Shilton and Vallier
[2012] FamCA 944
FAMILY COURT OF AUSTRALIA
| SHILTON & VALLIER | [2012] FamCA 944 |
| FAMILY LAW – CHILDREN – Best interests – Substantial and significant time – Parental responsibility – Equal time – With whom a child lives – Independent child lawyer – Self-represented litigant – Single expert witness – Where the single expert witness said the wishes of a 12 year old child would carry weight in normal circumstances but that these were not normal circumstances – Where the child enjoys a good relationship with both parents but where there is a poisonous relationship between the parents – Where the parents have not been able to protect the child from their ongoing conflict and hostility – Where there has been a level of family violence – Where the child was capable of using manipulation as a means to find a way to spend more time with a parent – Where the child is exposed to psychological and emotional abuse |
| Family Law Act 1975 (Cth) – Part VII, s 60B, s 60CA, s 60CC, s 60CC(2), s 60CC(3), s 61C, s 61DA(1), s 61DA(2), s 61DA(4), s 65AA, s 65DAA(1), s 65DAA(2), s 65DAA(3) |
| Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 MRR v GR (2010) 42 Fam LR 531 |
| APPLICANT: | Mr Shilton |
| RESPONDENT: | Ms Vallier |
| INDEPENDENT CHILDREN’S LAWYER: | Batey's Family Lawyers |
| FILE NUMBER: | PAC | 40 | of | 2011 |
| DATE DELIVERED: | 9 November 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 28 and 29 May 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Blackah |
| SOLICITOR FOR THE APPLICANT: | Gray's Legal |
| FOR THE RESPONDENT: | Ms Vallier, in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Weaver |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Batey's Family Lawyers |
Orders
That the following parenting orders are made in relation to the child B born … August 2000 (“the child”).
That all previous orders are discharged.
Parental responsibility
That the father and the mother have equal shared parental responsibility for the child.
Live with
That the child shall live with his mother.
Spend time with
That the child shall spend time with his father:
(a) During school terms
(i)In each alternate week commencing on 15 November 2012 from conclusion of school Thursday to commencement of school on the following Monday and extending to commencement of school on the following day if Monday is a public holiday or pupil free day;
(ii)In the intervening week from the conclusion of school Thursday to the commencement of school the following day;
(b)Half of each New South Wales school holiday period as agreed between the parties and failing agreement for the first half of the holidays in even numbered years and the second half in odd numbered years;
(c)On Father’s Day from 9:00 am to 6:00 pm when the child is not otherwise in his father’s care;
(d)On the father’s birthday and on 25 July each year from 3:00 pm to 6:00 pm if a school day and the child is not otherwise in his father’s care.
That the child’s time with his father shall be suspended from 9:00 am to 6:00 pm on Mother’s Day and from 3:00 pm to 6:00 pm on the mother’s birthday if the child is not otherwise in his mother’s care.
Changeover
That changeover shall occur at the child’s school or at the Suburb C Police Station, Street D Suburb C as appropriate.
Telephone and Communication
That each parent shall telephone the child between 7:00 pm and 7:30 pm each Monday, Wednesday and Saturday when the child is not in their care respectively
Other orders
That the New South Wales school holiday period shall be deemed to commence at the conclusion of the last gazetted school day and shall conclude at the commencement of the first day of the school term. The midpoint of the school holiday period shall be deemed to be 5:00 pm on the day half way through the said period.
That both parties shall notify the other within 24 hours of the child becoming seriously ill.
That neither party shall denigrate the other or the other’s family and shall use their best endeavours to ensure that third parties do not denigrate the other party in the presence or hearing of the child.
IT IS NOTED that publication of this judgment by this Court under the pseudonym SHILTON & VALLIER has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAC 40 of 2011
| Mr Shilton |
Applicant
And
| Ms Vallier |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Shilton and Ms Vallier are the parents of B who was born in August 2000. For convenience I shall refer to them as “the father” and “the mother. They have been litigating about the parenting arrangements for the child now over many years. They have asked the Court to determine their dispute and put in place final parenting orders.
Background
The father, 43 years of age and the mother, 37 years of age commenced cohabitation in mid-2000 and finally separated in late 2001.
B is the only child of the parties’ relationship. He is currently 12 years of age.
The father has one child of a previous relationship, namely, E who was born in July 1996.
The mother has two children from subsequent relationships, namely, F who was born in July 2004 and G who was born in August 2009.
In December 2003, the father filed an Application in the Federal Magistrates Court.
In approximately October 2005, the mother separated from F’s father, Mr H.
In December 2005, the parties entered into consent orders providing for a shared parenting arrangement under which B lived six nights a fortnight with his father and eight nights a fortnight with his mother.
In late 2006, the mother commenced a relationship with Mr J. They married in November 2008.
In late 2010, the father commenced cohabitating with his former partner, Ms K. Ms K has 2 children L and M. They lived with their mother and the father each alternate week and spent the intervening weeks living with their father.
On 12 December 2010, B told his father that Mr J threatened to stab him with a fork. The father reported the matter to police and prevented B from returning to his mother’s care for some weeks.
On 6 January 2011, the father commenced these proceedings in the Federal Magistrates Court.
During the investigation of the allegations made by B, the child withdrew the allegations. The father said that the child had told him that he made a false allegation because he wanted to stay with the father.
On 28 February 2011, Federal Magistrate Harman made interim orders, in summary, providing for the child to live with the mother and spend alternate weekends and each Thursday evening with the father. An Independent Children’s Lawyer was also appointed. The child returned to his mother’s care.
On 23 June 2011, orders were made by Federal Magistrate Harman by consent to assist the parties to behave appropriately towards the other at changeovers and to attend an appropriate post separation parenting program.
On 2 November 2011, Federal Magistrate Henderson made orders that this matter be transferred to this Court.
In November 2011, the father and Ms K separated.
On 6 December 2011, orders were made by consent that Dr N be appointed as a single expert witness and that he prepare a report for the purpose of these proceedings.
On 30 March 2012, the expert report prepared by Dr N was released to the parties.
Applications
The father seeks orders to the following effect:
·That both parents be responsible for the long term care, welfare and development of the child;
·That the child reside with his father as follows:
(a)On an alternate weekly basis from the conclusion of school on Monday until commencement of school on the following Monday extending to 5:00 pm Monday if a public holiday or pupil free day;
(b)Half of each gazetted New South Wales school holiday period as agreed and failing agreement for the first half in even numbered years and the second half in odd numbered years;
(c)Special days comprising Father’s Day, the child’s birthday, the father’s birthday and 25 July each year;
(d)Telephone communication each day that the child is not otherwise in his care between 7:00 pm and 7:30 pm; and
·That the child reside with his mother at all other times;
·That the mother have telephone communication with the child each day when he is not in her care;
·An injunction to restrain the mother from changing the child’s school without the father’s consent;
· Non-denigration orders; and
· Various other orders of a machinery nature.
On the other hand the mother seeks orders to the following effect:
·That she have sole responsibility for the child;
·That the child lives with her;
·That the child spends time with his father on alternate weekends from conclusion of school Friday until commencement of school Monday, as well as during one half of each school holiday period;
·That the father be at liberty to telephone the child at a specified time twice each week to be nominated by him; and
·That the father be restrained from consuming illicit substances while the child is in his care.
The Independent Child Lawyer (“ICL”) seeks orders to the following effect:
·That the parties have the equal shared parental responsibility for the child subject to the following:
(a)That in the event that the parents are unable to jointly make a decision about the child’s long term care, welfare or development then the mother shall make the final decision;
·That the child live with his mother;
·That the child spend time with his father
i.In each alternate week from conclusion of school Thursday to commencement of school on the following Monday;
ii.In the intervening week from the conclusion of school Thursday to the commencement of school the following day;
·Half of each New South Wales school holiday period as agreed between the parties and failing agreement for the first half in even numbered years and the second half in odd numbered years;
·On Father’s Day from 9 am to 6 pm;
·That each parent shall telephone the child between 7 pm and 7.30 pm each Monday, Wednesday and Saturday when the child is not in their care respectively;
·That the child’s time with his father shall be suspended from 9 am to 6 pm on Mother’s Day if he is not otherwise spending time with her and for half of each New South Wales school holiday period as agreed between the parties and failing agreement for the first half in odd numbered years and the second half in even numbered years; and
·That there be mutual non-denigration orders.
Issues
It was agreed that the issues in the case are as follows:
1.Whether shared parental responsibility is to be disturbed;
2.The amount of time spent between the child and his father
Credit
The father
The mother informed Dr N that the father had been involved in several road rage incidents. Dr N said that the father admitted to one such incident. Yet it is clear from the husband’s criminal record that he was convicted of two offences of driving a motor vehicle in a manner that menaces others.
The father was generally responsive in giving answers to questions in cross-examination about the mother. But he appeared to take every opportunity to offer criticism about the mother.
The mother
The mother was fairly straightforward in her responses. At times she appeared to find it difficult to make concessions which was probably a reflection of her very poor relationship with the father. Generally I regarded the mother as a reliable witness.
The Applicable Law
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of children are met by:
·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
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·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
·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
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.
Parental Responsibility
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility for him. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for his parents to have equal shared parental responsibility for him.
I shall consider the matters relevant to the child’s best interests then return to consider the question of parental responsibility.
Section 60CC Considerations
How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.
Primary Considerations
The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying these considerations the Court is required to give greater weight to the latter.
Having noted these primary considerations at this point I shall return to discuss these below.
Additional Considerations – s 60CC(3)
Sub-section 60CC(3)(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 informed Dr N that he wanted to have either most of his time with his father or preferably equal time. When Dr N asked the child why he wanted equal time he said “so things to be fair”.
Dr N said that he thought the child was particularly concerned to try to maintain as much contact with his father as possible, partly because he has a genuinely good time with his father and partly because he feels responsible for his father.
He said that in particular, the child was concerned about the emotional response his father might experience should the child not end up spending time with his father. Dr N said that the child’s wishes appear to be affected by a desire to protect his father from attachment loss if the child was not there.
Dr N also thought that the child’s immaturity and inability to handle the psychological pressure placed on him by his father accounted for much of the child’s stated wishes.
He also said that the child’s expressed wishes were also a function of him trying to bring about peace with his parents.
Dr N said that the wishes of a 12 year old child would carry weight in normal circumstances but he said that these were not normal circumstances.
Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
Dr N said that there is no doubt that the child genuinely enjoys a good relationship with both of his parents, the difficulty being that there is a poisonous relationship between them.
In relation to the child’s relationship with his mother, at the assessment Dr N observed a lot of good responsive behaviour between the child and his mother. He said the mother appeared to be emotionally warm during their interaction. Dr N said that the child’s responses to his mother were at all times respectful and emotionally warm. He thought that there were no obvious problems in their relationship.
Dr N said that there did not appear to be any reason to assume that particular difficulty existed between Mr J and the child. Dr N said that when he asked the child about Mr J and the allegations that had been made by his father (that Mr J had threatened to stab him with a fork) the child said “[Mr J] is like normal”.
The mother said that the child and F have a very close relationship and that the child is kind and very gentle with his young sister G.
B told Dr N that he likes F but said “F is like always in my face”. Dr N thought that it appeared that there was some sibling rivalry occurring between F and the child.
Turning to the relationship between the child and his father, I note that the father informed Dr N that the child had only ever been in his primary care briefly. Dr N noted that the father had regarded himself as the child’s primary carer when the child was young. Dr N inferred that this would have been difficult in circumstances in which the father was at work most of the day and complained that when he returned home after work, the mother nagged him about his desire to relax after work rather than involving himself with the child. The father took exception to this observation by Dr N. He said that he had been the child’s primary carer, including from 2002 until November 2003 which was a time when he was not working because he had a broken femur.
Dr N said that he thought that the father was focused on the child and that mostly the child had a pleasant engagement with his father. Dr N said that it appeared that the father had been seeking to encourage a dependent relationship between the child and himself, linking the child’s presence in his life with his own ongoing well-being and leaving the child with a sense that he holds responsibility for his father.
The mother to her credit, informed Dr N that the child loves his Dad and that there is no fear in their relationship.
The father said that the child and E have a strong relationship. I must say one would not doubt this because the boys have grown up together. They play a lot of backyard cricket together. The child did say, however, to Dr N that he had not seen much of E in recent times because E was always out training for football and the like.
Ms O, the child’s counsellor to whom he was referred by the general medical practitioner said that the child appeared to have a reasonable relationship with E, F and G.
Sub-section 60CC(3)(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
The father informed Dr N that he does not make trouble with the mother and does not try to interrupt her time with the child. He said that he always encourages the children to see their mother.
There was of course the difficulty in December 2010 / January 2011 when the father failed to return the child to his mother after the child made the allegation against Mr J. As indicated above, the child was not returned to the primary care of his mother until orders were made by the Federal Magistrates Court. However, it was the case that the child had made a false allegation. So the father cannot reasonably be criticised for taking the allegation seriously.
It is also a matter for concern in my view, that E appears to have lost his relationship with his mother. When Dr N raised this with the father the father said that it was E’s choice but the father said that he had made it clear to E that he could spend time with his mother and that the father would not oppose that. Nevertheless, E did not see his mother and that there was nothing to suggest that the father had encouraged E to allow his mother to visit him. Dr N said that it now appeared that the father has a very poor relationship with the family of E’s mother.
Dr N said that the mother recognised that the child needs to see his father. Dr N said that the mother appears to be the more realistic and accommodating of the two parents. But she believes that she needs to protect the child by reducing his contact with his father, although apparently implicit in this was also a means of protecting herself from the father’s alleged harassment.
Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living
Dr N said that if the child’s time with his father was reduced the child would view this negatively. Dr N said that this would not only be because this would reduce the “fun” time he spends with his father but also because it would expose the child to concerns that he would be letting his father down or hurting him in some way.
Sub-section 60CC(3)(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.
This is not a relevant consideration.
Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and 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.
The mother conceded to Dr N that she is impatient and that she yells. Dr N said that at the interview the mother reported no sustained periods of depression despite her frequent episodes of low mood. She has never had to be hospitalised for any mental health concern.
Dr N said that the mother presented as a child-focused woman who reported having experienced significant abuse and denigration at the hands of the father. Dr N said that the mother sees in the father’s current behaviour a continuation of his mean-spirited and vengeful manner.
Dr N thought that the mother would be able to provide the child with a more stable home than would the father and a place where there would be appropriate rules.
Turning to the father’s capacity, Dr N said that the child had told him that his father helped him with things in the holidays and had started helping play Lego by finding new parts. Dr N thought from the child’s perspective that the child had a pretty good time with his father.
But Dr N was also concerned that the father failed to maintain a parental boundary in favour of giving the child a good time and “enlisting him as his champion”.
Dr N said that the father presented as an intense and fiery person who had an almost hypermanic quality to some of his behaviour. He thought that the intense energy which the father displayed and impulsive behaviours reported of him probably related to the father’s still active attention deficit disorder. Dr N said that there was no evidence of mood disturbance although the father had been treated for depression on two occasions.
Dr N described the father as an aggressive and dominant man who aligns his children’s’ interests with his own image of self as a wonderful father and pursues this image over the needs of his children.
Dr N said that the father asserted that his own needs were not as important as the children’s needs yet at the interview the father did not appear to be able to distinguish between his own need to be with the children and the pleasure the children obtain from that. Dr N said that outside of this paternal relationship their needs were not clearly identified by the father.
The father informed Dr N that he did not involve himself much in school activities, particularly with E, but he became involved in coaching the school football team because the teachers asked him to do so.
Sub-section 60CC(3)(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.
These matters have been considered and commented on elsewhere in these Reasons.
Sub-section 60CC(3)(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;
This is not a relevant consideration in this case.
Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
Dr N said that one of the things that stood out about the father was the extreme focus he had on his children. Dr N said that he thinks the father has a deep and meaningful focus on wanting to be closely involved with his children’s lives. He said that the father told him that he had always wanted to be a father and Dr N thought that there was a high level of psychological meaning for the father in pursuing the role of father.
He said that while the father can be domineering, he gained a sense that the father was quite interested in promoting the children’s interests.
On the other hand, as indicated above, Dr N said that the mother presented as a child focused person. Clearly she is very protective of her children.
Where each of the parents falls down in terms of their attitude to the child and to their responsibilities as parents is in their not being able to protect the child from their ongoing conflict and hostility.
Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;
Family violence has been a feature of this family although it has consisted of verbal abuse and argument between the parents.
The child informed Dr N that his parents were always yelling about or at each other, or yelling about where he was living and so on. The child felt that he was the meat in the sandwich between his parents.
The mother asserted to Dr N that the father was a person who would typically “fire up very quickly”. The mother also asserted to Dr N that the father engaged in psychological and emotional bullying and intimidation towards her.
There is other evidence to support the mother’s assertions. I note that in March 2012 the father telephoned the Westmead Children’s Medical Centre and spoke to the receptionist about E. During the course of the conversation the father became enraged and was swearing at the receptionist. The receptionist hung up but the father rang back five times and left voice messages. The receptionist’s supervisor called the police and they attended. The police recorded that a large amount of offensive language was used by the father.
In addition, as indicated above, the father has two convictions for what might generally be described as “road rage” offences. The father has endeavoured to minimise these offences and their seriousness. These matters support the mother’s assertion that the father has a difficulty with anger control.
Dr N said that although each parent gave him the impression that they regarded themselves to be restrained, and regarded the other parent as being unrestrained, it appeared that the child regarded the conflict as being mutual between his parents. He told Dr N that his mother yelled a lot and that he does not like it. He also said that sometimes Mr J might yell at him but that he got on pretty well with Mr J. He also said that nothing scared or bothered him.
In 2009 the mother was charged with assault following a complaint by the father. The mother said that the father was yelling at her and threatening her and that she put her hand up to protect herself but accidentally knocked the father’s hat off. The father said that the mother punched him in the face. The mother said that she was arrested and incarcerated briefly but that she was not convicted of assault but rather a six month Apprehended Violence Order was made against her for the protection of the father.
As indicated above, there was an incident which caused real difficulty, that incident being on 12 December 2010. On that occasion the father and the child were visiting the father’s sister for a family lunch. The child became upset and was crying. After some discussion initially with his father and then subsequently with Ms K, the child indicated that he did not want to return to his mother’s home because Mr J hated him and threatened him. He said that Mr J got a fork and threatened to fork him, apparently meaning stab him with a fork and that Mr J had hit him.
The father then took the child to the police and ultimately there was an investigation by the Joint Investigative Response Team. During the course of this investigation, the child withdrew his allegation and it emerged that he made up the allegations against Mr J because on that occasion he wanted to remain at his father’s home, apparently because he was enjoying his time there with the other children.
Dr N made the observation about this incident that it was most unfortunate because it allowed simmering conflict between the parents to erupt into further litigation in the Court. With respect, I agree with this observation by Dr N. Dr N also said that the incident also demonstrated that the child was capable of using manipulation as a means to find a way to spend more time with his father.
As indicated above, the incident was serious because it had a profound effect on the parenting arrangements. Whereas the child was meant to be living primarily with his mother in accordance with earlier orders, after 12 December 2010 his father refused to return the child to his mother’s care with the consequence that in fact the child did not go back into his mother’s care until orders were made to this effect on 28 February 2011.
Sub-section 60CC(3)(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;
As indicated above, there had been an Apprehended Violence Order made against the mother for a six month period but this expired a long time ago.
There is a current Apprehended Violence Order in favour of the mother against the father made by the Local Court at Blacktown on 13 March 2012 for a period of 12 months. The father has been charged with a breach of this Apprehended Violence Order apparently as a consequence of sending text messages to the mother in May 2012. The police Facts Sheet records the police as regarding the alleged breach as being of a minor nature.
Sub-section 60CC(3)(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 mother informed Dr N that she regarded the father as a “serial court person” who liked putting her through court and liked to argue about everything.
These parties have been litigating about the parenting arrangements for the child now over a long period. And it might well be that litigation between them will continue. It is to be hoped however, that having had opportunity to ventilate relevant matters during the course of the hearing, that neither parent would feel compelled to endeavour to embark on further litigation. In any event, there is no particular order which occurs to me would be less likely to lead to the institution of further proceedings in relation to the child.
Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
Dr N said that the strong bond between the child and his father was not an easy one. He said that this was because it was filled in part by manipulative behaviours by the father to make the child responsible for his father’s well-being. Dr N said that accordingly, in his view, the child is thus exposed to psychological and emotional abuse.
Submissions
The Independent Child Lawyer
The submissions by counsel for the ICL were as follows.
In relation to parental responsibility it was submitted that by and large the parents had been able to grapple with making major decisions about the child’s welfare. However, given the general level of ongoing conflict between them it would make sense to provide for one of them to make the decision in the event that they were unable to agree. It was submitted that the mother should have this responsibility.
It was submitted that Dr N (at Report paragraph 129) described the mother as the more accommodating of the child’s parents and described the father as aligning his children’s interests with his own image of self as a wonderful father and that he pursued that image over the needs of the children (Report paragraph 130).
Dr N considered the mother as being the better parent. He described the child as feeling responsible for his parents and was concerned that the child had taken on somewhat of an emotional carer’s role. He said that the father was unable to draw appropriate boundaries for the child. Dr N referred to what he described as a switch of emotional dependency. That was that instead of the child being emotionally dependent on his father there would be a switch and, at least to an extent, the father became emotionally dependent on the child. Dr N considered this as not good for the child’s well-being so that one could infer that in this regard the child was at some psychological risk in the care of his father.
Counsel for the ICL submitted that the orders proposed by the ICL would balance the desirability of providing the child as much time as possible commensurate with his needs with his father, yet on the other hand not so much time that he would be exposed to this sort of risk and the other concerns which Dr N has raised.
It was clear that each parent was very critical of the other and that each of them had been unable to protect the child from the negative view that they had of the other. Dr N noted this at paragraph 62 of his Report where he had a personal experience of what he described as the father being very easily aroused and very ready to be critical of the mother. During the course of cross-examination it became clear that the father could not restrain himself from being critical of the mother and he was unable to concede that she was a good mother. A similar criticism can be directed to the mother. She found it difficult to make any concessions about the father although when faced with no alternative during the hearing she did so. The mother’s behaviour in speaking with the father’s former partners Ms P and Ms K and becoming aligned with them against their common adversary in the father, was unhelpful for the child. This was because it would be obvious to the child that they were very critical of his father.
It was submitted that the father has developed some insight into some of his parenting deficiencies. For example he has undertaken an anger management course and he has been attentive to the need for management of his somewhat depressive and anxious behaviour by being compliant with taking anti-depressive medication which he indicated has been most helpful.
It was submitted that the orders sought would balance the primary considerations set out in s 60CC(2) in determining what would be in the child’s best interests. These were on the one hand the benefit to the child of having a meaningful relationship with each of his parents but on the other hand taking care not to expose him to an unacceptable risk of physical or psychological harm.
In relation to the child’s expressed views it was the case that he did inform Dr N that he wanted things to be fair and Dr N said that this was quite usual for a boy of his age. However the Court should be cautious about the extent to which it gave weight to such views because they should not be the defining factor.
In relation to the capacity of each of the parents, it was submitted that each of them suffers serious flaws in their parental capacity by reason of their inability to restrain themselves from continuing the conflict with the other.
The final submission by counsel for the ICL was that it would not be practicable for the child to spend equal time with his parents because of their inability to be able to co-parent him in a cooperative way and a way which would not involve ongoing conflict. Therefore, in these circumstances, the Court would put in place orders which would provide for the child to have substantial and significant time with each of his parents.
The father
It was submitted by counsel for the father that if the Court was to make an order for parental responsibility as sought by the ICL, in effect this would be providing the mother with sole parental responsibility. This was because, it was submitted, that the right to veto proposed in the ICL’s form of order would amount to the mother having all the say in respect of all such decisions.
It was submitted that there has been an order for equal shared parental responsibility in place now for many years and that the mother has not been able to point to one occasion when the parents had been unable to make appropriate decisions for the child. Accordingly, there was a strong submission for preservation of the parents’ enjoyment of equal shared parental responsibility for the child.
An example of the parents having been able to manage major issues for the child lay in the fact that when there was a concern that the child might have contracted meningococcal disease the parents had been able to cooperate in the father eventually taking him to the medical centre at which the doctors diagnosed him as suffering from a skin ailment. Another example of cooperation was that they had been able to agree on the child’s High School next year, although the mother’s evidence suggested that this was not entirely free of conflict.
Reference was made to Dr N having described the father as having a possessive or proprietorial interest in his children such that he tended to align his children’s interests with his own image of self as a wonderful father, and pursued this image over the needs of his children. It was submitted that the evidence did not support such a view. In this regard it was submitted that the father acceded to the child’s wish to spend what became six weekends in a row with his mother. Three of those were her normal weekends but the other three were occasions on which the child had expressed to his father a wish to be with his mother for specific occasions and events. One was Mother’s Day and another was to enable the child to attend the Q Town Show. It was submitted that this demonstrated that the father was in fact not proprietorial about the child but was in fact child-focused and indicating respect for the child’s wishes.
It was submitted that the mother uses the child as a baby-sitter for his younger brother F and that she has not put in place an appropriate arrangement for the children when they return home from school at least for some of the nights a week. This is because she is working and not available to care for them. Although she has arranged for a neighbour to call in and check that the children were alright, it was submitted that this reflected poorly on her parenting capacity.
It was submitted that it was not only the father who has some parenting flaws but also the mother has such flaws.
It was submitted that the Court would be cautious about accepting at face value all that was in the Report. This was for the reason that Dr N indicated that the child quite genuinely had a concern about what his parents might read in the Report. Reference was made to the mother having informed Dr N (at Report paragraph 58) that the child keeps a lot “locked up” because he knows he has to. So it was submitted that the Report to some extent was coloured by this and therefore it was difficult to know the extent to which the child has spoken his mind to Dr N. It was submitted that both parents clearly love the child and that each of them has a lot to offer him.
It was submitted that the criticisms of the father by Dr N fall short of justifying a removal from the father of parental responsibility. It was submitted that at a practical level, there might not be many more occasions when major decisions have to be made about the child’s welfare. This was on the basis that, as indicated above, the parents have already chosen his school for next year and that in relation to his medical treatment both the parents and the child have the same general medical practitioner. The effect of this would be likely to be that the doctor would be making the same recommendation about the child’s medical treatment to each of the parents.
Finally it was submitted that not only has the father attended an anger management course and complied with medication to manage the conditions referred to above, but he also indicated that he has learned to walk away from conflict with the mother. An example of minimising the opportunity for conflict was the fact that despite his love for rugby league he has stayed away from the child’s rugby training in order to remove opportunity for him to come into contact with the child’s mother.
So far as the child’s wishes are concerned it was submitted that as the child informed Dr N (see Report paragraph 9) he wanted to have either most of the time with dad or preferably equal time. When Dr N asked him why he wanted equal time he said “so things to be fair”.
The mother
The mother submitted that there were two main reasons why she would be opposed to the child living with each of his parents week about. The first was that such an arrangement would not minimise the opportunity for poor behaviour on the part of the father which she says must pose some emotional and psychological risk for the child. She submitted that he has behaved very poorly towards her and that he has otherwise behaved poorly in the community as demonstrated by his criminal record.
The mother pointed to paragraph 130 of Dr N’s Report where the father was described as presenting as an intense and fiery person who has an almost hypermanic quality to some of his behaviour. The mother also pointed to Dr N as having said that the child was exposed to a level of psychological and emotional abuse in his father’s care. He said that this was because the bond between the child and his father was fuelled in part by manipulative behaviours by the father to make the child responsible for his father’s well-being.
It was submitted that this was the matter which caused the mother greatest concern.
Conclusion
Parental responsibility
I am not persuaded that it is in the child’s best interests to remove from his father equal shared parental responsibility for the child. Generally I accept the submissions on behalf of the father about this matter. It is true that there have been difficulties between the parents in making major decisions about the child. However as counsel for the father submitted, the parents have been able to grapple with the decisions about the child’s school and his medical treatment and the mother conceded that there has not been an occasion where a serious matter has not been able to be resolved.
In these circumstances, in my view, there is no case for disturbing the presumption that it is in the child’s best interests for his parents to continue to have shared parental responsibility for him.
Best interests
In relation to the parenting arrangements which would best serve the child’s interests, in my view, as was submitted by counsel for the ICL, the Court should be guarded about how much weight to place on the child’s expressed wishes for the reasons indicated by Dr N. Clearly he wants to spend more time with his father.
I am not persuaded that the child’s best interests would be served by the week about residential arrangement sought on behalf of the father. In my view these parents do not have anything like the level of cooperation and common parenting styles which would give the Court confidence that such an arrangement would be in the best interests of the child.
Each of them has expressed a level of disappointment and frustration that they have not been able to protect the child from ongoing conflict between them. The mother has said that she has endeavoured to reduce opportunity for conflict by not communicating with the father other than by text messages. She has also endeavoured to deliver required items of uniform or sporting equipment on occasions of the child’s sports training to the school in order to avoid delivery at the father’s residence. She indicated that she would like very much to find other means of minimising conflict. But this expressed desire has not in any significant sense translated into much reduction in the chronic, damaging conflict which has now been going on for most of the child’s life.
On the other hand the father, too, has expressed a wish that the conflict between the parents could be curtailed. He said that in order to endeavour to address this he has attended an anger management course. As indicated above, he said that he has stayed away from the child’s football training, that he complies with his prescribed medication and that he has learned to walk away from situations similar to those which in his experience have caused conflict and distress.
I must say, despite these expressed endeavours by the parties, just looking at the relevant evidence about conflict objectively, this Court could have little confidence that the conflict would not continue. And there can be no question that it would be to the detriment of the child as it has been to date.
Dr N thought that it would be good for the child to have a more settled routine than would be involved in week about arrangements, particularly as he moves into high school. I accept this.
Because equal time is not in the best interests of the child, or reasonably practical, as indicated above, s 65DAA(2) of the Act requires the Court to consider whether the child spend substantial and significant time with each of his parents would be in his best interests and would be reasonably practicable.
The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act. In effect this means that a child will be taken to spend substantial and significant time with a parent only if:
·The time the child spends with the parent includes both:
-days that fall on weekends and holidays;
-days that do not fall on weekends or holidays; and
·The time the child spends with the parent allows the parent to be involved in:
-the child’s daily routine; and
-occasions and events that are of particular significance to the child; and
·The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
I accept Dr N’ opinion that the mother is the more capable parent, that she is child-focused, that she has been able to set appropriate boundaries for the child and to put in place appropriate disciplines for him. On the other hand Dr N said that the father offers the child a great deal.
As indicated above, he said that the father has a “deep and meaningful focus” on wanting to be involved in his children’s lives and was quite interested in promoting the children’s interests. It is very clear that he wishes to continue to have a meaningful relationship with the child.
In my view, opportunity for this needs to be balanced with a caution not to expose the child to risk of psychological harm.
In this regard, in my view, what is proposed by the ICL strikes an appropriate balance. This is that it would be in the child’s best interests to spend substantial and significant time with his father. This would be by an expanded alternate weekend from Thursday after school to the following Monday before school and, in the intervening week from after school Thursday until before school the following day, as well as half of each of the school holiday periods and special days.
So far as telephone communication is concerned, the father is desirous of continuing his practice of telephoning the child each evening. The mother said that this is disruptive and that on evenings of football training the child postpones eating his evening meal while waiting for his father’s telephone call. The mother said that she has never stood in the way of the child being able to telephone his father and that her commitment in this regard would continue.
The ICL submitted that three occasions a week for telephonic communication would be adequate and I agree with that submission.
I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 9 November 2012.
Associate:
Date: 9 November 2012
Key Legal Topics
Areas of Law
-
Family Law
-
Statutory Interpretation
Legal Concepts
-
Procedural Fairness
-
Consent
0