Simpson and Edwards
[2008] FMCAfam 1333
•17 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIMPSON & EDWARDS | [2008] FMCAfam 1333 |
| FAMILY LAW – Parenting orders – child been in shared care arrangement – competing “live with” applications – child has special educational needs – need for consistency – sole parental responsibility in child’s best interests – ordered live with Father who is to have sole parental responsibility. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Goode v Goode (2006) 36 Fam LR 422 |
| Applicant: | MR SIMPSON |
| Respondent: | MS EDWARDS |
| File Number: | DGC 3186 of 2008 |
| Judgment of: | Bender FM |
| Hearing dates: | 8 & 9 December 2008 |
| Date of Last Submission: | 9 December 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 17 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Self Represented |
| Solicitors for the Applicant: | Self Represented |
| Counsel for the Respondent: | Self Represented |
| Solicitors for the Respondent: | Self Represented |
| Counsel for the Independent Children’s Lawyer: | Mr Hoult |
| Solicitors for the Independent Children’s Lawyer: | Marshalls & Dent |
ORDERS
All previous parenting orders be discharged.
The Father have sole parental responsibility for the child of the relationship [Z] born in 2001 (“[Z]”).
[Z] live with her Father.
[Z] spend time and communicate with her Mother as follows:
(a)during school terms, each alternate weekend from after school Friday to 5.00 pm Sunday commencing 6 February 2009;
(b)from 9.00 am on 2 January 2009 to 5.00 pm on 4 January 2009;
(c)
from 9.00 am on 8 January 2009 to 5.00 pm on
10 January 2009;
(d)
from 9.00 am on 21 January 2009 to 5.00 pm on
23 January 2009;
(e)
for half the school term holidays commencing Term 1 2009 as agreed between the parties, and failing agreement, from
12.00 noon the first Saturday to 12.00 noon the second Saturday of the term holiday;
(f)for two separate weeks in the long summer vacation commencing in the 2009/2010 summer vacation as agreed between the parties and failing agreement the week commencing 2 January and the week commencing 19 January;
(g)
on the Mother’s Day weekend from after school Friday to
5.00 pmSunday;
(h)from 5.00 pm Christmas Day to 5.00 pm Boxing Day in 2008 and each alternate year thereafter and from 5.00pm Christmas Eve to 5.00 pm Christmas Day in 2009 and each alternate year thereafter;
(i)from after school until 6.30 pm on [Z]’s birthday, the Mother’s birthday or [X]’s birthday if they fall on a school day and from 10.30 am until 2.30 pm if they fall on a non-school day;
(j)
by telephone each Tuesday, Thursday and Sunday between
6.00 pmand 6.30 pm with the Mother to call [Z] on a number provided by the Father to the Mother; and
(k)as otherwise agreed between the parties.
To avoid any confusion, the Mother’s time with [Z] pursuant to order 4(a) herein, is suspended during the school holidays and recommences on the first weekend of each school term.
In the event [Z] is with her Mother on the Father’s Day weekend, her time shall cease at 5.00 pm on Saturday.
In the event [Z] is with her Mother when [Z]’s birthday falls on a Saturday, that time will be suspended between 10.30 am and 2.30 pm.
In the event [Z] is with her Mother when [Z]’s birthday falls on a Sunday, her time will conclude at 2.30 pm on that day.
[Z] shall be collected by the Mother from the McDonald’s Restaurant, [location omitted] at the commencement of her time with her Mother, when her Mother is not otherwise collecting her at the conclusion of school and shall be collected by the Father from the McDonald’s Restaurant, [location omitted] at the conclusion of [Z]’s time with her Mother save for order 7 when the Father shall collect [Z] from and return [Z] to the McDonald’s Restaurant, [location omitted].
The Father shall advise the Mother at all times by the use of a Communications Book to be placed by him in [Z]’s bag of the following:
(a)the name of [Z]’s school;
(b)the names and contact details of all [Z]’s treating medical practitioners;
(c)the names and contact details of any counsellors, psychologists, educational psychologists and other professionals engaged in [Z]’s care; and
(d)details of all extra-curricular activities in which [Z] is participating.
The Father shall do all things necessary to authorise all schools attended by [Z] to provide to the Mother at her expense, copies of all notices, newsletters, school reports and school photograph order forms and the Mother is authorised to attend parent/teacher interviews, school concerts, speech nights, sporting events and all other activities to which parents are usually invited to attend.
The Father shall do all things necessary to authorise all of [Z]’s medical practitioners, counsellors, psychologists, educational psychologists and such other professionals who [Z] may attend upon from time to time to speak with the Mother in relation to [Z] and to involve the Mother in any such treatment if such professionals determine such involvement is in [Z]’s best interests.
The Father shall do all things necessary to authorise the Mother’s attendance at any extra-curricular sporting, music or other activities in which [Z] is engaged from time to time.
Both parents are to immediately notify the other of any serious illness or accident suffered by [Z] whilst in their care as well as the name of any treating medical practitioner or hospital to which [Z] is taken.
The Independent Children’s Lawyer is authorised and directed to forthwith provide Ms S with a copy of these orders and reasons for judgment.
AND IT IS NOTED THAT:
A.The Father shall continue to pay all of [Z]’s educational expenses.
B.Both parents are at liberty to attend any of [Z]’s school, sporting or other extra-curricular events which parents would usually attend at the same time.
C.The Independent Children’s Lawyer has arranged for [Z] to attend upon Ms S on Thursday 18 December 2008 and for Ms S to explain these orders to [Z].
IT IS NOTED that publication of this judgment under the pseudonym Simpson & Edwards is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 3186 of 2008
| MR SIMPSON |
Applicant
And
| MS EDWARDS |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings, the Father is seeking orders that the child of the relationship, [X] born in 2001 (“[Z]”) live with him, that he have sole parental responsibility for her care and that she spend time with the Mother each alternate Saturday from 9.00 am to 5.00 pm and some limited time during school holidays.
The Mother seeks orders that [Z] be permitted to change schools from G Primary School to C Primary School, that she spend time with her Father Wednesday to Friday in one week and Friday to Sunday the following week, half school holidays and special days, and otherwise live with her.
Background
The Father was born in 1967 and is aged 41 years. He is employed as a [omitted].
The Mother was born in 1972 and is aged 36 years. She is engaged in home duties.
The parties were in a relationship for approximately five years between 1998 and 2003.
In 2002, the Mother was diagnosed with paranoid schizophrenia. Her last manic episode was in 2005 and her condition has been managed with medication since that time.
The parties commenced litigation upon separation in 2003 in relation to the arrangements for [Z]. Interim orders established a shared care arrangement. This litigation finally concluded by way of final consent orders on 12 December 2005.
The December 2005 orders provided inter alia:
a)Joint responsibility for long term decisions;
b)[Z] to live week about with each parent, half holidays and special days;
c)[Z] attend G Primary School;
d)
Father to reside with his Mother within five kilometres of
G Primary School until [Z] finishes Grade 6;
e)Changeovers not at school to take place at either [suburbs omitted] Police Stations; and
f)Mother to authorise her treating doctor/psychiatrist to advise the Father if such professional has concerns as to Mother’s capacity to care for [Z].
In September 2008, [Z] disclosed to the Paternal Grandmother, her Father and her teacher that she was scared of her Mother, that her Mother had scratched her on the chest and grabbed her around the neck.
[Z] has been missing at least one day of school each week whilst in her Mother’s care and had been for over a year. The Mother advised the school she could not afford petrol to get [Z] to school.
The school identified [Z] as having learning difficulties. In May 2008, an assessment of [Z] was prepared by an Educational Psychologist, [name omitted]. The Report confirmed [Z] has some learning difficulties and recommended a number of strategies to assist [Z] into the future to be implemented both at school and at home.
Interim orders were made on 29 September 2008 whereby [Z] lives with her Father from Sunday to Wednesday and her Mother from after school Wednesday to 10.00 am Sunday. The Mother was injuncted to ensure [Z] attended school every Thursday and Friday unless ill.
The Father’s Proposals
The Father seeks orders that he have sole parental responsibility for [Z], that she live with him and spend time with her Mother from
9.00 amto 5.00 pm each alternate Saturday, part-days with her Mother on special occasions and whole days during the school holidays but not overnight. He also seeks orders that she continue to attend G Primary School, and that [Z] continue to engage in counselling. The orders sought are in accordance with the recommendations contained in the Family Report prepared by Pixie Shing and released on 14 November 2008.
It was the Father’s evidence that on 5 September 2008, [Z] told the Paternal Grandmother that she was afraid of her Mum and that her Mother had scratched her on the chest because her Mother believed she had tried to lock her out of the house. [Z] also disclosed that she had told her teacher, Ms J, what her Mother had done.
The matter was reported to the Department of Human Services, who interviewed [Z]. The Department of Human Services determined that they did not believe [Z] to be at risk in her Mother’s care.
The Father gave evidence that [Z] had missed a considerable amount of school when living with her Mother and that her Mother’s explanation for this is that she could not afford petrol to get [Z] to school every day that she was in her care.
Because of difficulties [Z] was having at school, the school organised an assessment by an educational psychologist which was released in May 2008. The Father indicated that a programme was specifically designed by the school for [Z] which requires [Z] to do a number of things on a daily basis at home. This includes reading, comprehension, spelling and noting words that she did not initially identify or understand the meaning of. She is to repeat exercises designed to assist with this.
The Father is employed as a [omitted] and is currently working the night shift. This involves four nights a week from 3.00 pm to 12.00 midnight.
The Father indicated that he would get up with [Z] at approximately 6.15 am and would do some reading and homework with her for approximately ten to fifteen minutes. He then does all the things necessary to get her ready for school. It was his evidence that his Mother would pick [Z] up from school and look after her on those days that he was at work.
The Father indicated that he and the Mother have no communication. His evidence was that she refused to take any calls from him and had told him that if he were to try and communicate with her by leaving notes or letters in [Z]’s bag or folder at school, she would not read them but just tear them up.
The Father was concerned that the Mother’s mental health remained an ongoing issue for her. In the orders that were made by consent in 2005, the Mother was to authorise her treating psychiatrist/psychologist/ general practitioner to notify the Father in the event they had any concerns as to the Mother’s mental health, and in particular if it was impacting on her ability to care for [Z]. It was his evidence that he had never been notified by the Mother as to who any of her treating doctors were and that accordingly he was in ignorance as to whether she was in fact receiving any care or if there was any issues with her mental health.
It was the Father’s evidence that [Z] had told him and his Mother that her Mother was always angry with her, had from time to time slapped her and that she didn’t understand why because she hadn’t done anything wrong.
The Father was concerned that this behaviour was indicative of the Mother behaving erratically and that it may reflect ongoing mental health issues.
It was the Father’s evidence that [Z] not only has difficulties educationally at school, but that she also has some difficulties socially in that she has problems communicating appropriately with both adults and children. His evidence is that [Z] will sometimes become very loud and shout when communicating with people which can be most off-putting. He also indicated that she will make the early overtures of friendships with her contemporaries, but will then withdraw and become aloof which means that those friendships don’t develop.
Because of her educational and social difficulties, the Father has arranged for [Z] to have counselling with Ms S. This is continuing.
When cross-examined as to why the Father has not put in place arrangements for Ms S to engage the Mother, it was his evidence that when Ms S first saw [Z], she sought the parents’ authorisation to be able to communicate with and obtain information about [Z] from her school. He said that the school had provided the appropriate authorisations to the Mother and he had been advised by the school that she had refused to give permission for Ms S to speak to them about [Z]. From this he concluded that the Mother did not approve of [Z] obtaining counselling and that she did not wish to be involved in the process in any way.
The Father gave evidence that the Mother had actively ensured that he was not to attend any events involving [Z] whilst she was spending time with her Mother. An example of this was an incident that occurred at the local swimming pool when [Z] was competing in her first school event. The Father, who swims each morning at the pool and who gave evidence that he had been involved in [Z] learning to swim for some eighteen months, was at the pool having done a training when [Z]’s first event was on. He remained at the pool with a view to watching [Z] swim. His evidence was that when the Mother saw him there she started screaming and yelling at him, and making an obvious scene. Because of this, he left the pool and he advised that the school principal suggested it might be best for [Z] if he not attend any future events when [Z] was in the Mother’s care.
The Father was extremely disappointed at this attitude as he thought it would be much better for [Z] if she were in a concert or some other school event to be able to look out and see both her parents watching her and applauding her.
The Father indicated that his main concern for [Z] was to provide her with an environment that was stable and consistent and that would enable her to have a regular routine that would maximise potential. He believed that if she were to live predominantly with him and his Mother, she would attend school every day, she would be able to closely follow the special programme put in place for her by that school and would have a loving and secure home life where she would not be exposed to her Mother’s inconsistencies of behaviours and emotions.
Ms T
The Paternal Grandmother, Ms T, confirmed that on 5 September 2008 [Z] had disclosed to her that she was scared of her Mum because of an incident where she had accidentally locked her Mum out of the house and her Mum had scratched her on the chest and become extremely angry with her (“the scratching incident”).
Ms T confirmed that she and her Husband look after [Z] four evenings a week when her son is at work. She described the usual routine for [Z] in these circumstances. She indicated that she and her Husband pick [Z] up from school, occasionally take her to the shops, but usually come home where [Z] has a snack. [Z] then does her homework which involves the remedial reading which has been set by [Z]’s class teacher and remedial reading teacher. She then has a play, has her dinner, has her bath and then before she goes to bed, either Ms T or her Husband has another session of ten to fifteen minutes with [Z] doing her remedial reading or spelling.
Ms T confirmed that the reading and spelling is again done by her son with [Z] in the morning. She advised that the teachers had indicated that it was very important for [Z] that the work is repeated and reinforced regularly.
Ms T indicated that [Z] had told her on a few occasions in the last year that her Mother had slapped her and that her Mother gets really angry with her all the time. Ms T indicated when she asked [Z] why, [Z] told her that she had no idea why her Mother was angry with her because she hadn’t done anything wrong.
Ms T indicated that she wasn’t qualified to comment on the Mother’s mental health issues and indicated that she supported her son in seeking the orders that he was, primarily because of her concerns about the kind of parenting that [Z] was receiving in her Mother’s household.
The Mother’s proposals
The Mother seeks orders that [Z] changes school and attends C Primary School, the Primary School that is local to where she resides. She then proposes that [Z] spend after school Wednesday to before school Friday in Week One and from after school Friday to 5.00 pm Sunday in Week Two with her Father as well as half school holidays and special days, and otherwise live with her.
The Mother indicated that her mental health issues were well under control. She advised that she had not attended a psychiatrist since the middle of 2005 because her condition had stabilised. She indicated that her involvement with a psychiatrist had ceased after six months of close monitoring by her Case Manager. She is on regular medication, taking 400 milligrams of Seraquin each night. She attends her local general practitioner, Dr J approximately every three months for the renewal of her prescriptions. She was of the view that she would be on medication to manage her condition for life.
When cross-examined as to why [Z] had regularly missed school whilst in her care, it was her evidence that she was unable financially to afford the petrol to get her to school each day.
She laid the blame for this with the Father on the basis that he had sought, and successfully so, to have the level of his child support reduced on the basis that he was paying all school expenses. When asked why she did not prioritise the importance of [Z] getting to school by, for example, contacting the Father and explaining the difficulty and asking him to have [Z] an extra couple of nights, or cancelling her Foxtel subscription, giving up cigarettes or cancelling the internet, the Mother was unable to explain why she had not thought to put such arrangements in place.
It was the Mother’s evidence that she did not believe [Z] was being disadvantaged by missing school regularly because she made sure that [Z] did reading, jigsaw puzzles and other activities at home.
The Mother indicated that she had spoken to the school about being able to ‘home-school’ [Z] on the days that she was unable to get her to school. She indicated that initially the school had given her some work to do with [Z] at home, but that this had ceased and that the school principal had made it clear that it was important that [Z] got to school every day.
The Mother indicated that she had something of a strained relationship with the school, and seemed to be quite critical of them. When cross-examined about what [Z]’s next talk was about, she was unable to answer and explained that that was because the school hadn’t told her.
She was of the view that the school was doing a good job for [Z], but not a great one.
The Mother was also critical of the Father, and to a lesser extent the school, for not involving her in the counselling that [Z] is having with Ms S, or providing her with any contact details for Ms S.
It was her evidence that she had asked the school for Ms S’s contact details, and that they had refused to give them to her because of their privacy obligations.
When questioned as to why she had not asked the Father for those details, or obtained Ms S’s contact particulars from the phone book, the Mother was unable to explain why she had not taken such action.
Throughout her evidence, the Mother referred to the time that [Z] was with her as “my time”. She was very critical of the Father wanting to be able to participate in extra-curricular activities for [Z] during “her time” and could see no benefit for [Z] in being able to have both her parents enjoy special occasions.
Evidence was given of an occasion when the Mother approached the Father’s girlfriend in the schoolyard with a request that she not speak to [Z] when [Z] was in her care. When questioned of this, she was of the view that it was “my time” with [Z], and that it was inappropriate for someone else to be speaking to her.
An unfortunate sideline to this incident, is that [Z] who is friends with [H], the son of the Father’s girlfriend, is concerned as to whether she can play with [H] when she is living with her Mum. For a young girl who has difficulty making friends, this was most unfortunate and the Mother showed no insight into the difficulties this might cause her daughter.
Living with the Mother is her now sixteen year old daughter, [X]. [X] is finishing Year 10 and the evidence clearly shows that she is a
well-adjusted young woman who is a credit to both her parents.
[X] and [Z] would appear to have a good relationship, though there have been times when [Z] has been resentful of [X], telling her Mum that she wished [X] had never been born.
It was the Mother’s evidence that on one night a week, she goes to bingo with her Father, and [X] looks after [Z] during this time. Concerns were raised that [Z] had been watching age inappropriate horror movies because she told both her Grandmother and the Report Writer of these scary movies and it was apparent that they continued to haunt her long afterwards.
The Mother was adamant that [Z] did not watch such movies in her home, though was unable to comment as to whether [Z] had walked in on something that [X] was watching that had impacted badly upon her.
When questioned as to how regularly she ensures that [Z] does the remedial reading and spelling work set by the school to assist [Z], the Mother’s evidence was unclear. She indicated there were occasions when the reader had not been in [Z]’s bag, but blamed the Father for this. She also seemed unable to link the importance for [Z] to work on a daily basis on her learning issues and her not being at school as not being in [Z]’s best interests.
Mr G
With the leave of the court, the Mother was given leave to have Mr G, who is [X]’s Father give vive voce evidence.
It was Mr G’ evidence that he and the Mother have a
co-operative relationship in relation to the parenting of [X].
He sees [X] every fortnight, as well as half holidays, though conceded that as [X] is now sixteen, this arrangement is a little less structured than it was previously.
He confirmed that [X]’s sixteenth birthday party had just recently been held at his home, and both the Mother and [Z] had attended.
It was his evidence that he also has another daughter who is ten years old named [Y], and that [X] is a good big sister to [Y]. He also advised that from his observations, [X] is also a good big sister to [Z], and that when he sees them together, they are happy, cheerful, playing and laughing together.
He indicated that he assists the Mother regularly by coming around and mowing her lawns, and doing other jobs around the house. He indicated that he is currently not paying child support because he’s unemployed, but there has been occasions where he has helped the Mother out with some money to ensure that [X] was able to get to school.
He described [X] as “a good kid” and confirmed that he was very pleased with how she was going at school and that he had no issues about the Mother’s parenting of his daughter.
What was most clear, was the stark contrast between the relationship the Mother had with Mr G and the positive impact that has had on the parenting of [X] and her progress, and the total lack of relationship that the Mother has with the Father in this case, and the negative impact that that is having on [Z].
Pixie Shing
Ms Shing is a Family Consultant with the Family Court of Australia and she prepared a detailed Family Report in this matter. It was her recommendation that [Z] live with her Father, that he have sole parental responsibility for [Z] and that [Z] only have limited daytime time with her Mother.
Ms Shing spoke positively of the efforts made on [Z]’s behalf by
G Primary School and was strongly of the view that it was very important for [Z] to continue at that school. This is particularly because of [Z]’s learning difficulties.
Ms Shing indicated that it was particularly important for [Z] to have consistency and routine, and that she needed to primarily live with one parent in one household, and that that should be the household of her Father.
She observed [Z] with both her Mother and her Father, and the contrast in [Z]’s behaviours was most marked.
She described [Z] with her Mother in the following terms:
“[Z] adopted a pattern of moving from one activity to another, shouting loudly all the time. Despite some attempt on
Ms Edwards’ part, she could not get [Z] to engage with her in joint activities. She then asked [Z] if she had enjoyed the train trip to the city earlier and the child responded positively but then commenced screaming: ‘Rock, rock, rock, swish, swish, swish.’”
When describing her observations of [Z] with her Father, Ms Shing observed:
“She excitedly told him there was a game of Monopoly available… Throughout their game Mr Simpson demonstrated an ability to be educative, patient and to implement boundaries as required. [Z] quietly sat as her Father doled out game documents and she looked around the room at other children present.”
The Paternal Grandmother, Ms T, then joined her son and granddaughter, and Ms Shing made the following observations:
“The game proceeded and it became clear that the players are accustomed to engaging in such activities together and [Z] was amused by some of her father’s actions. A great deal of warmth was evident and [Z] was able to follow the conversation and to participate in it.”
Ms Shing spoke to both the Deputy Principal of G Primary School,
Ms B, and to [Z]’s class teacher, Ms J.
In her Report, Ms Shing reported that both Ms B and Ms J raised concerns about the consistency of commitment by Ms Edwards to
[Z]’s remedial and recovery work. Ms B, when speaking of the reading recovery programme told Ms Shing:
“Consistency is essential for positive results and, again,
Ms Edwards’ input appears to be below par.”
Ms J told Ms Shing:
“[Z] does not have a level of extension of school work when she is in her mother’s home as when Ms J spoke with her mid-year, Ms Edwards told her that when [Z] is with her, ‘we put all school work aside’”.
By contrast, when speaking of Mr Simpson, Ms B told Ms Shing:
“[Z] is on a special programme called The Learning Improvement Plan because she had not been meeting standards and she is doing well within the programme and her father is solidly trying to meet all of the goals associated with it.”
Ms J told Ms Shing:
“Mr Simpson is putting a lot of effort in to the requirements of The Learning Improvement Plan in which [Z] is a participant and if he requires clarification of any aspects of the process he regularly seeks it. Currently, he is working on the hundred most popular words with his daughter. It is evident when [Z] is in the care of her father as she is ‘more focussed, more settled, and prepared for school in every way’.”
Ms Shing identified that there is a marked difference for [Z] between her Father’s household and her Mother’s household. Ms Shing describes the Father’s household as consistent and predictable, as compared to the Mother’s household which she describes as chaotic, unpredictable and at times abusive.
Ms Shing is of the view that the Father has good insight into [Z]’s difficulties, whilst she felt the Mother’s insight was limited. In her Report, Ms Shing states at paragraph 73:
“It is assessed that Ms Edwards is not attuned to the needs of her daughter and that is particularly evident in her lack of attendance to [Z]’s basic right of regular and ongoing education. In addition, Ms Edwards lacks any insight into what a change of school would mean for her daughter… Ms Edwards has allowed her lack of rapport with [Z]’s teacher to interfere with her engagement in necessary extra programmes for her daughter’s development.”
Further in paragraph 74, Ms Shing states:
“To a certain extent, Ms Edwards is absorbed with her own needs over those of her daughter. In addition, she does not accept blame for any deficiencies or anxieties in the world of her daughter.”
It was Ms Shing’s recommendation that the time [Z] spends with her Mother be limited to daytime only, and if it were to be overnight, for one night only. When cross-examined as to the impact this would have on [Z] in circumstances where to date she has lived with her Mother for no less than seven days out of fourteen, Ms Shing’s view was that the need for consistency for [Z] was of paramount importance and that accordingly the amount of time to be spent in her Mother’s household should be limited to maximise the consistency.
Ms Shing gave evidence that the impact on [Z] of a change in her longstanding living arrangements would be greatly lessened if the parents were positive about such a change and that it was explained to [Z] as having been decided on the basis of what was best for her, for example, by explaining it was so that she would be living close to her school which would make it much easier for her.
Ms Shing indicated that if this could be explained to her by the adults in her life, and particularly with the assistance of Ms S, that could only assist the positive outcome of the change in arrangements.
In cross-examination, Ms Shing conceded that she did not have an extensive knowledge of the Mother’s household and that there may be positive aspects to [Z]’s life there of which she was unaware.
Ms Shing recommended that the Father have sole parental responsibility for [Z]. She is of this view because of the Mother’s failure to participate in important decisions concerning [Z], particularly her education and engagement in counselling.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Parental responsibility
Section 61da of the Act provides as follows:
1.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.
2.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:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.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.
The Father is seeking an order that he have sole parental responsibility for [Z] in accordance with the recommendations of the Family Report Writer, Pixie Shing.
The Father believes that if he were to be the sole decision maker in relation to [Z]’s life, and in particular her education, counselling and extra-curricular activities, this would ensure that those decisions would be made in [Z]’s best interests. He also believed that this would ensure the consistency and stability that [Z] needs to address her current difficulties and to maximise her ability to achieve her full potential into the future.
The Independent Children’s Lawyer, in his submissions, supported an order whereby the Father have sole parental responsibility for all decisions for [Z] in relation to her education and counselling issues, and that otherwise the parties have shared parental responsibility.
There is no doubt that the Mother has failed to make decisions and to engage in important aspects of [Z]’s life.
In particular, her failure to ensure [Z]’s regular attendance at school and failure to actively participate and engage with the school in the remedial work identified as necessary for [Z] to progress is of major concern.
Also of concern is her inability to engage with [Z]’s counselling with Ms S. Her explanation for this failure that no-one told her how to contact Ms S is unacceptable and indicative of her propensity to lay blame for any shortcomings in her parenting at the feet of anyone but herself.
Of further concern is the Mother’s continued objection to any suggestion that she and the Father work together in their parenting of [Z]. Whilst she was very critical of the Father for failing to take up her offer for mediation to discuss issues around [Z] changing school, she failed to see that her insistence that the Father, or anyone known to the Father, not be involved in any of [Z]’s important extra-curricular activities during any period that [Z] was living with her was not in [Z]’s best interests. Her belief that such time was “my time” is indicative of her lack of insight into what is best for [Z]. She was unable to acknowledge that it would be important for [Z] to have both her parents there when she was engaged in something exciting or important for [Z] like swimming or speech night or concerts. She seemed only able to consider this issue from her own perspective.
It was the Father’s evidence that the Mother refuses to engage in any communication with him, either by phone or indirectly through messages or notes. This evidence I accept. This has the practical outcome that it is not possible for these parents to make joint decisions that are in [Z]’s best interests.
For these reasons, orders will be made that the Father have sole parental responsibility for [Z].
This does not mean however that the Mother will be excluded from the major and important areas of [Z]’s life. Orders will be made that the Mother is to be advised as to all issues in relation to [Z]’s education, counselling, health, extra-curricular activities and other major events in her life and that she be specifically authorised to engage in and participate in all areas of [Z]’s life.
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent.
The Full Court in Goode v Goode (2006) 36 Fam LR 422 held that even where the court does not make an order that the parents have equal shared parental responsibility for a child, the court must still consider whether it is in the child’s best interests that the child spend equal time or a substantial and significant time, with each parent.
For the reasons set out subsequently in this judgment, it is my view that it is not in [Z]’s best interests that she spend equal or substantial and significant time with her Mother.
When determining what is in the child’s best interests, the court must consider the matters set out in ss.60cc (2) and (3) of the Act. Each of the matters contained in the subsections must be considered and assessed in the context of each of the party’s behaviours and proposals and a determination made of which party’s proposals best meet the child’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[Z] does have a meaningful relationship with both her parents and there is no doubt that she loves and is loved by both of them.
It is clear however that the home she has with her Father and Paternal Grandmother is a positive, consistent and predictable household in which she is much calmer and more settled.
Her Mother’s household is much less predictable and [Z]’s life there does not provide her with the consistency and stability that she needs.
The incident which precipitated the application currently before the court involves one where there is an allegation that [Z] was assaulted by her Mother, as a result of which, she received a scratch on her chest and, according to [Z], her Mother placed her hands around her throat.
There is evidence that at times [Z] is fearful of her Mother, that her Mother has slapped her and that her Mother’s moods are unpredictable in that she is angry and annoyed with [Z].
It’s the Mother’s evidence that the scratch to [Z] was accidental and that at no time did she place her hands around [Z]’s throat. The Mother also denies slapping [Z] and denies that she is always angry and unhappy with [Z].
There is no doubt that the Mother’s home is more volatile than the Father’s. However I am not satisfied that [Z] is at risk of physical harm in her Mother’s home.
I find that that the Mother is unable to consistently meet [Z]’s psychological and educational needs.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account, and I will consider each of these in turn.
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
[Z] is only seven years of age, and accordingly her views were not canvassed by Ms Shing.
It was the Father’s and Paternal Grandmother’s evidence that there have been occasions when [Z] has told them that she didn’t want to go back to her Mother’s place because she was scared to. I accept that there have been occasions when [Z] has been reluctant to return to her Mother’s care.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
[Z] has a close and loving relationship with both her Father and her Paternal Grandmother. Ms Shing in paragraph 71 of her Report made the following assessment:
“Mr Simpson is a positive, gentle, consistent and predictable presence in [Z]’s life who has all the capabilities to fulfil the role as her primary caregiver, ably assisted by his gentle mother,
Ms T.”
It was the observation of Ms B, the Deputy Principal of [Z]’s school, that [Z]’s life is positive when she is with her Father and she presents differently in the school setting when she is in his care.
It is also apparent that a vital part of [Z]’s life with her Father is her relationship with her Paternal Grandmother and to a lesser extent, her Paternal Step-Grandfather. Ms T is an integral part of the Father’s household and because of the Father’s work commitments, has a lot to do with her care. Ms T presented as a caring and loving Grandmother, who as a former school teacher, is able to form part of the team that is working with [Z] to address her educational needs.
[Z]’s relationship with her Mother is more complex. Whilst there is no doubt that [Z] loves her Mother, her Mother’s inconsistent behaviours, failure to attend to her fundamental educational needs and, at least from [Z]’s point of view, her inexplicable anger with [Z] makes this relationship more difficult for [Z].
Also living with [Z] in her Mother’s household is her older sister, [X]. [X] is sixteen years of age and would appear to be progressing well. Whilst Ms Shing had some concerns as to the relationship between [Z] and [X], I do not have these concerns. [Z] loves her sister. Their age differences mean that at this point in time, their life expectations and priorities are vastly different and the orders that are being made will enable this relationship to be maintained.
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
As discussed in length earlier in this judgment, there are real concerns as to the Mother’s ability to facilitate [Z]’s relationship with her Father.
The Mother’s refusal to communicate with the Father in any way is of major concern.
Also of major concern is the Mother’s ongoing blame of the Father for any of the deficiencies identified in relation to her care of [Z].
It was her evidence that it was the Father’s application for a reduction in child support, as is allowed under the legislation, as being the reason that she was unable to get [Z] to school.
It was the Mother’s evidence that she had not engaged with Ms S because the Father had not given her the requisite details to be able to do so.
In her closing, the Mother’s first comment was:
“Mr Simpson has made things increasingly difficult for me over the last year.”
The Mother at no time was able to identify anything positive that the Father bought to [Z]’s life.
The Father, whilst conceding that the Mother is an important part of [Z]’s life and that she should continue to be part of [Z]’s life, did not see her as having the capacity to provide the consistency of care that [Z] needs.
The Father, when cross-examined as to what arrangements should be put in place for [Z], was of the view that in accordance with
Ms Shing’s recommendations, [Z] should not spend any overnight time with her Mother and sister. The Father was asked what he would do in circumstances where orders were made in accordance with his proposals, and [Z] rang him at 4.00 pm on a Saturday afternoon and said, “I’m having a great time at Mum’s and can I stay overnight?”. He stated that he believed that the orders of the court should be complied with strictly and that he would not be prepared to be flexible in relation to varying them.
It is suggested that the Father needs to recognise that it is in [Z]’s best interests that both parents accept the need for flexibility in relation to [Z]’s arrangements. As she gets older, her needs and activities will develop and both parents will need to recognise that there will be occasions when court orders do need to be adjusted to enable [Z] to attend special events, social engagements and major familial events. Neither party should have to return to court to seek a variation of the orders in such circumstances.
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:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
As noted earlier in this judgment, for most of her life [Z] has spent no less than half her time in her Mother’s household.
Clearly the change of her living arrangements into the primary care of her Father will lessen the time that she spends with her Mother.
Because of the consistency and stability that this will bring into [Z]’s life, this however can only be seen as a positive for [Z].
Further, as noted by Ms Shing, if the transition is handled positively and sensitively by her parents, the adjustment for [Z] will be much easier.
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
The proposed changes will reduce the practical difficulties for [Z], especially in relation to [Z]’s ability to attend school on a regular basis.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
In many ways, this section goes to the crux of this matter.
It is apparent from the evidence that the Mother is unable to fully meet [Z]’s emotional and intellectual needs as evidenced by her inability to ensure that [Z] regularly attends school, and to actively engage in [Z]’s ongoing counselling.
By contrast, the Father has fully embraced [Z]’s needs, particularly in relation to her learning difficulties and the positive progress that she is making in this regard can primarily be slotted home to him.
The Paternal Grandmother is also a significant contributor to [Z]’s life in this regard.
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
Not relevant.
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;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The concerns in relation to the Mother’s attitude to the responsibilities of parenthood are well documented in this judgment.
She has failed to ensure [Z] regularly attends school. Of greater concern, she fails to acknowledge any responsibility for this and that such behaviour has impacted negatively on [Z] in any way.
By contrast, the Father has fully embraced [Z]’s needs and considered it a privilege to be working with her to address these issues.
Both parents however need to take on board the importance to [Z] of them learning to explore ways to communicate with each other about [Z] so that [Z] is able to feel that both of her parents are working with her towards a better future.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
Not relevant.
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
Not relevant.
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
Not relevant.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
It was the Independent Children’s Lawyer’s submission that whilst the scratching incident was of concern, there was no real risk of physical harm to [Z] whilst in her Mother’s care.
The Independent Children’s Lawyer submitted that in relation to any allegations concerning the current state of the Mother’s mental health, there was no need to make any findings other than it is currently being properly managed and is under control. I agree with this submission.
The central issue is, the Independent Children’s Lawyer submitted, the need [Z] has for consistency in the household in which she lives and the need that her educational and emotional issues will be appropriately attended to. I also agree with this submission.
Accordingly, the Independent Children’s Lawyer was of the view that these needs could be best achieved in the Father’s household as he had the insight and commitment to ensure that [Z]’s needs in this regard would be properly met.
The Independent Children’s Lawyer was most concerned about the Mother’s lack of insight in relation to what was necessary for [Z], as well as her inability to accept responsibility for any of her behaviours that had impacted negatively on [Z].
The Independent Children’s Lawyer submitted the real issue was the amount of time that [Z] spend with her Mother, and was of the view, contrary to that of Ms Shing, that there was no issue with [Z] spending overnight time with her Mother and sister, and that this should take place each alternate weekend from after school Friday to 5.00 pm Sunday. It was submitted that anything less than that, particularly after the lengthy periods of time that [Z] was used to spending with her Mother, would not be in her best interests.
In relation to the school holidays, the Independent Children’s Lawyer proposed that in the upcoming holidays, [Z] spend two or three days with the Mother each two weeks out of three and thereafter there was no real reason why she could not have half holidays from the commencement of the term holidays in 2009.
Sub-section 60CC(4) and (4A)
Sub-section 60CC(4) and (4A) of the Act provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
It has been set out earlier in this judgment, the lack of involvement that the Mother has taken in relation to some of the major decisions in relation to [Z], particularly relating to her education and her involvement in counselling.
Again, as set out previously in this judgment, her explanations as to her failure to do this are self-serving and are indicative of her inability to accept responsibility for these failures.
Conclusion
In considering the best interests of [Z], I am of the view that it would be in her best interests to live in the primary care of her Father and to spend time with her Mother and sister each alternate weekend, during holiday periods and on other special occasions.
I am also of the view that it would be in [Z]’s best interests that her Father have sole parental responsibility for making decisions in relation to the major issues in [Z]’s life.
In forming this view, I am satisfied that the Father is best placed to provide [Z] with the stable, consistent and settled home environment that she needs to develop to her maximum potential.
I am satisfied that the Mother’s lack of insight into [Z]’s needs, her inability to put [Z]’s needs ahead of her own and her refusal to communicate with the Father are such that it is in [Z]’s best interests for the Father to have sole parental responsibility.
I am also satisfied, that the Father will ensure that all [Z]’s special educational needs are properly addressed and that he will conscientiously and actively contribute to the programmes and activities required by the educationalists assisting [Z].
Implicit in this decision, is the outcome that [Z] will continue to attend G Primary School for the remainder of her primary school education.
Whilst there is no doubt that the Mother loves her daughter, she has been unable to place [Z]’s needs above her own to the detriment of [Z]. Additionally, she is unable to acknowledge the responsibility that rests on her for the decisions that she has made, particularly in relation to [Z]’s schooling and [Z]’s counselling that have not been in [Z]’s best interests.
In relation to the time that [Z] spends with her Mother and sister, I do not accept the Father’s proposal or Ms Shing’s recommendation that such time be limited to daytime only. [Z]’s relationships with her Mother, sister and extended family are very important to her and she should be able to spend the whole of every second weekend in that household.
This transition for [Z], as Ms Shing noted, will be much easier for her if her parents are supportive of the decision and it is explained to her in such a way that she feels the decision has been made in her best interests, and not as a criticism of either of her parents or their love and care for her.
It is pleasing the Independent Children’s Lawyer has arranged for the explanation of these orders to [Z] to be made with the assistance of
Ms S.
Finally, it is also going to be very important for [Z] that both her Mother and Father are actively involved in all the aspects of her life. Whilst I have made an order for sole parental responsibility, orders are also being made that ensure that the Mother is fully engaged in all the important aspects of [Z]’s life and it is incumbent upon her that she takes the opportunity to so engage.
Whilst it is a matter for the Mother as to whether she is prepared to attend [Z]’s sporting and schooling events, knowing that the Father will be there, she is encouraged to do so as this can only be in [Z]’s best interests.
I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate: Sarah Hession
Date: 17 December 2008