Shovruk & Shovruk
[2022] FedCFamC2F 456
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shovruk & Shovruk [2022] FedCFamC2F 456
File number(s): DGC 3783 of 2019 Judgment of: JUDGE BURCHARDT Date of judgment: 13 April 2022 Catchwords: FAMILY LAW – Parenting dispute about 4 year old boy – child always living in primary care of the mother – father seeking equal time immediately and eventually three quarters of the time with him – extant time regime of time each Wednesday and alternate weekends – mother asserting constant tensions at changeover arising from father’s late return of the child – father filming or recording some changeovers – both parents strong-willed and self-centred – family report writer opposing removal of midweek time – Independent Children’s Lawyer and mother seeking weekend time only to remove problems at changeover – court accepting mother’s evidence – orders made as sought by the Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) Cases cited: Goode v Goode [2006] FamCA 1346 Division: Division 2 Family Law Number of paragraphs: 112 Date of hearing: 30-31 March 2022 Place: Dandenong Counsel for the Applicant: Ms Daly for the purposes of section 102NA of the Family Law Act 1975 The Applicant: The Applicant is self-represented Counsel for the Respondent: Ms Teicher Solicitor for the Respondent: Vernon Da Gama And Associates Counsel for the Independent Children's Lawyer: Ms Macgregor Advocate for the Independent Children's Lawyer: Macgregor Barristers and Solicitors ORDERS
DGC 3783 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SHOVRUK
Applicant
AND: MS SHOVRUK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
13 APRIL 2022
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
2.The child X born 2018 live with his mother.
3.The mother have the sole parental responsibility for X.
4.X spend time and communicate with his father as follows:
(a)From 3:30pm Friday until 8:30am Monday in each alternate week until he commences school.
(b)Upon X commencing school:
(i)From the conclusion of school on Friday until the commencement of school on Monday in each alternate week during school term.
(ii)In the year that X commences school, for one week in each school term holidays to commence at 3:30pm on the last day of school each term to conclude at 12 noon on the second Saturday of each school term.
(iii)If not otherwise scheduled, from 3:30pm on Friday until the commencement of school on Monday for the weekend that encompasses Father’s Day.
(iv)The father’s time be suspended from 3:30pm on the Friday prior to Mother’s Day until the commencement of school the following Monday.
(v)From 11:00am 25 December 2022 until 7:00pm 26 December 2022 and in each alternate year thereafter.
(vi)From 8:30am 24 December 2023 until 11:00am 25 December 2023 and each alternate year thereafter.
(vii)For two separate weeks during the long Summer vacation at times to be agreed, failing agreement, for one week from 10:00am 1 January until 10:00am 8 January and for one week commencing 10:00am 14 January until 10:00am 21 January.
(viii)At such other times as agreed to between the parties in writing.
(ix)That for the purposes of changeover, all changeovers occur either at X’s childcare centre, kindergarden or school. In the event that changeover cannot occur at these places, then a supervised changeover occur with an approved agreed paid supervisor to facilitate changeover, with the father to meet the expense of such supervised changeover.
5.Each year on the X’s birthday as agreed between both parties and in the absence of agreement;
(a)If the relevant birthday falls on a weekday, with the Mother from 3:30pm, or the conclusion of childcare/kindergarten/school until 6:30pm. If the child is with the Father that evening.
(b)If the relevant birthday falls on a weekday, with the Father from 3:30pm. If the child is residing with the Mother that evening.
(c)If the relevant birthday falls on a day during the weekend, with the Mother from 9:00am until 2:00pm if the child is residing with the Father that evening.
(d)If the relevant birthday falls on a day during the weekend with the Father from 9:00am until 2:00pm if the child is residing with the Mother that evening.
6.The father be in substantial and significant attendance during his time with X.
7.The Paternal Grandfather and Paternal Grandmother shall not be present at changeover.
8.The Father to ensure that the clothes worn by X at the commencement of all times are returned to the Mother at the conclusion of all times.
9.The Mother and Father to only communicate through the AppClose parenting application unless in the case of an emergency at which time the parties can communicate via telephone and/or text message.
10.All communication between the parties pursuant to Clause 9 above to be polite and child focussed.
11.The Mother and Father keep each other informed of their current residential address details, mobile phone numbers and email addresses and advise each other of any proposed changes to these details in writing no less than 14 days prior to any proposed change.
12.The Mother and Father notify each other of any serious medical injury, serious illness or hospital admission in respect of X as soon as possible after such injury occur and both parties be permitted to attend upon X and/or medical practitioner in relation to that injury.
13.Both parents and or their agents and all those who act on their behalf and through them, be restrained from:
(a)Denigrating or disparaging the other parent, to or in the hearing of X and causing an agent to do likewise;
(b)Discussing these proceedings with or in the hearing of X or causing an agent to do likewise;
(c)Committing family violence against the other including but not limited to harassing, intimidating or threatening the other parent, or allowing or instigating X to harass, intimidate or threaten the other parent or causing an agent to do likewise;
(d)Disclosing to X or allowing him to be disclosed the contents of court proceedings.
(e)Using X to pass on messages to either party;
(f)Exposing X to any form of family violence or allowing anyone else to do so
14.All extant applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shovruk & Shovruk has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is a parenting dispute about the best interests of a young boy, X, born 2018. The applicant father’s position has been somewhat nuanced from time to time, but as expressed at Court the father confirmed that he wants X to live primarily with him and spend ultimately no more than one-quarter of the time with the mother. The precise configuration of this regime was not clarified. At least on an interim basis he seeks an order for equal time.
The mother’s position is that the child should live with her and spend time with the father each Wednesday and alternate weekends, together with half school holidays when X commences school.
The Independent Children’s Lawyer’s position is that X should live with the mother and spend each alternate weekend with the father, together with half school holidays in due course. For the reasons that follow I propose to make the orders sought by the Independent Children’s Lawyer.
AGREED OR UNCONTROVERSIAL MATTERS
Both the parents are, it seems, of Country B extraction. The father was born in City C in 1985 and, according to what he told Mr D, came to Australia at a young age. The mother’s place of birth is not denoted so far as I can see anywhere in the materials, but she was born in 1992. The father lives with his parents in a large house in Suburb E. The mother lives part of the time in a unit in Suburb F but also spends substantial time with her own mother, who lives in Suburb G.
The parents married in 2012 after a short period of cohabitation and separated in 2019. They had previously lived, for about six months in 2018, with the paternal grandparents in Suburb E.
Following separation the father did not see the child for about a year and time only commenced through a contact centre following the father’s application in the Court. Presently the child spends a period of time each Wednesday with the father and each alternate weekend from Friday to Monday.
Both of the parents are closely interwoven, so to speak, with their parents. The father is obviously close to and has the unstinting support of his parents (his mother gave evidence and attended court with him). The mother appears also to have a very close relationship with her own mother who is a considerable support to her. She works four days a week and X is in child care/kindergarten for those days. The father has worked in transport and from what he has told the Court has recently established his own business.
The relationship between the parents has been strained since separation (and, of course, before that also) and the case is marked by multiple intervention orders taken out by the parents and the grandparents against the various parties.
THE AFFIDAVITS FILED
The parties have filed copious affidavits in this proceeding, many of which are, to a considerable extent, repetitive. Much of what they have to say is encapsulated in the agreed matters above. I note that the father’s first affidavit filed 14 November 2019 deposes to the falsity, as he puts it, in the assertions made which led to the making of an intervention order in favour of the wife against him on 27 February 2019, which was subsequently converted into a two year final order. His affidavit material is strongly critical of the mother, whom he accuses of being a hoarder, obsessive and otherwise an inadequate carer for the child.
The mother’s affidavit material is equally critical of the father. She asserts that he had no involvement with the care of X while they were together (something he vividly denies) and she attests to a failure on his part to obtain employment when she was fully supporting the family. The mother has alleged a number of assaults upon her by the father, all of which are denied. The mother deposes at length to the father’s failure to return the child to her on time, particularly on Wednesdays, and of course the husband’s affidavit material responds to that. I note that in his affidavit of 9 April 2021 at paragraph 140 the father deposes to a disagreement with a diagnosis made by a general practitioner engaged by the mother. I note that he ceased working for the government in February 2021. I also note the mother’s unchallenged assertion in her affidavit of 16 November 2021 at paragraph 34 where she deposes that the father abused her (and X’s) then GP, Dr H, to a point where Dr H refused to continue with them as patients.
The affidavit material also shows disagreements between the parents about various aspects of X’s care and development, including speech therapy and toilet training.
THE INDEPENDENT REPORTS – THE FAMILY REPORTS
I have read and had regard to the 11F report dated 30 July 2020. Unsurprisingly, it noted the mother’s allegations of violence and verbal abuse, noting a two year intervention order in place due to last until April 2021 and the father’s denials of any physical violence. He did say, “there was certainly mutual verbal altercations towards the end of the relationship”.
The report noted, “Both parents reported an improved relationship and improved communication. Neither reported there to be any difficulties at changeovers”.
The report recommended an increase in the father’s time with the child.
The family report of Ms J dated 15 October 2021 is, self-evidently, far more detailed. The report noted that the mother spends substantial time at the maternal grandmother’s house in Suburb G and that the father intended to relocate to that area (paragraphs 2-3). The report noted the extant regime of time with the father from Friday to Sunday in one week and each Tuesday from 8.15 am until 5.30 pm (paragraph 6). The report noted the father’s application for incremental increase to equal time (paragraph 17). The report noted that both parties were child focused but did at times appear to be focused on the conflict between the parties (paragraphs 30 and 40). The report noted that the mother was observed at times to be rigid and inflexible in her proposals and views (paragraph 30) and that she was proposing time from Friday to Monday in alternate weekends, together with Tuesdays after school until 5.30 (paragraph 32).
The report traversed the various intervention orders taken out, including cross intervention orders between the paternal grandmother and the mother.
The Court noted the father’s allegations that the mother had been obstructing the relationship with him and difficulties with getting X back fed and on time (paragraph 43). At paragraph 49 the report traversed the father’s criticisms of the mother’s care and development of X but noteworthily at paragraphs 52-53 both parties reported that the relationship between them had improved regarding both communication and co-parenting, although there had been a recent resurgence in parental acrimony.
Ms J was not clear if the parties had both engaged in a parenting orders program, but opined that this would be of benefit to them (paragraph 54). The report noted a report from the child care/kindergarten educator, Ms K, that there had been some delay in X’s speech and development, although recently it significantly improved (paragraph 57).
At paragraph 68, having noted that X had positive relationships with both his parents and with the paternal grandparents and maternal grandmother, the report went on to decisively reject the notion that shared care was appropriate (paragraph 68). Relevantly, the report stressed the importance of better communication between the parents. The report went on to recommend time on Wednesdays from 8.15 till 6.30 and Friday to Monday in the alternate week, together with half school holidays when X commences school in 2024.
THE REPORTS OF THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING
The first report dated 29 January 2020 notes allegations of violence and their denial but does not, in my view, take the matter further. It has been overtaken by the march of events.
The second reported dated 16 November 2021 goes into more detail. It notes an investigation and assessment between 28 November 2020 and 23 February 2021. A report was received raising concerns for X’s health, safety and wellbeing in the care of the mother due to environmental neglect. The report stated:
It was reported that all parts of [Ms Shovruk]’s home were very cluttered, one bedroom could not be ac on of belongings and that there were healthcare products and other items dispersed throughout [X]’s bedroom. Further concerns were reported about [Ms Shovruk] not providing [X] with adequate food and with primarily junk food.
The report also noted:
On 24 December 2020, further concerns were reported regarding [Ms Shovruk]’s home environment, including a full garage, food supplies on the floor and squashed potatoes and tomatoes running down the driveway.
On 30 December 2020, a follow up call was made to the reporter, during which concerns were raised regarding [X]’s health and development, including a speech delay, which [Ms Shovruk] had not taken steps to address, [Ms Shovruk]’s parenting capacity and [Ms Shovruk]’s mental health.
The matter was subject to investigation. The mother provided information relevantly that X had had treatment on his ears and a hearing test and that he had been tested for autism spectrum disorder without a diagnosis but was seeing a speech pathologist at the L Centre. Several small bruises were assessed as being unremarkable. For these purposes, the most significant part is the observations of the home environment as follows:
The two-bedroom unit was observed to be quite cluttered, as [Ms Shovruk] had moved into her mother’s home. The lounge room had many toys and children’s development aids such as blocks, wooden jigsaws, and books. Despite the clutter, the home was observed to be hygienic. The clutter in the home was deemed as appropriate in the context of a temporary house relocation and did not pose a risk to [X]. Fresh vegetables were observed in the kitchen.
The report went on to note the father’s complaints that X was dressed in age inappropriate clothing which was often too small, the mother’s home not being clean and the speech delay being a result of the mother’s lack of engagement with X. The report noted that the paternal grandparents doted on X.
The report noted follow up with Ms M, X’s speech pathologist, who advised she held no significant concerns for him. Under the heading Outcome the report noted relevantly for these purposes:
It was assessed by Child Protection that [X] was not at risk of significant harm in the care of either parent. [Ms Shovruk] presented as protective and appropriate in her actions and interactions towards [X]. [Ms Shovruk] was well supported by professional services and her extended family and was noted as providing exceptional care and being in tune with [X]’s needs.
[X] was observed eating nutritious foods in the care of both parents and was engaging, happy an active in both family homes.
Both parents spent much of the investigation making allegations regarding the other person's parenting capacity or communication. The information gathered and observations made by Child Protection did not indicate [X] was at risk of significant harm in either parent’s care, or in need of Child Protection intervention.
The investigation was closed accordingly.
THE REPORTS OF MR D
Mr D’s reports are annexed to his affidavit filed on 29 March 2022. Obviously I have regard to the entirety of the reports but note in particular the following. At paragraph 3.1.3 Mr D opined:
[Mr Shovruk]’s pattern of responses indicates that positive impression management is an area of concern. The test data suggest that he tends to present himself in a consistently favourable light, and as being relatively free of common shortcomings to which most individuals will admit. He appears somewhat reluctant to acknowledge personal limitations and will tend to repress or deny distress or other internal consequences that might arise from such limitations. This tendency will likely lead him to minimize, or perhaps even be unaware of, problems or other areas where functioning might be less than optimal.
At paragraph 3.2.3 the report noted:
However, despite the level of defensiveness described in the previous section, there were some areas where [Mr Shovruk] described problems of greater intensity than is typical of even defensive respondents:
•grandiosity – [Mr Shovruk]’s MAN-G subscale score is slightly elevated. Positively, this often reflects optimism and an unwillingness to be hampered by one’s limitations. Such an individual is often seen as a driven type who is self-confident and who focuses on strategies for success or achievement. Others, however, may view such a person as self-centred and narcissistic;
The report also noted in a further dot point relevantly:
•an ARD-O subscale score towards the higher end of the normal range such as [Mr Shovruk]’s is indicative as somebody who is seen as ruminative, detail-oriented, and somewhat rigid in attitudes and behaviour.
At paragraph 3.4.1 the report stated:
[Mr Shovruk]’s seems best characterized as self-assured, confident, and dominant. Although not unfriendly, he is likely to be described by others as ambitious and having a leader-like demeanor.
At paragraph 5.1-5.2 Mr D opined:
[Mr Shovruk] does not have a major mental illness nor a personality disorder.
By his account, he has experienced what were probably episodes of Generalised Anxiety Disorder at significant periods of developmental stress in his life. I think he showed good insight into this and a resilient approach to how he will manage stress into the future.
At paragraph 5.3:
[Mr Shovruk] reports certain personality characteristics that may lead others to consider him as self-centred and rigid, and yet inconsistent, and he would be well advised to consider this in his interactions with others, especially in his attempts to understand differing perspectives and to seek principled outcomes.
In his report on the mother Mr D noted at 3.1.5:
Given the high level of defensiveness, the clinical scale profile is likely to reflect significant distortion and minimization of difficulties in certain areas. My sense after interview was that [Ms Shovruk]’s level of suspicion and distrust might be significantly higher than test scores indicated, not necessarily reflective of any psychopathology, but circumstantial in the current litigious context.
The report went on to observe at paragraphs 5.1 and 5.2:
[Ms Shovruk] does not have a major mental health problem nor a personality disorder.
Her levels of defensiveness, suspicion and distrust are currently elevated and combined with the other personality features mentioned at §3.1.6 above may make negotiation and collaborative decision-making difficult for her.
THE SUBMISSIONS MADE AND EVIDENCE GIVEN AT COURT
The Opening and Evidence of the Father
What follows is taken from my notes.
Mr Shovruk was self-represented but had the assistance of Counsel for cross‑examination pursuant to section 102NA of the Family Law Act. As things transpired, Counsel, to her credit, went further and made submissions on Mr Shovruk’s behalf, although the father also made closing submissions to which it will be necessary to return.
In his opening, the father said that in the short term he wants equal time for about one or more years, moving in the medium term to two-thirds of the time and then by three years the child spend three-quarters of all time with him. He did not indicate with any greater precision how this would actually play out in terms of specific times. He said he has a special relationship with the child. He was reintroduced in March 2020 after over one year apart and from the start it was a very good relationship, and very trusting. X is a great kid and benefits from time with him and his family. Trust was built very quickly and he wants as much time with him as he can get. He referred to X being part of the new family he will have. He was sworn and adopted his affidavits as true and correct.
Under cross-examination by Counsel for the mother he was asked about his assertion he would have a new family and children. He confirmed that he has no partner at the present time. When asked how he could be so sure he was going to have a new family with children he said, “It’s what I know will happen”.
The father confirmed that he has a difficult relationship with the mother. They do not see eye to eye. When it was put that they do not talk to each other he said they talk sometimes. It was put that they rarely talk at changeover and he said that the interchange was not lengthy. He does not say hi.
Counsel put it that he has harassed the mother by videoing changeover in March but he said he did not call it harassment. He conceded that he had filmed the changeover on 16 March 2022. X was asleep in the car. When it was put to him that he was very rarely on time he said there were occasions when he was late. When it was put that he was late more often than not he said this was accurate at the end of time. He was usually a few minutes late. Counsel put it that it was half an hour to an hour, but he said this was incorrect. He agreed that on 16 March, being a Wednesday, he should have returned X at 6.30 pm. Counsel put it that he arrived at 6.50 but he said it was more like quarter to 7. The mother walked towards his car and he had a telephone in his hand which he put close to her face. She had reached for X and he had put his phone to show his watch. The mother asked him to take X out of the car but he denied refusing to do so. He said there had been no such request.
He agreed that the mother had carried X to her car and that he recorded this. She had made remarks suggesting she was not comfortable with this, but he continued to record. He confirmed that there is a current intervention order but when it was put that this conduct was a breach of the intervention order he said it was not so according to the police. He denied being charged with a breach of the intervention order. He said he had a good reason to film. Throughout January X has woken up towards the end of time. He becomes distressed. He has to record because of police involvement. X sleeps in the afternoon. He agreed that the family consultant had told him to allow X to sleep during the day. He prefers him to sleep. He tries to wind things down. He agreed that he had made audio recordings of changeover. This was because he had been called out numerous times over false accusations of breaching the intervention order. He said he was late on occasions because of peak hour traffic on N Street.
Counsel put it that he could simply leave earlier. The father said this was not so straightforward. It depends on what happens during the day. His mother is feeding X in the back of the car. They spend a long time feeding him. It can take up to one and a half hours to feed him. He had read the paediatrician’s report which said there should be a focus on toilet training. He agreed it would help if there were better communications between the parents.
X needs help with his speech. He agreed he had not told the mother he had read the paediatrician’s report. The conversations are just not flowing. He had not written back to the mother. He denied never having taken X to speech therapy. He had taken X himself to Ms M. He agreed that he had received the speech therapist’s reports. He also agreed that he did not acknowledge receipt of the emails. He said, “We are just not at that level of cooperation”. He said that nothing he reads is ground-breaking for him. He sees it himself. He has obtained phonics books. He said he had communicated with the mother about Ms M. When asked why he had not put this in his affidavits he said he does not put everything into his affidavits. He was critical of the speech therapist because she was young. He said he might take X to his own speech therapist. He was aware that there was a new speech pathologist called Ms O but he had not acknowledged this to the mother.
Cross-examination then went to the issue of the seats in which X is transported. I do not propose to traverse this because, as I pointed out at the time, there is no expert evidence before the Court as to which parent’s form of seating (if either) may or may not be dangerous and I am simply not in a position to deal with this. What I do note is that the father conceded he had reported the mother to the Department of Fairness, Families and Housing because of his assertions that the transport was unsafe.
Cross-examination then turned to X’s birthday in 2022. Counsel put it that the mother had messaged him and he had not responded. The father said he had asked for time on the Wednesday added on so that he could invite family members and friends. He had sought more time by message. The mother said the time should be on the birthday. He did not see his son on his birthday. He had not told the mother that he was not going to pick X up. He does not want to be looking at the clock on his birthday. He had missed three birthdays. It would have been just himself on the birthday. X got his presents the following day. The mother had been greatly inflexible and this was quite sad. He conceded, however, that the orders about birthdays were made by consent. He said he found it personally insulting having missed the first three birthdays with him when he should have had two hours.
Cross-examination turned to the question of X’s sporting lessons. He agreed that the mother had arranged for lessons each Sunday at P Sports Centre. He lives in Suburb E and the mother had asked him to take X to these classes. When it was put that he had told her it was too far he said it was correct to an extent but eventually conceded that he had not taken X. He does not like to disturb X’s sleep.
The father was cross-examined about his employment and he said that he owns and operates his own business. At the moment things are a little quiet. He has transitioned to being self-employed and the signs are good. Counsel put it that he does not pay child support. He said that he had not paid child support for a while. It does not make sense to him. It is their assessment. He had overpaid previously. When it was put that he had never offered to assist the mother financially he said he had. Counsel put it that she had asked for help with the costs of X’s ear surgery and he admitted that he refused to pay. He said he regretted not having contributed. Things were going on. He had been called up to the police on false allegations. He had asked himself, should I be helping this person.
He said the mother received ample care for food. The meat he buys costs $80 kg. He returns X with food in bags. This probably last took place in mid 2020. She had been given shoes and clothes. He had given her clothes from Europe. When it was put that this was not in his affidavits he said sometimes he asked for it back. He criticises the shoes the mother puts on X which are too small and not breathable. He criticises the clothing she puts on him.
Counsel put it that X is a small child and he said height-wise, yes. He has been small by weight but this has improved. He said he did not deny the mother was trying. He does speak up when he sees shorts and a nappy almost cutting into his skin. He is underdressed. He thinks there is margin for improvement. When asked if he still used the app that the parties were supposed to be communicating through he said he still uses it but tries not to. The app is an opportunity to denigrate, humiliate and to control him. If he cannot get movement, it makes him sick.
Following lunch, cross-examination continued and the father said he had undertaken the various programs that had been ordered in November 2021. He had recently finished a course at Q Service and before that he had been with S Service. He did not have the certificates with him (although he brought them the next morning). He had done a course in 2020. It was electronic and consisted of four sessions. His most recent course was six sessions and was focused on co-parenting.
When asked what he had learned in the first course he said he had learned to try and control his emotions and focus on the child. It was a bit more discussion based. Both courses were useful. It improves things with coping. Coping was just one aspect. He had learned to take an amended behaviour change course which opened up his mind a bit. When asked if he thought he was applying what the course told him, he said the course can only go so far if there is bad communication. There comes a limit. He would not say there is no hope for salvation. They just don’t see eye-to-eye.
Cross-examination traversed the issue of a religious divorce between the parties but this is not, in my view, of any significance. I note that it would appear that a person engaged by the father had written an email to the mother which, on my part, I found off putting and inappropriate.
The Father under Cross-Examination by the Independent Children’s Lawyer
Counsel asked if the father was still using the app and he said he was. He then said at the end of last year he ceased to do so but he has reinstalled it since. His decision to stop was in December 2020 but then there was a court order and he stopped emailing. He went back on to the app in September 2021. The app is fine.
He confirmed that he was not involved in the sporting lessons. When asked why not, he said he wanted a trial at P Sports Centre. It didn’t happen. He knew about it through Ms Shovruk. He believed it started at 9 am but he wanted to feed X breakfast. He would love to take him to sport but has made no inquiries yet. He is very prepared to take X to sport. When sport came up as an issue he had less time. He had things he wanted to do with X. Once the toilet training is behind them, there will be more by the way of activities.
Counsel put it that toilet training was an issue. He confirmed that X is not toilet trained. He is watching videos. He is not putting him in nappies. He puts him in nappies on return. He comes in a nappy which he takes off. On return, he puts him in a nappy. When asked if he knew what the paediatrician had suggested he said he had not spoken to the paediatrician. X has a constipation issue. He was taken to the doctor. When asked what communication he had had with the mother about toilet training it emerged there was none. He said that he had spoken to the creche about it at least once and they are fully aware of it. There is a support person there. Hopefully they are working on it.
He confirmed that the driving time on return is 20 to 25 minutes. X sometimes has a nap during the day. He tries to get him to bed in the early afternoon. When it was put to him that the RACV had advice about car seats, he said this was the first he had heard about it. When asked how he knew the booster seat was safe he said he had seen other kids and it seemed safe and it seems the right size.
Counsel asked how he thought communication with the mother could be improved. He said this was a good question. First, there has to be acceptance of the value he brings in X’s life and this should not be seen as time wasted. When it was put that time at kinder was not parent time, he agreed but said the time with him was also beneficial. He is happy for X to go to kinder but he needs to balance this with the time he spends with him. He will take him to school. They do puzzles and they read. He tries to put him down for a nap. He is building trains and he gets new books. Counsel put it that X’s birthday was something special. He said this was mostly with his parents. There was a cake and X had fun. For him it was a special day.
Counsel asked if he would follow the medical advice from doctors that the mother had engaged. He said X started off slow but is now sharp as a whip. When it was put that he did not agree that X had global developmental delay, he said he is my first child. I am no longer concerned. There is still some mumbling. He agreed that Ms M had been replaced as speech therapist by Ms O and he was happy with her. Ms O had suggested that they speak in short sentences to X and correct him. Asked again if he was happy to follow the professional advice of those the mother engaged, he said he takes issue with the GP. He was treating X and over medicating him. His cousin had taken a lot of medication and now has problems as a result. When asked if he would follow any antibiotic prescription he said yes but he would make inquiries. He might go to a second doctor. If he takes him to his own doctor it is a problem. The mother should take him in her own time.
When asked what happened at change over if his son was asleep, he said he allows the mother to open the door and take him out. He does not want to do it. He does not want to wake him up. He is often asleep on the way. When asked about food that he had allegedly given to the mother, he said there is now no food going to her. She has not wanted it. It was ready made food. He cannot understand why she did not want it. He then confirmed (given that his evidence, up to that point, had suggested this was food for the mother) that the food was for his child.
When asked if he had discussed schooling he said he had done research. He was inclined to Suburb R or Suburb T. He imagines moving to Suburb G sooner rather than later. When asked if the mother was in the zone for the schools he said he knew the mother wanted U School or V School. He had not looked at the websites of those schools. If X lives with him, he will go to school where he lives and probably R School. X will do other sports. He will take him during his own time.
When asked if there was anything he sought to clarify, the father said he would touch on one point which was change over time. He said that the mother was late on a weekly basis and this was not an issue but when he wanted to return him late it was.
The Evidence of Ms W
The paternal grandmother adopted her affidavit as true and correct. Under cross-examination by Counsel for the mother she confirmed that she was self-employed. She structures her work to care for X. She works every day except Wednesday and Sunday. The father picks up the child at 8.15 on Wednesday and they are usually together. They give him breakfast. Sometimes the father works but usually when X is asleep. She has not met her son’s friend from Country Y. She has an intervention order against the mother who has an intervention order against her. There were lots of problems at change over. The Independent Children’s Lawyer did not put any questions to the witness and there was no re-examination.
The Evidence of the Mother
Counsel, in her very brief opening, confirmed that the mother supports the orders proposed by the Independent Children’s Lawyer for time from Friday to Monday and alternate weekends and no time in the off week. The mother adopted her affidavit as true and correct. In examination-in-chief by leave, she denied that the father had provided food for her son at change overs or fruit. She said that the father had never contacted her about sporting lessons.
Under cross-examination by Counsel for the father, the mother confirmed that she was seeking sole parental responsibility. It was put that there was no good reason for this. The mother said that she was not against it but for the past three years she has tried to engage with the father on the app but she gets a negative response or none at all. She has never made demands. She just tried to engage. She wants X to have a father. He does not want to engage in sporting lessons, tutoring and all the other things. There is no engagement in respect to sporting lessons or speech therapy. She sends the father professional opinions but always gets a negative reaction. It is always a threat or attack and never positive.
Counsel put it that she saw the father more of a nuisance but the mother said no. She was sure that Mr Shovruk loves X but there is more to it than just playing. The father could attend the maternity nurse and the paediatrician. She had made offers for this in the past. When it was put that the family recommended he pursue parental responsibilities she said there needs to be a will. Counsel put it that each said the other was inflexible and asked if it wasn’t possible to make more of an effort. The mother said she does the offer the father make up time if she is late but she never gets that back. The child is withheld. There is no communication so she goes to the police.
Counsel put it that there was hoarding and clutter and that this would be noted by the Department. The mother said that this was not a problem. She had to show them photographs which showed no hoarding. X has a separate bedroom which she keeps clean. When asked why she rejected the parental grandmother collecting X from kinder the mother said there was a lot of conflict. The parental grandmother was picking him up. It should be just the parents.
Under questioning by the Independent Children’s Lawyer, the mother said her son went to sporting lessons weekly at P Sports Centre. They did this on Wednesdays and he will have more. She plans sports in the future. X is very healthy and she only takes him to the doctor if he has a temperature of 40 degrees. That was why he had antibiotics. The doctor had dismissed her and X as patients. She would like to enrol X at U School as it is 12 minutes from her and not zoned. It has before and after school care. She had looked at the website and called the school for information. X is a very happy and social child who has friends.
When asked about toilet training, the mother said that she tries positive reinforcement. She has no nappies at home and has followed advice. She referred to a toilet training animation which she had emailed to the father that day. The kinder are good but there is no consistency and X needs to be reminded. When asked about speech therapy she said he had had a session the previous day. It is still continuing. It was done over Zoom during COVID. Ms O is good too. Now it is face-to-face and the first time was yesterday. She was generally happy with X’s development, though, little problems with his speech was getting better.
The Evidence of Associate Mr D
Under cross-examination by Counsel for the father, Mr D was asked on what basis he found the mother reliable. He formed that view based upon the PAI. There are scales within it. He referred to paragraph 3.1.4 of his report which was cross-referenced with his interview. The mother does not have a mental illness or serious personality disorder.
When asked about his assessment of the father, Mr D said others might see him as self-centred. There would be a conflict if there was disagreement about the child. These were two very self assured people. They might struggle to find agreement. Both were competent, intelligent people. It was a willingness to do it problem.
Under cross-examination by Counsel for the mother, it was put that there might be problems with the father undertaking courses. Mr D said people are often resistant to treatment. The father has resolved his anxiety problems and he did not think he had any. It would not hurt either of them to talk to a professional. Neither of them needed treatment in a clinical sense. There was no cross-examination by the Independent Children’s Lawyer.
The Evidence of Ms J
Ms J’s report was tendered as exhibit M1. Under cross-examination by Counsel for the father, Ms J confirmed that X was sleeping during her call to the father. It was not long before he woke up. Maybe one hour. She did not think the father was disadvantaged by not having an observation session with X as part of the report process. When asked about the mother wanting to get rid of the Tuesday (more accurately, Wednesday) time, Ms J recommended this remain. X is used to seeing his father on Tuesday. Other days would be enough for childcare.
Ms J felt that she was unable to comment as to the mother’s reaction to the paternal grandfather’s visit to her work. Both parties reported a lack of verbal argument. When asked about time with the maternal grandmother, Ms J thought this was not unusual. When asked about time with the paternal grandparents she said she was not aware what was left of the intervention order. X has a close relationship to his grandparents. The child was at Suburb E during the interview.
When asked what the father had said he wanted, Ms J that he wanted his time to increase and wanted shared care eventually. She did not recommend this. Shared care can be appropriate if there is an amicable relationship and good relationship and communications between the parents. This was not the case. Children benefit from having a home base. Ms J felt that both parents were prepared to try and repair their relationship. She had recommended a parenting orders program. She was familiar with the app the parties used and it is very useful if communication is difficult.
Under questioning by Counsel for the mother, it was put that sole parental responsibility would be appropriate in light of the incident when the father was late in March and had been filming the change over. Ms J said it depended on whether they had done the parenting orders program. There had been some past amicable relationship between the parties. When it was put that the mother was seeking to remove the Wednesday time because of conflict of change over, Ms J said it was really unfortunate that X might miss out with time with his father because of conflict between the parents. He enjoys his time with his parents.
Under questioning by the Independent Children’s Lawyer, Ms J said that X had global developmental delay. She supported toilet training in time for school. If there were nappies in the father’s house, this should not happen. The app was crucial. When Counsel asked about the father’s unwillingness to wake his child at change over, Ms J said this was probably a matter of communication. She appreciated that removing the mid week time would reduce multiple change overs but was still of the view that the parties should undertake the parenting orders program.
The Final Submissions for Counsel for the Mother
Counsel indicated that the mother sought the orders suggested by the Independent Children's Lawyer. Sole parental responsibility was appropriate because of the failure of communications. The reduction in time should take place because of the conflict of changeovers on Wednesdays. The father had a low opinion of the mother and was critical of her parenting capacity. He had reported her to the Department. It might be possible to have changeover at a contact centre. The father was late more often than not, whereas the mother had been late only a handful of times. The mother seeks an order that the paternal grandparents not attend changeover. The paternal grandmother and father and the maternal grandmother had been involved in incidents.
The father’s evidence was concerning. He is not paying child support and provides no money to the mother. He first said he had provided food, but it then became apparent it was food for the child, and in any event the mother denied it entirely. The father had refused to agree with sporting lessons which the mother had already paid for. He did not acknowledge receipt of the paediatrician’s report. He was considering engaging a different speech pathologist because the previous one was young. He was acting unilaterally. He had been abusive to the GP who then refused to treat the mother and the child. There was a failure of communications and co-parenting. The mother would undertake to consult the father about any major decisions.
Submissions of Counsel for the Father
Notwithstanding as I understood it, technically, she was only engaged to cross-examine, Counsel assisted the court by making final submissions. She agreed that the evidence showed a history in which the father had failed to act in co-parenting. They had a different way of thinking about things that matter. The evidence the previous day showed that his attitude was deficient. He acknowledges his responsibility to modify his behaviour in future. The family report writer’s view was that the father was favourable in X’s life. There must be an order for shared parental responsibility. The father is a young man and has the capacity to learn. The court should make a parenting orders program order. Both parents have been at fault and both can learn to change.
The father is very well meaning and very honest. He has his mother to support him. There should be shared parental responsibility subject to the parties undertaking the parenting order program. Counsel said, I think on more than one occasion, that the father had had an epiphany following the previous day and now realised that he needs to change or modify his behaviour.
Final Submissions by the Independent Children's Lawyer
This case required insight, communication and consistency. The father had no insight. This was shown in the issues with toileting and sporting lessons. He has not been using the app for considerable periods of time. The matter has been in court for two and a half years and consistency was crucial. She referred to the orders previously forwarded to the court.
At this point the father sought permission to make further submissions of his own. Given his self-representation. I permitted him to do so.
The Final Submissions of the Father
The father said he had not seen a single good reason put why residence should not change. It comes down to his son. Who is able to provide and nurture for him into the future. At the core of this was he does not hear one single solid good reason not to change residence. A lot of things point his way and points towards his family. He referred to the presence of his mother in court and was critical of the non-attendance of the maternal grandmother. He has not come this far to forsake his son. The relationship is incredibly strong. It skyrocketed and the child says he loves him. X loves his father and mother, too. He is able to provide. His work prospects are excellent. He finds it ludicrous that time should decrease because he has halted the use of the communications app. Communication has slowed but it is not at zero. There has been years of lying by the mother to the Court, to this Court, the Magistrates and police. He does not respect this. It affects his willingness to engage. He has fantastic support. He said “We want to be involved”.
This paraphrase does not by any means cover everything Mr Shovruk had to say. It is fair to say that his submission consisted of substantial criticism of the mother and, as even the paraphrase makes clear, one thing that emerged with complete clarity was the father’s self-absorption and emphasis upon himself.
Some Brief Findings about the Credit of the Primary Witnesses
I have not said so previously but it may have become apparent to the reader that the father was a very unsatisfactory witness. His answers were often self-serving and non-responsive to the questions put. Some of his answers struck me as being downright strange. Why it should take up to one and a half hours to give a four-year-old food is quite beyond me.
Many of his answers struck me as being self-centred and as somewhat obsessive. His description of the matter of the sporting lessons showed that he was entirely concerned with his own interests and, while that is understandable when you only have an adored son for a brief period of time, what I found particularly noteworthy was the total absence of looking at it, so to speak, from the child’s point of view.
His certainty that he will make a new relationship and have a family when there is nobody apparently even on the horizon to complete the picture was another strange aspect of his evidence. He had no insight when questioned by the Independent Children's Lawyer into the prospect that the difficulties in communication could in any way be caused by him. His final speech certainly put completely to rest any suggestion that he had developed, as Counsel put it, some epiphany into his position.
The wife’s evidence can be dealt with much more shortly. She was clearly an honest witness who was direct and straightforward in the answers she gave to the questions put.
The paternal grandmother impressed me as being very understandably entirely aligned with her son.
At this point it is appropriate to come to the statutory pathway.
THE STATUTORY PATHWAY
The statutory pathway is described by the Full Court in Goode v Goode [2006] FamCA 1346 at [65].
In summary, the amendments to Part VII have the following effect:
1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7.The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)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.
8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.The child’s best interests remain the overriding consideration.
PARENTAL RESPONSIBILITY
The Independent Children's Lawyer and mother seek an order for sole parental responsibility and the father seeks that it be shared. In circumstances where it is so abundantly clear that the parents simply cannot communicate in an effective fashion, any order for joint parental responsibility is going to be fraught with difficulty. X does not go to school until 2024 and yet it is already apparent that each of the parents has formed a definite, strongly held view as to where X should go and it is of course not the same place. True it is that the father’s view of a choice of school is bounded about by his intention to move to Suburb G and he deserves credit for that. True it also is that the mother’s proposed choices happen to be more convenient for her. In truth, having seen and heard the parties give their evidence, I think that dealing with Mr Shovruk would be a nightmare. He will want what he wants and he will be implacable. For an order for parental responsibility to work at all there will have to be sole parental responsibility to the primary parent, who will be required to keep the other parent informed before taking any long-term decisions and to give the other parent an opportunity to comment, while retaining the final decision making authority.
SPEND TIME AND COMMUNICATION – THE PRIMARY CONSIDERATIONS
Everyone agrees that it is in X’s best interests to have a meaningful relationship with each of his parents. Although there are historical allegations of assaults made against the father, this issue was not, so far as my notes reveal, a matter pressed in anyway in cross-examination. The mother has alleged assaults (and to the police and to the Department) but the father denies them. Given the absence of any conclusive objective material I am unable to make any findings as to whether assaults occurred or not. I do accept, because the father has effectively admitted it, that the father took over control of the parties finances towards the end of the relationship and it would seem that this sort of controlling behaviour was part and parcel of the difficulties the marriage encountered. Nonetheless it is implicit in each parties’ position that X should have a meaningful relationship with his father. I note that the Department has no concerns for X’s wellbeing in either household, and neither do I.
It should be noted in this regard that I completely reject the father’s criticisms of the mother’s parenting capacity. It has been investigated in some detail by the Department who were quite satisfied that the mother’s care of the child was appropriate. The father’s criticisms of the mother’s clothing and the like strike me as being misconceived. She is the one after all who has taken steps to obtain remedial intervention in respect of X’s developmental delay, something in which the father has played effectively no part whatever. He fails even to respond when the wife seeks to communicate with him about such matters. There are number of other matters to be noted but they are better addressed, in my view, by consideration of the additional considerations.
The Additional Considerations - Section 60CC(3)(a)
X is too young to have expressed any views although he has been observed to have a warm and affectionate relationship with each of his parents.
Section 60CC(3)(b)
X obviously has a very close and bonded relationship with his mother who has been, as I find, always his primary carer. I do not accept the father’s exaggerated assertions as to his involvement with X during the relationship. I have heard and seen the mother give her evidence and I accept it. Having said that, however, it is equally apparent that X has a very loving and close relationship with his father. He is plainly doted upon by all the grandparents who are on the scene.
Section 60CC(3)(c)
While there was some delay in the father filing his application given the mother’s cessation of his time upon separation, it is plain from the way he has pursued his case to judgment, and from everything that he has said, that he has at all times wanted to spend time and communicate with X. Where he has been less active is in participating in decisions about major long-term issues. He does not appear to me to have engaged properly as he should have done with the mother’s endeavours to obtain therapeutic intervention to address the developmental delay that X has suffered from despite himself conceding that he is aware of it. While it might be said that enrolling a child in sporting lessons is not a major long-term decision, his failure to engage with this because it did not happen to suit him is something upon which I have already commented. His response about toilet training suggested to me that he has not, once again, really provided the sort of consistent treatment that the mother does in respect of this particularly important issue, which on any view of the matter should if at all possible be resolved before X goes to school.
The mother plainly by default has been the person making all decisions thus far.
Section 60CC(3)(ca)
The mother as the primary carer has plainly fulfilled her obligations to maintain X. The father’s evidence once again, I regret to say, was far from satisfactory. He pays no child support. He does not otherwise offer any money. It appears that he has felt it inappropriate to provide the mother with assistance because, as he would see it, she has made false reports to the police and the like.
Section 60CC(3)(d)
The father’s application that X live predominantly with him, commencing with an immediate move to equal time, can be dealt with shortly. The unequivocal and convincing evidence of Ms J is that, in the absence of an amicable and effective co-parenting regime between the parents, it is not going to succeed. Furthermore, she opined that a child needs a homebase, (this not just being a matter of how much time the child spends in one household but an overall matter) was entirely convincing. The notion that X should be taken from his mother’s primary care, in which he has lived all his life, together with the assistance of the doting grandmother, is plainly contraindicated. The father’s adamantine assertions that he had not heard one good reason why there should not be a change of residence only has to be stated to be dismissed. The one good reason why this should not occur is that the child is well settled in the primary care of his mother and should remain there. I note that if the child was relocated to the father’s residence as a primary carer, it seems, given the apparent intended expansion of his business interests, far more probable to me then otherwise that the real carers would be the paternal grandmother and grandfather, both of whom also of course dote upon X.
So far as the Independent Children's Lawyer and mother’s position is concerned, this would see a diminution of the father’s time with X. The evidence of Ms J was once again clear in that she felt that this would be a significant deficit for X, who is used to seeing his father on a Tuesday. This, however, has to be placed in perspective against the appalling difficulties that the father’s attitude to his Tuesday time produces. True it is, as was conceded, that the mother has on occasion been late on Tuesday mornings. This is unhelpful and unjustified. Neither of these parents seem to really appreciate that court orders are there to be obeyed. If X needs to be woken up earlier to get to his father on time then plainly he should be. Nonetheless I accept the mother’s evidence that she has only on a few occasions been tardy. I also accept her evidence, given with evident conviction, that the father is late on multiple occasions. The sum of the reasons advanced for this I regret to say strike me as being strange. If I understood the matter correctly the father does not like to wake X up whether at home or in the car. He also appears to suggest that when X does wake up it takes an eternity to feed him. This might well be the case if the child was somnolent and scarcely ready to consume food. If this was the case there is really no earthly reason to force the food into him. The picture of the grandmother sitting in the backseat feeding this half somnolent child is not one that fills me with any enthusiasm whatever.
I note and accept Mr D’s view that the mother is naturally mistrustful and suspicious. This has undoubtedly on occasion caused her to overreact to relatively minor tardiness on the father’s part. By the same token, however, the father’s refusal to respond to her when he is late, something I fully accept the mother’s evidence about, only breeds exactly the sort of difficulties of which he himself complains, namely reports to the police and so on.
I have formed a clear view that each of these parents is in their own way both self-confident, as Mr D correctly in my view opined, and also self-centred. Each of them knows what they want and they are very determined to get it. I do not think that there is anything on the horizon to suggest that the communication between the parents will improve. Each sits in their own bunker blaming the other. I am going to order that they undertake the parenting orders program in a slightly forlorn endeavour to assist them to get greater insight. Whether this occurs must be open to significant question.
Ms J’s opinion about the possible reduction of mid-week time was, as I have said, clear. I accept that it would be a significant deficit in X’s life, as she opined. Nonetheless, I think that to remove the constant difficulties with changeovers is what is in X’s best interests. I repeat that I accept the mother’s evidence about the difficulties this causes. The upset and general hurt it provides to the mother inevitably must impact upon a child as young as X is. I do not think, especially in light of the fathers extraordinary final submissions, there is any chance he will improve. As X gets older, he will inevitably become more aware of, and upset by, the tension and hostility between his parents at changeover. It is plainly therefore better that time go from after school, or 3.30 pm Friday, till Monday, as the Independent Children's Lawyer submits is appropriate.
Section 60CC(3)(e)
There is no difficulty about expense in either parties’ proposal. The practical difficulties in any kind of spend time regime result from the complete failure of communication between the parents. While the mother has not helped by being overly eager to make reports to the police, and I note that her style of messaging involves an over-emphasis upon court orders, it is plain that the father’s refusal to communicate with her is at the core of the difficulties they face.
Section 60CC(3)(f)
There is no question that the mother can properly provide for X’s needs. Plainly her mother is also a competent grandparent. There is no reason to suppose that the father’s parents are likewise unable to provide for the child’s needs. They dote upon him. Whether the father is as able to provide for X’s needs as he thinks is in my view questionable. His attitude towards X is very self-oriented. His response to issues such as sporting lessons and toileting has been selfish and unhelpful. He obviously loves X very dearly, and it is clear that he sees his care of X as being part of a family unit (the emphasis in his final submissions was on what “we are going to do”).
Section 60CC(3)(g)
Both these parents have their deficits as Mr D, I think, pointed out. As I have commented already they both tend to sit in their bunkers and throw mud at one another. The mother is, however, making her own way on her own. She is employed and with the assistance of her mother is well able to care for X’s development. The father is at least sufficiently able to do so. His personality struck me, as it did perhaps Mr D, as being somewhat grandiose at times. His adamantine assertion as to his future family and the success of his business suggests a self-confidence bordering on arrogance. Nonetheless, it should be clearly remembered that neither of these parents are in anyway mentally unwell. Neither has any sort of problems with alcohol or drugs. They are both, leaving aside their interpersonal squabbles, thoroughly decent law-abiding citizens.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
Each of these parents are loving parents. They have their deficits as I have described them but that does not diminish their continuing love for the child. The mother’s attitude towards the responsibilities of parenthood in my view is completely unexceptional. She has done what she has been able and what is necessary to address X’s needs and development. The father’s responses have, as I have already indicated more than once, been somewhat wanting.
Section 60CC(3)(l)
It is plainly appropriate to make final orders now. No-one has suggested the contrary.
Section 60CC(3)(m)
There are no other relevant matters in my view.
CONCLUSION
It is always regrettable to have to make findings about parties that may be hurtful to them. Most regrettably, the way the parties have run their case in this matter has left the court with no alternative but to determine the matters in issue between them in terms which necessarily cannot be entirely flattering to either parent. Nonetheless, when a step is taken back from the fray, it is entirely apparent that the orders proposed by the Independent Children's Lawyer are workable, something vitally important where there is such a poor relationship between the parents. They are also clearly the orders that are in X’s best interests. There will be orders accordingly.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 13 April 2022
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