 2018 to 2 November 2018, the final hearing resumes.
Interim Consent Orders are made that provide for, inter alia, X to live with the father and for time with the mother to be suspended for three months. The mother is to attend therapy with her own therapist at B Group and for the family to participate in family therapy with a separate therapist at B Group. Thereafter, X’s time with the mother is to recommence and increase gradually.
On 7 November 2018, the mother attends a therapy session with Ms N, Clinical Psychologist at B Group.
On 23 November 2018, the mother attends a therapy session with Ms N, Clinical Psychologist at B Group.
On 25 January 2019, Ms N, Clinical Psychologist at B Group provides a letter stating that:
Ms Almond has attended sessions with me at B Group and we have discussed her role in the concerns regarding her daughter. Ms Almond has engaged honestly with me and will continue to work with me or Dr P at B Group as needed, to improve aspects of her parenting which have caused concern.
On 1 February 2019, the father and Ms D participate in a family therapy session with Dr P, Clinical Psychologist at B Group. The mother stops her sessions with Ms N at this time.
On 8 February 2019, the mother participates in a family therapy session with Dr P.
On 10 February 2019, X starts spending six hours each week with her mother on a Sunday with changeovers facilitated by G Service.
In 2019, the father and Ms D’s son, Z, is born.
On 23 March 2019, the father, Ms D and the mother participate in a family therapy session with Dr P.
On 21 April 2019, X did not spend time with her mother as the mother travelled overseas.
On 3 May 2019, the father, Ms D, the mother and X participate in a family therapy session with Dr P.
The father files an interim application in the Federal Circuit Court and on 23 May 2019, Judge Neville makes Orders transferring the matter to the Family Court of Australia in Sydney and lists the matter before Justice Henderson on 12 July 2019.
On 16 and 23 June 2019, X did not spend time with her mother as the mother travelled overseas.
On 12 July 2019, interim Orders are made by consent for X to spend time with the mother each alternate weekend from after school Friday to 4pm Sunday and from after school Tuesday to before school Wednesday in each alternate week.
On 19 July 2019, X starts spending overnight time with the mother.
On July 2019, the father reports that X hit Y forcefully and pushed Y’s head into the wall and then ran to the table to pretend to colour in.
On 22 August 2019, the father reports that X pushed a boy at school when he approached her and her friends to sit with them.
On 4 October 2019, the father and Ms D participate in a family therapy session with Dr P, at B Group. Dr P twice offered further appointments with the mother but the mother declined on each occasion saying she did not feel it necessary.
On 10 October 2019, the matter is listed for final hearing on 9 to 13 December 2019 and an updated Family Report is ordered.
In November 2019, the mother contacts Dr P and said that she had misunderstood what was being offered and booked an appointment to see Dr P in early December 2019.
On 9 November 2019, after being told she would not see her mother for two weeks because the mother was going overseas, X was so distressed that she began dry retching.
The final hearing is heard from 9 to 13 December 2019 and judgment is reserved.
DOCUMENTS RELIED UPON
The documents read are as follows:
a)For the father:
i)Affidavit of Mr Sheffield filed 11 November 2019;
ii)Financial Statement of Mr Sheffield filed 11 November 2019;
iii)Affidavit of Ms D filed 11 November 2019;
iv)Affidavit of Mr O filed 11 November 2019;
v)Affidavit of Mr Sheffield filed 30 October 2017;
vi)Affidavit of Ms D filed 30 October 2017;
vii)Affidavit of Mr Q filed 27 October 2017;
viii)Affidavit of Ms R filed 27 October 2017;
ix)Affidavit of Mr S filed 27 October 2017;
x)Affidavit of Mr T filed 27 October 2017;
xi)Affidavit of Ms C filed 26 September 2016; and
xii)A case outline document prepared by his Counsel, Mr Fowler.
b)For the mother:
i)Affidavit of Ms Almond filed 28 November 2019;
ii)Affidavit of Ms U filed 29 November 2019;
iii)Financial Statement of Ms Almond filed 21 November 2019;
iv)Affidavit of Ms Almond filed 18 September 2017;
v)Affidavit of Ms Almond filed 10 November 2017;
vi)Affidavit and report of Dr V tendered in Court on 20 November 2017;
vii)Affidavit of Mr W filed 10 November 2017;
viii)Affidavit of Dr BB filed 20 October 2017;
ix)Affidavit of Ms CC filed 19 September 2017;
x)Affidavit of Ms DD filed 18 September 2017; and
xi)A case outline document prepared for the final hearing.
c)For the Independent Children’s Lawyer:
i)A case outline document prepared by Mr Blackah, Counsel for the Independent Children’s Lawyer.
The exhibits are as follows:
a)For the father:
i)Father’s exhibit 1, the father’s minute of Orders sought;
ii)Father’s exhibit 2, a doctor’s certificate and chain of emails between the mother and the father in relation to X’s Influenza A;
iii)Father’s exhibit 3, a chain of emails between the father and the mother in relation to the ‘many pressing points’ raised by the father;
iv)Father’s exhibit 4, a chain of emails between the father and the mother commencing 18 August 2019 in relation to bruises on X’s ribs and legs;
v)Father’s exhibit 5, a chain of emails between the father and the mother in relation to X taking time off school for Eid and X’s progress generally;
vi)Father’s exhibit 6, a chain of emails between the father and the mother commencing 10 February 2019 in relation to X’s illness and soiled underwear;
vii)Father’s exhibit 7, a chain of emails between the father and the mother commencing 15 July 2019 in relation to the mother’s allegation that X’s conjunctivitis was caused by blunt trauma;
viii)Father’s exhibit 8, a chain of emails between the father and the mother commencing 28 June 2019 in relation to the mother obtaining X’s school photos;
ix)Father’s exhibit 9, a chain of emails between the father and the mother commencing 5 November 2018 in relation to updates and photos of X;
x)Father’s exhibit 10, an email from Dr P to the father dated 14 October 2019 informing the father that the mother declined further appointments;
xi)Father’s exhibit 11, two documents, the first being a document prepared by Mr Fowler showing the mother’s income from her business and the second being a document prepared by the mother setting out any omissions of payments in the first document;
xii)Father’s exhibit 12, further Child Support Agency Assessments of the father;
xiii)Father’s exhibit 13, notes from the mother’s psychologist; and
xiv)Father’s exhibit 14, email correspondence between the mother, the mother’s solicitors and the father’s solicitors dated 9 November 2018 in relation to B Group.
b)For the mother:
i)Mother’s exhibit 1, an email from the father to the mother dated 31 August 2019 in relation to potentially enrolling X in self-defence classes;
ii)Mother’s exhibit 2, a bundle of emails between the mother and the father;
iii)Mother’s exhibit 3, a photo of the mother, X and the mother’s grandfather;
iv)Mother’s exhibit 4, Child Support Agency Assessments of the father;
v)Mother’s exhibit 5, photos of X’s eye when she had conjunctivitis;
vi)Mother’s exhibit 6, a series of emails from 28 June 2019 to 5 September 2019 in respect of matters concerning X;
vii)Mother’s exhibit 7, a bundle of emails passing between the mother and the father between 26 June 2019 and 31 August 2019;
viii)Mother’s exhibit 8, a statement from Mr FF;
ix)Mother’s exhibit 9, a list of the father’s complaints about the mother; and
x)Mother’s exhibit 10, markings made by the father on further pages from the father’s Affidavit of 11 November 2019.
c)The Court exhibits:
i)Court exhibit 1, the Family Report of Ms E dated 1 December 2019;
ii)Court exhibit 2, the Family Report of Ms E dated 9 June 2017;
iii)Court exhibit 3, the Family Report of Ms E dated 10 October 2018; and
iv)Court exhibit 4, the transcript of the proceedings in this matter in the Federal Circuit Court of Australia.
The draconian and serious Orders made in November 2018 were made by consent and at a time when the mother had been abandoned by her prior legal team whose conduct and behaviour in this trial did not assist the mother with the difficulties she was having. These draconian Orders were made in circumstances where it became apparent from the evidence tendered by the mother on the last day of the hearing that she was coaching her child to say and provide evidence of poor behaviour by the father and his wife Ms D towards the child which were simply not true. The viewing of this video was distressing and clearly showed this is what the mother was imposing upon her child namely the necessity to say bad things about her father and Ms D.
The video recording was produced by the mother and played to the Court on 1 November 2018 and Ms E also viewed the video. The video showed the child, immediately after returning from spending time with her father, sitting in her mother’s lap, in her car facing the video camera on the dashboard describing a litany of complaints about the father’s treatment of her including physical and coercive behaviour and upon completion of her tale turned to her mother and said, “Is that right?”.
Thus, the Orders for no time with the mother and child came about due to the concerns of Ms E and the Court at that time that if this cycle of the child saying bad things about her father and his wife which were simply not true was not broken, irreparable emotional damage may have resulted to her and her all important relationship with her father.
The mother, to her credit, has carried out to the best of her ability the exceedingly difficult Orders when the reality was, up until an equal time Order was made by the Court in early 2018, the child had always lived in the primary care of her mother. The mother agrees, and it is clear on the evidence, that the child is extremely well cared for in the father’s home with his new wife Ms D. She is in a loving family environment with a sister and brother being the father and Ms D’s two children and told Ms E in the Family Report that she loves her little sister Y very much.
However, it is palpably clear, from reading the Family Report, and in particular the notes of the facilitators of changeover for the child, as short a period of time ago as 9 November 2019 that X is desperately missing her mother. I use the word desperate specifically. These records of changeover are part of the mother’s exhibit and tender bundle to her Affidavit. They commence on 24 February 2019, being the first occasion X had seen her mother since November 2018. On that first occasion, X whispered to the supervisor she did not want to leave her mum and felt sad.
Time continues very well. There are no reported incidents of poor behaviour of anybody, the child or either parent.
On 9 November 2019, X would not engage. She was clinging onto her mum saying she did not want to leave. She started crying repeating, “I don’t want to go”. She was clinging onto her mother and holding her stomach with her other hand. The mother assisted with the separation, walked a short way away. The child took the supervisor’s hand but tried hard to let go. On the walk back with her father, she kept turning her head and stretching out her free arm toward where we had left her mother.
X was sobbing to the point of dry retching. The supervisor tried to talk calmly to X who appeared to have disengaged and only had a focus of returning to mum. The supervisor continues:
Once we reached the walkway to be out of sight where we left mum, X wrestled with me and tried to let go of my hand, calling out, “Mummy. I want my Mum.” She managed to disengage and it appeared she would flee. She was asked to wait a moment and then commenced to walk towards her father. The father spoke softly to his daughter, telling her she would be okay, gently brushing her cheeks and her tears. The child had become extremely upset on this occasion because her mum had told her she would not be seeing her for two weeks as she was overseas for work purposes.
That is poignant, strong and clear evidence that there is a significant emotional risk of harm to this child in not spending sufficient time with her mother to satisfy her emotional need to maintain, foster and continue her all important relationship with her mother, despite what the mother’s behaviour has been in the past. I was most concerned about X’s presentation in November 2019, her palpable distress and missing of her mother
Ms E has prepared three Family Reports in this matter and, as always, her cross-examination and reports were very helpful.
I asked Ms E in cross-examination, “What is the balance in this matter? If X is still missing her mother so much, why should I not make the mother’s Orders which is an equal time arrangement?” Ms E was clear and firm. She believed that only the father was the parent best able to promote a relationship with both parents, there was a risk if the child spent significant time in her mother’s care that her mother’s poor behaviour would return and X would again be subject to her mother’s emotional baggage in relation to the father.
As the evidence unfolded, I have come to an entirely different conclusion to Ms E, both as to the balance of the consequence of X’s significant emotional distress at spending such limited time with her mother which limited time the father, effectively, wishes to continue, and the risk of the mother reoffending again and causing emotional harm and hurt to her child by not supporting her all important relationship with her father.
As the evidence unfolded, it became clear to me that although the mother had been somewhat shallow in her acknowledgement to Ms E of her disgraceful behaviour from separation up until the child was removed from her care by consent, this was not the mother’s presentation under the scrutiny of insightful and dogged cross-examination by both the Independent Children's Lawyer and Mr Fowler for the father.
Secondly, I formed a view, unfortunately, but perhaps understandably, the father’s position since the child has come into his care has been at times to punish the mother and that X’s best interests have been lost at times because of this. The best evidence of the father’s attitude to the mother is in the emails he sends her. They are at times arrogant, offensive, pejorative, nit-picking and demonstrate a micro -management parenting style. There is absolutely no reason why he needs to know on every occasion chapter and verse what this child does whilst in her mother’s care, particularly when it was for a mere six hours, yet, his emails assert at times he has a right to know.
I accept the mother’s evidence that she does not and has not answered the plethora of emails he has sent her because, (a) answers to the questions being asked were not necessary, and (b), in telling the father something, or responding to his emails, merely continues the tirade. The mother has received, at times, 11 emails from the father over one incident.
The father said he had learnt at the courses to contact the mother in a polite, respectful, business-like fashion but he has not always done this. His wife also indicated that the emails between the parties are just words and they are not getting to the point and insightfully she said, “It would be better if they focused on this”.
The mother does focus on this in her emails; the father does not. I was sorely disappointed to read how the father corresponds with the mother in circumstances where he knows and acknowledges his daughter is missing her mother and the mother is missing her daughter and that due to the mother’s prior actions he too had been subject to unfair separation from his daughter.
After having read many of the father’s emails that the mother tendered in this matter, I have come to the view, that contrary to Ms E’s opinion the father has difficulty supporting the child’s relationship with the mother. Perhaps, understandably, given how she treated him.
An email sent from the father on 19 August 2019 is as follows, “Her clothes came back dirty. She came with dirty underwear and a singlet packed in her bag. Her clothes were not clean. Her dirty school shoes were neatly placed on top of her lunch bag”. The father said of the shoes on top of the lunch box that this was the mother showing disrespect to him because she placed dirty school shoes on top of a clean lunch bag.
There are many complaints about the child not doing readers with the mother and not doing her homework properly. The mother has a different attitude to homework to that of the father who is fixed, somewhat rigid, very calm and controlled in his conduct and attitudes. The mother’s attitude is not as rigid or fixed as the father.
The mother was not receiving copies of X’s school report and was having difficulty convincing the school that she was able to have this access. She asked the father for a copy of the child’s school report. The father writes back in an email dated 19 August 2019:
You know very well you have full access to school and teacher communication and that it is your responsibility to follow up as required. Therefore, it is not to come from me despite what you insinuate or suggest. Please do not make it out I haven't spoken to you about X’s academia.
All the mother was inquiring about was how her daughter was going. She had spoken to the teacher once and had been informed that that X is an avid reader, what the homework was and how and when it was to be completed.
It is correct that the school app provides general information about the school, however, this is not information about a specific child as is a school report. There would have been nothing wrong with the father, who has the primary care of the child, either providing a copy of the child’s report and contacting the school and telling them to do what they should have done. This was a high-handed and moralistic approach to take to a mother who is trying her very best to be part of her daughter’s life in a very difficult situation.
The mother’s exhibit 1 is an email to her from the father dated 31 August 2019 where he said he was asking her questions. He was not and was rather making statements critical of the mother:
X came today complaining her neck was sore. She said she woke up that way. Does she sleep in a separate bed or with you? She said you checked her neck. What happened? Did you treat? If so, what was done? Do you know if the pain was from anything other than sleeping?
She also had a headache since breathing in the chemicals at the nail store (getting her nails done). She commented on being there for a long time. I do not think it is fine for her to be exposed to unnecessary chemicals, especially ones known to be harmful (hence the employees wear masks yet the patrons do not – then there are children to consider).
Did not have lunch.
Movie she watched last night? What was it as she commented that she saw grown-ups kissing on the lips- she is 6 years old and wanted to try this after witnessing such when with you (apart from this movie).
The small sized jacket, onesie she wears at night that she complains she gets cold and has Goosebumps when needing to disrobe from it to go to the toilet.
The matters the father complains of in his email are minor. They are nit-picking and the manner in which he wrote to the mother does him no credit and is support for the mother’s position that the father treats her with disrespect. Given that the child is living with the father 12 nights per fortnight and that he knows full well the child is missing her mother, and that the mother missing the child, his lack of compassion for the mother is a concern for me as it will rebound on X.
On the other hand the mother did not follow the father’s advice in relation a time when the child had influenza type A. It is inconceivable to me that she was diagnosed with this condition, her father sent her with medication and advice as to its administration yet the mother said she had no temperature at her home.
Secondly, when the child had conjunctivitis, the mother’s response to the father’s appropriate treatment and advice to the mother was to take a photo of the child’s eye, send it to a GP friend of hers who apparently told her the child could only have received this eye injury via trauma and then send this information on to the father. This is example of poor communication by these parents and each trying to control the other in matters concerning their child.
Unlike Ms E, I do not accept that the father has a greater capacity to support the child’s relationship with the mother now than the mother has to support the child’s relationship with the father. The mother has admitted to her appalling behaviour and treatment of the father. She has been subjected to cross-examination and, in cross-examination, set out clearly what she said she had done. Her Counsel called her behaviour reprehensible. Ms E thought that was too strong a word. I agree it was reprehensible behaviour and the mother told the Court exactly what she had done and acknowledged the harm she had caused her daughter, and the hurt she had caused the father by this behaviour.
The mother was asked, “You described your past behaviour as reprehensible. Do you agree?” She said yes, and followed with:
The detrimental effect on X’s relationship with her father, accusing him of hurting her, involving her with the police, that he had sexually harmed and was physically harming the child, involving social workers in my allegations of him harming the child, taking her to hospital in relation to my allegations.
The mother then said, “At the time I thought everything was so real, but, now, looking back, I have perspective and it’s just not right. Mr Sheffield would not do that to X”.
The mother was asked, “What are the specifics of what you alleged against the father?” The mother calmly and emotionally listed what she had done and did not attempt to hide, minimise, disguise her conduct and was anything but superficial.
The mother said the following:
That he punched her in the stomach, that he hit her on the head, I made assertions that he was out to harm her. That he was not as good a parent as me. I relocated to B Town without telling him. I did not think about his feelings at the time. I enrolled her in a school without his knowledge, didn’t even ask him. I used Mr J’s last name as her last name. I let her call Mr J “daddy”. I failed to return to Sydney when ordered to do so by the Court. I travelled to City EE with X without letting him know. I did not let him know what was happening in X’s life and it was really wrong. I now see how hurt and upset he would have been over that period of time.
I formed a view that the mother was sincere and that she now knew the seriousness of what she had done. Adults are fallible and the road to Damascus is not always clear.
The mother’s argument that she has not said sorry to the father because she wanted to do it face-to-face was obfuscating and shallow. The mother could have said sorry to him in many ways, such as sent him a gift, a card, a letter, an email, because she should be sorry for what she did to the father and to her child as I accept she is extremely sorry and regrets deeply the harm and hurt she caused her child, and that she understands the harm and hurt she caused the father. I formed a view she will not repeat this behaviour because what is at risk is her relationship with her daughter and that her daughter’s relationship with her is a driving force in the mother’s life.
The mother has suffered deeply by having such limited time with her beloved daughter and, unfortunately, so has X. That is the conundrum for me. X is suffering because of her mother’s poor behaviour and the question for me is, do I continue that suffering by limiting the time with the child and her mother as the father seeks and as Ms E recommended to some three nights a fortnight and perhaps a meal in the off-week, or at best, four nights a fortnight into the long-term as the Independent Children’s Lawyer posits. That is the issue.
There is no doubt the father is justified in not trusting the mother and there was evidence at the trial that the mother continues to not tell the truth when she does not think it is going her way. For example, she was evasive in the extreme in relation to her relationship with Mr FF and where she obtained money to fund legal fees. For what reason, I do not know. That did her no credit at all. The mother has not paid child support and the father has solely financially maintained the child at great expense to himself and his wife and his other children.
The mother said she went to work in America and Asia. I accept this and have no difficulty with the mother doing so, however, she conveyed in her Affidavit that this was to earn money to pay for her legal fees and family therapy when it was not. I see no issue with the mother travelling overseas and missing time with her child, earning no income for that period in order to learn new skills as she said she did in America and networking as she said she did in Asia. The issue is not telling the father this and letting the Court believe she was earning money to pay for legal fees. The mother needed to be completely honest in all aspects of her evidence given her past conduct and yet her Affidavit was misleading on this point.
The mother was perfectly entitled to engage in that activity. The difficulty is that she did not tell the Court or sought to mislead the Court. This is problematic in circumstances where the mother has simply lied and misled the father and the Court in the past. As difficult as it is, the mother needs to be completely transparent in all her dealings and I accept the submission by the father that there were times the mother was not transparent and this was an issue for Ms E as well.
The Father’s Evidence
There was much questioning of the father about the issue of shared parental responsibility. Ms E recommended sole parental responsibility and that the child reside with the father, and this is an Order the father seeks. There is some force in the father’s argument. The email correspondence between the parents is fraught. Although the mother responds somewhat politely she does not give the fulsome information that the father demands of her. The father is careful, rigid, cautious, and fixed in his views. The mother is none of these and therein lies one of the difficulties in their relationship and their parenting.
I, too, am concerned that decisions for X that must be made may be delayed because the parents cannot agree and that continued argument between them on these issues will further damage their relationship and thus X’s capacity to have a relationship with each them. Thus, there is a real practical issue here about responsibility being shared between the parents.
These characteristics of the father; careful, rigid, fixed, only do what Orders say he should do, do not step outside of the Orders even if you are concerned about your child missing the mother; has also led me to the view that he will not be able or capable of coming to an arrangement with the mother in the future for more time with X and her mother even if he thinks it is appropriate.
I have formed this view for two reasons. First, the mother will never be able to redeem herself in the father’s eyes and I do not criticise him for that. Second, his rigid position will not permit him to do so. He will always believe that the child is at some risk in the mother’s care and he has some justification for this belief. Therefore, I must make Orders providing for any increase in time with the child over and above that which the father seeks if I do not make the equal time Order as the mother seeks.
As Mr Batey said to Ms E, she is in a unique position having seen this family since 2017 and prepared three reports.
Ms E’s report of 1 December 2019 made the following recommendations: that the father have sole parental responsibility; that the child live with her father; that the child spend time with her mother each alternate weekend from after school Friday to before school Monday, time in school holidays, speak to her mother on FaceTime, special days and the like.
The father’s orders do not provide for any FaceTime. He said that this is because it has been difficult in the past. I accept this, however, the child desperately misses her mother. That is no reason not to let the child have FaceTime with her mother. That is something the father and his wife simply have to manage.
This rigidity in views: “Well, it’s not working for X” or, “We have difficulty, therefore we don’t do it,” is not acceptable in circumstances where a child is so desperately missing the other parent. This need of X’s missed the father completely.
In relation to homework, the father asserted the child does not do her homework whilst in her mother’s care, or does not do it properly. I do not accept that this is correct or that it is the issue the father portrays it to be at this time.
However, two things need to be said which have fuelled the father’s concerns.
The mother gave evidence about a time when X had not completed some spelling words. The mother completed the spelling words for X using her left hand so that it would look like X had done the work. The child was then encouraged to indicate to the father and Ms D that she had completed the homework. This was a very poor decision by the mother and harks back to how she was behaving after separation. The father was justified in being angry about this at two levels: first, X did not complete her homework and someone else did it, and second, to be encouraged to lie about it and pass it off as her homework is a real concern.
This was an appalling message to give a child whose emotional attachments have already been significantly disrupted by the behaviour of one parent, the mother in this case.
On the other hand, despite the father’s concerns about the homework not being done in the mother’s care, the child is doing very well at school thus the homework issue may be a red herring at this time. The mother’s reasons for doing what she did on that one particular day may have much to do with the father’s, what I would call, harassing and hectoring emails on this issue. He would do well to leave it alone because, as the mother says, the emails consistently come and continue to be sent if the father does not get a response he wants or any response. This is an area the father must work on. The mother will never be like him and the father will never be like her.
Even so this insight does not justify the mother’s behaviour for all she did was shift responsibly to her daughter, she having avoided confronting the father, and this is not appropriate
There was some force in the father’s argument that the mother does not listen to him about X’s health and his advice to her fell on deaf ears in relation to the influenza type A and the conjunctivitis. The mother’s conduct on that occasion is inexplicable for I accept this is a mother who will always do what her child requires, yet, because of the father’s, as she would regard, hectoring and lecturing tone to her about these matters, she does not follow his advice, not because it is not correct, but because it bothers her. Who misses out? X. This must cease and is another reason why parental responsibility cannot be shared.
I will make an Order that the parents take the child to the same medical centre and endeavour to use the same doctor to avoid these difficulties happening again and that both parents may speak to the child’s treating medical practitioners on any occasion. There was effective agreement on this issue.
Ms E’S Evidence
Ms E said there was no impression that the child had been coached by either of her parents at the interviews. She made much of the change in X’s presentation at paragraph 85 after she had seen her mother. This is hardly surprising to me given the significant emotional attachment the child has to her mother being expressed at the changeover on 9 November 2019 calling out, “Mummy, mummy. I want my mum.”
I put this to Ms E and she said she had formed the view that the child’s presentation was so changed because the mother had given the child the impression of something about the other parent that was not in line with their experience of that parent namely the father. Thus, Ms E opined that the mother was still giving the child an impression that there was something wrong with her father when, from X’s point of view, there is nothing wrong with her father, although she complains about him being cranky. Ms E said as follows:
The change in X concerned me as she is more aware of the conflict and cognisant of their emotional states and if this conflict does not diminish, it will have an impact upon her.
Ms E could not recommend one overnight stay a Tuesday and if there was to be additional time, it should be in a block. She agreed her recommendations were conservative because the consequences of things not working out for X and returning as they were, are very high and Ms E was not convinced that things would be fine in the end as the mother seemed to indicate they would be.
My preference is to start conservatively and build from there, however, Ms E could not give me any idea how I could build from there. She agreed the child missed her mother, then talked about the differences between a quality relationship and the consequence of having the relationship that you might want but it may not be good for you to have. I am reminded however that the relationship under discussion is with the child’s parent her mother. I pressed her: “Did she think three nights a fortnight was enough time for this child?” She said, “I do.”
Ms E did not accept that the child’s behaviour changed because she missed her mother and wanted to spend more time with her and said that this was too simplistic a reason why her behaviour changed. Ms E reiterated that the video the mother showed the Court on the last occasion was most concerning and supported the father’s position at that time which was also supported by police notes that the mother was coaching the child, and this was noted at her day care and the police interviews.
Under cross-examination by Mr Fowler, Ms E said she had hoped the mother would have learned and developed insight into the impact of her behaviours on her child and the ability to separate her needs from her child’s needs. That the mother had been emotionally abusive and that she hoped she would develop insight into her behaviour. That if you get that insight then you have a motivation for change, real change, deep change. You reflect on what you did and why you did it. You take responsibility for your past conduct, and this is an important step for the future. Ms E was of the view that the mother’s insight was shallow.
Ms E said the mother had some deep seated issues of her own and therefore needed her own therapeutic intervention and family therapy was crucial to enable these parents to have a relationship that supported their daughter loving both of them and having both of them in her life.
In cross-examination with the Independent Children's Lawyer, Ms E said she hoped to see, for the mother after family therapy, that progress was made consolidating the mother’s understanding and the impact of conflict on her daughter and the importance of the father for X.
For the father, Ms E hoped to see that he could talk about X’s presentation as a child moving between two different households and normalise her presentation and behaviour, rather than pathologise it as he clearly does, from a good motive. That X was to have her own counsellor.
Ms E said the mother’s response to her about the impact of her prior behaviour on X was superficial and from a reading of the report that is correct. Paragraph 81 of her report:
On the face of it, this appears to have been an epiphany of sorts on Ms Almond’s part. Certainly, the way she spoke about Mr and Mrs Sheffield was markedly more conciliatory and inclusive than in past report interviews. It is clear that Ms Almond was deeply affected by not having any time with X for three months and this had allowed her to develop perspective that she was previously lacking. At the same time, however, Ms Almond’s reflections on her past actions and the emotional harm they caused to X was limited to the concession that X “felt under pressure”, which was not good for her. Ms Almond resisted the invitation to talk openly about her behaviours other than to say she has now realised she has made mistakes and that she is “not perfect.” This seeming resistance - particularly when the stakes are so high - is troubling, as it suggests that Ms Almond’s change of attitude may be externally motivated rather than intrinsically held (following her self-reflection over time).
Ms E noted her Affidavit of 29 November contained a number of general statements which were indicative of remorse and emerging insight about the impact of Ms Almond’s actions on X. Importantly Ms E, whose evidence was given before the mother gave evidence, did not see the mother set out in chapter and verse, the litany of disgraceful behaviour she perpetrated on her daughter and her daughter’s father.
There was certainly criticism of both parents in relation to the engaging in family therapy, however, I accept this therapy is extremely expensive for these people.
The mother pays no child support to the father and he solely supports X. The father has a limited income, he has rented a four bedroom home for himself, his wife and the three children in his care, and the mother’s decision not to provide any financial support is a poor one. Although the father said he will afford family therapy at $250 per session, such a cost may well be out of these parents reach. However, it is imperative that family therapy continue but it can continue at a Relationship Centre, Interrelate, Relationships Australia, Unifam and other such publicly funded organisations which provide a similar service, albeit perhaps not as robust, for parties at a cost that they can afford.
The parents have had seven family therapy appointments and, as Ms E said, this is nothing like intensive family therapy that is needed. Given that X’s time with her mother commenced after only one family therapy session, it is not surprising there were issues and there were always going to be issues. The father must have expected there to be issues and not to have expected this would show a lack of insight by him into his child’s needs.
In relation to the father, Ms E says this at paragraph 84 of her latest report:
Mr Sheffield has continued to be critical of Ms Almond’s approach to clothing, personal hygiene, health needs and schoolwork. While he was able to acknowledge that his concerns have been and remain largely value-based, he views Ms Almond’s actions/responses in this regard as being deliberately provocative rather than, say, merely indicative of differences in approach.
This is a form of rigid and inflexible thinking on Mr Sheffield’s part, stemming from a lack of trust on his part regarding Ms Almond’s motivations, as well as a lack of respect for her autonomy as X’s mother. While this lack of trust is, on the one hand, understandable given the evidence before the Court and the history of the matter over the last three years, if Mr Sheffield continues to ascribe malign intentions to Ms Almond’s behaviours, this will have the effect of involving X in the parental conflict in ways that will continue to cause her distress, confusion and uncertainty.
Ms E quoted from her second Family Report:
Mr Sheffield puts a strong emphasis on structure, routine and achievement. He and Mrs Sheffield were highly critical of what they perceive to be inadequacies in Ms Almond’s care of X. While they strongly emphasised that they protected X from their views (by remaining neutral about her mother and aspects of her mother’s parenting that concerned them) the report writer is not convinced this would always be the case, based on the intensity of their feelings in this regard, which are not necessarily congruent with the amount of ‘harm’ that would come to X from the concerns they described…
…There is a risk that if X is continually modifying her needs, wants and even personality in a way that meets what she believes both her parents want, she will move between the households under fairly constant pressure to conform to these ideals and the emotional and cognitive stress of having to manage this will take its toll on her and is likely to affect, for example, her learning and her socialisation skills because she is so focused on her parents’ emotional state that she is unable to focus on her own.
This is why family therapy is so important.
The oral evidence of the father, his Affidavit, his instructions to put matters to the mother in cross-examination particularly concerning her forgoing income in Australia for her overseas trips, confirm precisely what Ms E said. He puts a strong emphasis on structure, routine and achievement. The mother may have a different emphasis and her emphasis may be just a valid as his and the father must accept this is a possibility.
Dealing with the mother’s reflections of the events of 18 November 2018, Ms E said at paragraph 18:
Ms Almond described herself as feeling “very confused” by the orders that were made. She believed that the Judge ordered X to live with Mr Sheffield “because X was trying to please everyone and it was too much pressure for her.” Ms Almond said that although she was very upset that she couldn’t spend any time with X for three months, “I can understand that (the Judge) thought I needed this time to reflect. And I cried a lot.
Ms Almond expressed the view that the three-month break with no contact at all was “harsh” and very hard on X “because she thought she had done something wrong. And she was angry.”
The mother’s view in part is correct. X has paid the price for her mother’s poor behaviour. Ms E described this as a superficial response from the mother given the Court made the Order that X live with the father to give the child a break from the mother’s continual reinforcing in the child that her father was a danger to her when, from X’s experience, it was to the contrary. Unfortunately, X is still in the situation of trying to please her parents and is currently paying a high price to maintain her all-important relationship with her mother due to her father’s understandable attitude to the mother.
I accept Ms E’s comments that, in the Family Report interview, the mother’s insight into why events occurred and the consequences for her daughter, was superficial and limited. That was not the case in cross-examination.
Secondly, and equally as important, the mother has not acted in a way to undermine X’s relationship with her father at any time. She has not involved the child in the dispute. Rather, she has kept her free from it, and she has done nothing other than support the child’s relationship with her father. I cannot say the same for the father.
Ms E said she got a sense from the mother that she believes there had been a blip and that things happened, but they were going to be alright in the future, and that there is a long road ahead for everyone to retrieve from the situation and her reflection was superficial.
Ms E said the mother’s comment in paragraph 22, that what she had learnt from attending family therapy, “I was reacting because he would send me multiple emails – were not child focused”, was the mother blaming the father for her conduct. The difficulty with that comment is, the emails the father sends are not always child focused. Rather, they are sent in an endeavour to control her, manipulate her and to get her to parent the child the way he parents the child. I do not accept Ms E’s opinion that that was the mother blaming the father, she was rather stating the reality.
It is important that the mother learns not to react emotionally and she does not in her emails. They are calm and considered. The father would do well to read them and take a leaf out of her book and his wife, to her credit, indicated similarly.
I did not see that the mother was superficial at paragraph 22 and it is positive that at paragraph 23 she said she had learned how not to expose X to conflict and gave examples such as taking the perspective of the other person which she said for the father was wearing particular clothes, makeup and nail polish, and said, “I will do what I can to make X less anxious”.
The mother is right. The father is trying to control how X is parented when in her care because he has a different view. His emails indicate he disagrees intensely with the mother’s parenting of the child. This is not lack of insight by the mother rather extremely insightful comments by her as to one of the reasons why the parents’ relationship is so bad.
The mother reflected on her past conduct and said she now knows and accepts that the father wants what is best for his daughter. “I have to accept it. I shouldn’t react emotionally, and I should try and be flexible”. The mother is flexible. The father is not. He is rigid, and it is very unfair to criticise the mother for stating the obvious.
Ms E gave sage advice, the parents have to be very careful accepting at face value what their daughter says, because she is still living in a conflicted parenting arrangement, and has lived in a high conflict parenting arrangement. The mother’s difficulty in telling the father what her concerns about X are due to his reaction is important for family therapy. This will assist the parents to be able to communicate. I accept what the mother says. If she raises an issue with the father, he will hammer her with it. He needs to be more respectful.
Ms E was asked a question whether X has to say bad things about her father to gain her mother’s approval. This question backfired, because Ms E’s evidence was, “X may have learnt to say bad things to each parent to keep them happy, and she is managing the adults in her life, and this will impact upon her capacity to grow.” That is correct. The father is just as guilty of this now, albeit not to the same level as was the mother.
It was then put to Ms E that the father has been able to support the child’s relationship with the mother better than the mother with the father. Certainly prior to November 2018 that is a true statement. However, after hearing the evidence and viewing the material, I formed the view the father has difficulty supporting the child’s relationship with the mother as well, due to what happened to him in the past, and his rigid and inflexible view of the world.
The Court asked Ms E the following question: “If this is going to be a problem for X and both her parents, that is, the support by each of them of the other’s relationship with the child, why would I not make an order for equal time or something approaching that”? Ms E was firm in her view that the father has the greater capacity to support the child’s relationship with the mother. I asked her, “Would parallel parenting be appropriate?” and Ms E was firm in her view it would not.
Ms E then made a sad comment, “I do not think X will ever be able to love her parents without it being a burden to her.” Each of the parents, and Ms D must take this on board, because, in the last 12 months, I do not see the father has behaved as well as I thought he would have, if I am to accept his mantra that his daughter’s interests are at the forefront of his mind.
Ms E was asked by Mr Batey, “Well, if the mother felt better, and it would assist the mother to fulfil her need to be part of her daughter’s life if there was an equal shared parental responsibility Order.” Ms E was of the view that that was the position previously, it had not worked, and she would need to see some evidence of the change in the mother, which she has not.
Ms E said she proposed additional time with the child in the school holidays in a relaxed environment, given the father’s rigidity in relation to school but she would support half school holidays if the Court made an increased time Order than that proposed by Ms E.
Ms E said in answer to a question from Mr Batey concerning the mother’s epiphany, “I said the mother had an epiphany but I have nagging doubts and she was critical of the father.”
The reality is, Ms D and the father were critical of the mother and the mother was critical of the father in their written material. Unfortunately, this is how family lawyers believe their clients must present at a final hearing, when anything but this is the case, unless that they be real or substantial criticisms, which criticisms by the parties of each now did not necessarily fall into that category.
Ms E agreed she saw a malignant intent in the father, and I accept this opinion. This malignant intent comes through clearly in his emails and in his oral evidence. For example, the father said he interpreted many of the mother’s actions as spiteful, such as putting dirty shoes on top of a clean lunch box.
Ms E reiterated that her recommendations were conditional upon each parent attending family therapy. I will make that Order, and I can only hope they undertake much needed family therapy.
Ms E correctly pointed out the conundrum for the Court. The father still sees the mother’s actions, behaviour and conduct through the lens of what occurred in the past and he has justification for this. Her treatment of him was reprehensible. The mother is now putting her best foot forward, is looking to the future, and I accept has realised the harm she perpetrated upon her daughter, if only for the reason that she has been not spending appropriate time with her. Since this realisation in November 2018, the mother has moved on, however, the father is still very much stuck in the past. I have formed the view it is the father who may need more intensive therapy than the mother given the behaviour of the mother towards him.
There was an issue about the mother making two calendars for X, and she believed they had been, to use the colloquial expression, “trashed” at the father’s home. The first calendar was placed on the fridge at home and when it was no longer needed it was discarded. The second calendar was just left in the car. Ms D said she did not bother to put it back on the fridge because X did not seem to use it. She and her husband did not want X to be focussing on when she was going to spend time with her mother and discarded this calendar.
I found this to be a heartless act. X and her mother may well have made that calendar together and rather than the father and Ms D realising the reason the child focused on the calendar, was because she was desperately missing her mother, they sought to take it away believing this action would in some way ameliorate her loss. It did not, and it would have exacerbated it.
It is clear that the mother’s love and affection for the child has been a sufficient motivator for her to amend her ways and never behave again in the fashion she behaved post-separation. The father is still stuck in the past and although the father wants X to have a relationship with her mother, he struggles to accept that the mother is the mother that X needs. That is not a matter for him. Ms Almond is X’s mother. He is X’s father, and we adults must learn to deal with that fact and accommodate it.
When pressed on what her nagging doubts were by Mr Batey, Ms E said, “The mother’s interview with me was superficial in regard to what had occurred. The superficial description of what had occurred and a resistance to telling me about what she had learnt about the impact of this on X.”
The mother was not superficial or resisting in cross-examination in relation to her past conduct and its impact on her daughter and the father. The mother was forthcoming, forthright, and it came at a significant emotional cost to her. I accept there were difficulties with attending family therapy with Dr P, not because the parties did not want to engage, but rather that it is extremely expensive.
As it transpired, the father’s complaints about the child going to a nail parlour and inhaling fumes, was a furphy. She went once. The father micromanages, or endeavours to micromanage, the mother’s time with the child, and this must cease.
It was posited by the father that the mother had been anti vaccinating the child. That is simply not the case. The evidence at the last day of the trial, when the Consent Orders were made, was that the mother wanted time to consider the vaccination program, but she agreed clearly in the transcript she wanted her daughter vaccinated. This was an unfair comment, and the father sought to mislead me in his Affidavit.
The father and his wife were of the view that they could not provide any more time for X with her mother than that which the Orders of the Court provided for. I do not know where that view came from. It was not in the Orders, and the parties were at liberty to provide additional time for the child, particularly when each of them said they recognised the child was missing her mother.
The parties’ competing proposals
The mother seeks equal time and equal shared parental responsibility.
The father’s proposal is three nights a fortnight from after school Friday to commencement of school Monday. This would result in a gap of 11 days for the child in seeing her mother. The father agreed to perhaps a meal in the other week, however Ms E posited block of time and that it not be broken up.
To support his position, the father said the child’s behaviour changed when she commenced spending time with her mother, and particularly overnight time. This is hardly surprising. The child has been through significant emotional upheaval. It is to be expected. For the father, as Ms E says, to pathologise her behaviour as something to do with the mother, is simply not accepted by me.
I described the father as being stuck in a box. He felt boxed by the Orders and could not see his way out of it, and could not allow his daughter to spend more time with her mother. Either that or it suited his purposes. He could not see that the mother wanting to have equal time with him was extending an olive branch.
The father’s concerns about the child having a block of time with her mother was that the mother could influence the child. This was also an issue for Ms E. However, I could not see that either Ms E or the father had considered the real consequences for X in not spending sufficient time with her mother, and three nights a fortnight may not be sufficient time with her mother given her behaviour in November 2019, calling out for her mother and dry retching when she learnt she would not see her for two weeks.
The Independent Children’s Lawyer asked the father about Ms Almond’s epiphany and the father said, “I want to believe it but I have difficulty in trusting her,” and I understand his position. The Independent Children’s Lawyer then asked, “What does she need to do to gain your trust?” The father produced a litany of things she needed to do, marked mother’s exhibit 9. She will never be able to achieve these things. The reality is that the mother will never regain the father’s trust, and in those circumstances he will never increase the child’s time with her mother willingly.
I found Ms D to be a caring and supportive woman who provides a role model for the child when she is in her care. However, as she acknowledges she is not X’s mother and X knows this. X is very attached to her siblings. She is very attached to her father and to Ms D, but equally strongly attached to her mother. She has, by her conduct and actions, told the Court, “I want my mother. I want my mum.” That is what she wants.
Despite this I agree with the father’s concerns that the mother still continues to be secretive, for example, her relationship with Mr FF, travelling overseas to earn income when she was earning no income, and other similar matters. These are two important factors in my decision.
The Law
I must now follow the pathway set out in Goode & Goode[1] in order to determine which Order I should make in the children’s best interests.
[1]Goode & Goode [2006] FamCA 1346.
In determining what is in a child’s best interests, a Court must consider the matters set out in sections 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”).
The primary considerations in section 60CC(2) of the Act are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The additional considerations in s 60CC(3) of the Act are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
I will rebut the presumption of equal shared parental responsibility. I agree it cannot be shared given the state of the parties’ relationship. It must reside with one parent so that appropriate decisions are made promptly and the father has made appropriate decisions for his daughter over the last year regarding her health, education and accommodation. There is a lingering doubt in my mind as to the longevity of the mother’s epiphany, but I accept currently she is doing her absolute best to never again perpetrate the harm upon her daughter that she did post-separation in regard to her relationship with her father.
The child benefits from a meaningful relationship with each of her parents. That is clear. She has been subjected to poor behaviour in her mother’s household, been taken to police, been encouraged to make false allegations and accusations against her father, been removed from Sydney under subterfuge to B Town, spent no time with her father for periods of time, the mother entering into a new marriage with someone that she would not reveal to the Court. This behaviour has affected the child deeply, and was truly reprehensible.
The wishes of the child are clear. She wants to spend more than the two nights a week she has now with her mother. It is clear that the mother is the child’s closest emotional attachment and that she is strongly emotionally attached to her father , his wife and her siblings .
Each of the parents have the capacity to provide for the child’s emotional, psychological and educational needs. They have different priorities and different ways of going about it.
The father is rigid and fixed in his ways about how things should be done and what should occur, and very much follows rules and regulations. The mother is more a free spirit. This is good for X to experience the difference in each parent’s household, provided they can support the other parent to X.
The mother, I believe now, can support the differences in the father’s household, and she was very complementary of the care the father and Ms D have given to her daughter since 2 November 2018, and agreed that Ms D provides a wonderful role model for the child and cares for her well and deeply.
The father cannot accept, as Ms E opined, that the mother is the mother the child needs. However, she is her mother and it is as simple as that and he must accept this.
Each parent now takes their responsibility of parenthood seriously. The mother did not initially, as she believed the father was not important to the child, when the evidence is clear, the father is equally important to the child as is the mother. I accept the mother now understands that this is the case and realises the harm she perpetrated upon her daughter.
The balance for me has been the clear need of this child to spend more time with her mother than is currently occurring and the impact upon her if this is not remedied with the shallowness as Ms E described it of the mother’s epiphany, her secretiveness and risk of the mother again forming negative views of the father and X again feeling pressured to act as her mother wants.
The Independent Children’s Lawyer sought to ensure X spent time with her mother each week and posited four nights a fortnight would be the balance with three nights in one week, one night in the other week. Ms E was of the opinion that if four nights was ordered it should be in one block of time.
I have formed the view, consistent with Ms E’s evidence, that if there was to be an increase in time, it had to be staged over time and that it should be in a block.
Weighing up all the evidence, the factors under the Act, the competing risks of X not spending sufficient time with her mother, and the mother’s epiphany being only shallow that X’s need to have a significant block of time with her mother going into the future is the overwhelming consideration, and that an Order in her best interests is to increase her time to six nights a fortnight ultimately.
I am further supported in this view as after hearing the mother’s evidence, a benefit not afforded to Ms E. I find the mother’s epiphany was not shallow and her deep love for her daughter will ensure she does not behave in the future as she did in the past as she is now well aware of the risks to her child in so doing. I accept there may be an issue with the longevity of her epiphany, however, I find currently and in the foreseeable future the mother believes what she told me in cross-examination as to her conduct in the past and X’s needs to have a relationship with her father. The mother may always be secretive about her personal life and although not an ideal characteristic this risk does not overwhelm X’s need to be with her mother for significant periods.
Equal time would not be appropriate given the delicate state of the parties’ relationship and the very different parenting styles in each household.
I agree with the position of the Independent Children’s Lawyer that the child should immediately commence spending four nights a fortnight with her mother but that this time be in a block from after school Thursday to the commencement of school Monday morning each alternate week.
Commencing the first Thursday of Term 3 of the 2020 school year, the child’s time with her mother is to extend to the commencement of school Tuesday each alternate week.
Commencing the first Thursday of Term 2 of the 2021 school year, the child’s time with her mother is to extend to the commencement of school Wednesday each alternate week.
The parents may, by agreement, vary the start day and cessation day of the child’s time with her mother to commence on a Friday after school for example.
I will make the additional Orders sought regarding holidays, birthdays and the like as sought by the parties as I determine appropriate where there is a difference.
I find it is in the child’s best interests to live primarily with her father, that he have sole parental responsibility, time with her mother to increase immediately to a block of four nights a fortnight, to increase this year to five nights and ultimately to six nights commencing the first week the child returns to school in the second term of 2021.
I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 20 February 2020.
Associate:
Date: 20 February 2020
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Family Law
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Civil Procedure
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