Stone and Menzies
[2015] FCCA 12
•13 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STONE & MENZIES | [2015] FCCA 12 |
| Catchwords: FAMILY LAW – Parenting – allegations of serious domestic violence by mother – denial of domestic violence by father – parental responsibility – consideration of evidence relating to possible rebuttal of presumption – determination on evidence that equal shared parental responsibility should be ordered – consideration of equal time or significant and substantial time – best interests of the child – determination to work toward equal time by graduated steps. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 60B, 60DA, 61C, 61D, 65DAC, 65DAE |
| Lansa & Clovelly [2010] FamCA 80 AIF v AMS (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Chappell and Chappell (2008) FLC 93-382 |
| Applicant: | MR STONE |
| Respondent: | MS MENZIES |
| File Number: | TVC 1188 of 2012 |
| Judgment of: | Judge Coker |
| Hearing dates: | 4-6 June 2014 |
| Date of Last Submission: | 6 June 2014 |
| Delivered at: | Townsville |
| Delivered on: | 13 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Keegan |
| Solicitors for the Applicant: | Purcell Taylor Lawyers |
| Counsel for the Respondent: | Mr Betts |
| Solicitors for the Respondent: | Dillon Bower Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Fellows |
| Solicitors for the Independent Children’s Lawyer: | Greg Pohlmann Solicitor |
ORDERS
That the Mother and the Father have equal shared parental responsibility for the major long term issues of the child, X born (omitted) 2007, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision
That notwithstanding Order 1 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with him.
That the child live with the Mother and the Father in accordance with orders (a) through (d):
(a)Until 30 April 2015 with the Father from after school Thursday until before school Monday or Tuesday, should the Monday be a public holiday in each alternate weekend, and at all other times with the Mother;
(b)From 1 May 2015 until 31 August 2015, from after school Thursday until before school Tuesday in each alternate week and at all other times with the Mother;
(c)From 1 September 2015 until the commencement of the end of Term 4 school holidays, from after school Thursday until before school Wednesday in each alternate week, and at all other times with the Mother;
(d)From the commencement of Term 1 in 2016 to alternate each week from after school Friday until before school Friday in the following week.
That these orders be suspended during the gazetted school holidays and that each parent spend time with the child for one half of the school holiday periods, unless otherwise agreed as follows:
(a)With the Father for first half in odd numbered years and with the Mother for the second half in odd numbered years; and
(b)With the Mother for the first half in even numbered years and with the Father for the second half in even numbered years.
That the child spend time with the parent that would not otherwise have the child in their care on special days, and if not otherwise agreed, as follows:
(a)On the child’s birthday, if a school day, from the conclusion of school until 7.30pm or from 12.00 noon until 5.00pm, if a non-school day;
(b)On each of the parent’s birthdays, if a school day, from the conclusion of school until 7.30pm or from 12.00 noon until 5.00pm, if a non-school day;
(c)On Father’s Day and Mother’s Day, the parent who is having the special day shall spend time with the child from 9.00am to 5.30pm;
(d)On Christmas Day, if in the same locality:
(i)In 2015 and all odd years thereafter, with the Mother from midday Christmas Day until 5.00pm Boxing Day ;
(ii)In 2016 and all even years thereafter, with the Father from midday Christmas Day until 5.00pm Boxing Day.
That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:
(a)The first half of the gazetted end of Term 1 school holiday period shall be from after school on the Thursday preceding Good Friday until 6.00pm on the following Saturday;
(b)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to before school on the first day of the next term;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(c)The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from after school on the day which is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;
(d)The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until before school on the first day of the next term;
(e)The first half of the gazetted Christmas school holiday period commences from after school on the day on which school concludes until 6.00pm on the Saturday falling approximately 22 days later;
(f)The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until before school on the first day of the next term.
That each parent have the opportunity to communicate with the child at all reasonable times and in particular unless otherwise agreed, each Sunday and Wednesday between the hours of 6.00pm and 6.30pm with the parent not having the child in their care to facilitate the call to the parent having the child in their care and that parent to ensure the child is available to take the call in a quiet and private environment.
Should any changeover pursuant to these orders not be able to be effected at the child’s school, then unless otherwise agreed between the parents to be effected at the McDonald’s Family Restaurant, (omitted).
That the Mother and the Father shall:
(a)Keep the other parent informed at all times of their residential address and landline and mobile contact telephone number;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child; and
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.
That the Mother and Father authorise, by this Order, the school attended by the child to give each parent information about the child’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child.
That the parties are to agree on at least one extra-curricular activity for the child in each school term and to ensure that:
(a)The parents exchange information in relation to the extra-curricular activity, and
(b)When the child is in their care, that she attends as required at any training, lessons, or games.
That the process to be used for resolving disputes about the terms or operations of these orders shall be as follows:
(a)The parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
(b)They shall pay the costs of the Family dispute resolution Practitioner equally;
(c)In the event that they cannot agree on a Family dispute resolution Practitioner, the Mother shall nominate three practitioners and advise in writing details of their fees, experience and availability.
(d)The Father shall choose one of the listed practitioners within 7 days of receipt of the list;
(e)If the Father fails to choose then the Mother may choose.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Stone & Menzies is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT TOWNSVILLE |
TVC 1188 of 2012
| MR STONE |
Applicant
And
| MS MENZIES |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 2 November 2012, Mr Stone, whom I shall refer to as the father, filed an application in this court seeking orders with regards to the parenting of the child, X. X, born (omitted) 2007, is the child of the father and Ms Menzies, whom I shall refer to as the mother.
In the application filed by the father, orders were sought with regard to both final and interim arrangements in relation to parenting. The original application was returnable on 29 January 2013 and at that time, and on a number of occasions subsequently, orders were made with regard to interim parenting of the child X.
APPLICATIONS
The final orders sought by the father, however, were generally reflected in the orders contained with the final application of 2 November 2012. They can be summarised as follows.
·That the parents have equal shared parental responsibility for decisions to be made in relation to the long term care, welfare and development of the child.
·That the child live with the father and the mother on an equal time basis, calculated over a 14-day period to be divided seven days between each parent.
·That each parent have one half of the school holiday periods, coinciding with the Christmas school holidays but that otherwise each parent’s opportunity for time to be spent with the child continue to operate on a weekly basis during the end of term 1, 2 and 3 school holidays.
·That the parents have the opportunity to spend time with the child on special days, if in the same locality with each other.
·That each parent have the opportunity to communicate with the child at times when the child is not living with them.
·That the child be collected by the mother or the father or others authorised by that parent to or from school or if not on a school day, then the McDonald’s Family Restaurant at (omitted).
·That there be specific arrangements made with regard to exchange of information between the parties, including information as to the child’s medical circumstances, as well as information as to any change in respect of address, telephone number or other means of communication, as well as that the parties authorise medical practitioners and other health care providers as well as the child’s educational institutions to provide information to the other in relation to parenting arrangements.
·That each parent be able to participate in activities with regard to the child, including attendance at school or extra curricular activities as may arise from time to time as well as obtaining information from the child’s school with regard to the child’s progress or from obtaining photographs or other educational materials, prepared as a result of the child’s attendance at school.
·That neither party enrol the child in extra curricular activities which impact on the other party’s time with the child, unless agreed in writing.
·That the parties participate in dispute resolution before either were to make application to the Court for further orders in relation to the parenting of the child.
The mother’s response was filed on 20 December 2012. The orders that the mother sought in relation to parenting were detailed in her response and can be summarised as follows.
·That the mother have sole parental responsibility for major long-term decisions relating to the care of the child X.
·That the mother advise the father, in writing, of any long-term decisions to be made and consider the views of the father.
·That the child live with the mother.
·That the father spend time with the child at all reasonable times as may be agreed and, in particular, in each 14-day period from 5.30 pm Friday until 8.30 am on the following Monday in each alternate week and from 5.30 pm Friday until 5.30 pm Saturday in the other week.
·That special days, including Christmas Day be shared between the parents and that the child spend time with each parent on that parent’s birthday and that the child spend time with each parent to coincide with Father’s Day or Mother’s Day.
·That each parent have the opportunity to holiday with the child outside of the (omitted) area, which would then automatically suspend time to be spent with the child by the other parent, provided notice is given at least 30 days prior to the child taking holidays and that information is provided as to a means to continue telephone communication with the child whilst on holidays.
·That changeover occur, where possible, at the child’s school but that otherwise it occur at the McDonald’s Family Restaurant at the (omitted).
·That each parent be the first point of call for the other parent in the event of them not being available to provide the care for the child.
·That the parties exchange information as to address, telephone number and other means of communication within 24 hours of any change of such address, telephone number or communication address.
·That the parties ensure that the child continues to attend the (omitted) Medical Centre and that each party advise the other of any emergency arising in relation to the health and welfare of the child.
·That the orders operate as an authority to any care provider for the child, including school, medical practitioner, counsellor or other involved in provision of services for the child so as to provide information to the other parent regarding the child.
·That each parent be empowered to obtain information with regard to the child’s progress at school, day care or otherwise and that the orders authorise each parent to obtain such information from the school or otherwise.
·That each party be at liberty to attend the child’s school or extra curricular activities as may be arranged from time to time.
·That each parent be able to obtain other information, including copies of school photographs as may be arranged through the school.
·That the father be restrained and an injunction issued preventing him from taking the child to activities such as pig hunting or other sports involving the use of firearms and that neither party expose the child to domestic violence whilst the child is in their care.
An Independent Children’s Lawyer was appointed to represent the interests of X. The Independent Children’s Lawyer also provided proposed orders summarised in the case outline as follows:
·Commence equal shared parental responsibility at 1 January 2015.
·But in the meantime require the mother to consult with and take into consideration the father’s views in the event that a major long-term decision must be made.
·Child to live with mother.
·Child to spend time and communication with father each fortnight from Thursday afternoon to the following Monday morning plus:
(a)One week in each of the term school holidays;
(b)Half Christmas holidays to alternate between odd and even years so as to provide each parent with time on Christmas Day;
(c)The usual special days;
(d)Telephone time once per week.
·Make the usual orders as to exchange of contact details, access to school reports and information and so on.
It was noted that whilst the orders proposed by the mother were comprehensive, they did not make any provision for arrangements with regard to school holidays and, to that end, it was proposed that the father should have the opportunity to spend time with the child, X, for a period of up to one week in each school holiday period, it being noted that that was to be consistent with the recommendations of the report writer, Mr R.
It is noteworthy in that regard, however, that the report prepared by Mr R and which was relied upon in relation to these proceedings, was dated in February of 2014 and that it related back to the earlier reports of January 2014 and April of 2013. Those reports specifically made recommendations in relation to equal shared parental responsibility and from Easter 2014, for periodic or longer periods of time to be spent with the father commencing at the Easter school holiday break in 2014 and for one-week periods in each school holiday thereafter. It appears clear, however, that the recommendations of Mr R also acknowledged the need for there to be more significant periods of time spent with the child as she grew older and following the making of orders in relation to parenting. I shall come to the report of Mr R more fully in relation to this matter in due course.
THE EVIDENCE
Insofar as the evidence of the parties are concerned, as is almost invariably the case, their evidence is the most significant in relation to assisting with regard to any attempt to determine what might be the most appropriate arrangements to be made with regard to the parenting of a child or children.
However, as is also in most instances the case, a number of other witnesses have been called in relation to the provision of evidence supportive of one parent or the other. On the part of the applicant father, evidence was called from his partner, Ms K, as well as from his sister, Ms M, his mother, Ms H, and from a friend involved in his chosen sport of soccer, Mr D. Additionally, evidence was called on the part of the mother from her psychologist, Ms G, as well as her mother, Ms C, and from her father, Mr E. I shall address the evidence called from each of those parties shortly.
As I indicated, Mr R, a psychologist of some 34 or more years experience, was also called, having prepared a number of reports in relation to these proceedings.
THE PARTIES’ WITNESSES
The first of the witnesses called on the part of the father was his partner, Ms K. I refer specifically to her as the partner of the father, rather than the wife, because, although they bear the same surname, it was not a situation where the parties had married, though they were in a mutually exclusive relationship, and, at the time of evidence being taken, Ms K, was pregnant with the child of she and the father.
The evidence of Ms K in relation to this matter was most impressive. I found Ms K to be a witness of truth and honesty and in fact noted that I found her honest and eloquent and entirely believable. Ms K spoke obviously of the relationship that she had with the father. She was emphatic that the relationship described by the mother in her interaction with the father was entirely different to that which she experienced in her relationship with Mr Stone.
In particular, she noted that the father was “very supportive as a father” and that he would work with her in relation to arrangements with regard to the parenting of X when X was in their care. She was adamant that the father had never pushed her, and that whilst they had had arguments and she acknowledged that that had occurred, they were verbal disputes, that related to what might be called the less consequential matters in their relationship, such as issues with regard to the tidiness of the house or whether dishes had been washed or not.
Ms K was adamant that she had not been called insulting names by the father, that their relationship was a positive one, and that they were able to work together in relation to decisions to be made with regard to their relationship and, of course, in respect of the parenting of X. It was also noteworthy that Ms K indicated that there had already been discussions in relation to the future arrangements with regard to the parenting of the child of their relationship, soon to be born.
Ms K was asked about the alleged incident on 13 August 2013. She confirmed that she had not physically witnessed any exchange between the father and X but noted that, when she had spoken to the father at the soccer ground, that there was no concerns expressed by the father about X’s behaviour or, for example, the “state of the toilet as a result of X’s accident and having defecated in her pants”.
Ms K noted that the father appeared calm and had asked for her assistance, not because he needed that assistance as he was unable to deal with the issue that confronted him, but rather because of his obligations in relation to his sporting commitments and the need to go onto the field required some assistance being provided, so that he could meet those obligations. Ms K emphasised that the father did not mention that he was frustrated or angry and she observed nothing of that nature.
Ms K also acknowledged that she had heard X call out words to the effect, “Daddy, could you wipe my bum?” and that the father had simply attended to that particular task. She indicated that the father had not appeared in any way embarrassed by that and she did not remember any exchange between she and the father or the father’s teammates in relation to the need to attend to the child’s accident.
Ms K made reference to the relationship between the father and the mother and noted that the father had described his relationship with the mother to her as being difficult and that, whilst sometimes they were able to talk with each other, on other occasions, they were not able to talk. She also noted that the father had indicated that, in the relationship with the mother, they had “argued a lot” and there had been, at least to some small degree, physical exchanges between the mother and the father in that she acknowledged that the father had indicated to her that if he was trying to leave an argument or step away from an argument and the mother blocked his way, that he would push past her.
Ms K was an impressive witness. Ms K was, I thought, open and frank in her exchanges. She did not “gild the lily”. She acknowledged that there had been verbal disputes between she and the father. She acknowledged that the child may have heard some bickering between the two of them but that they were mindful of the importance of protecting the child from disputes between them. She was adamant that, when present with the father, she had never seen him react in any angry manner toward the child, for example, when there were difficulties with doing up a seatbelt or other issues of that nature and that there had been no really serious altercations between she and the father or exchanges between the father and X which stuck in her mind.
Ms K indicated that her communication and exchanges with the mother were generally positive and that they were able to talk about issues with regard to X and she acknowledged that her exchanges and communications with the mother were probably better than those between the mother and the father. Ms K was generally impressive in the evidence that she gave. It is noteworthy that, following cross-examination by counsel for the mother, counsel for the independent children’s lawyer only sought to clarify one point in relation to the evidence of Ms K and that related to her observations of the demeanour or state that X was in when she came out of the toilet after the father had attended to her needs.
Ms K was adamant that the child was “fine”. She was not upset at all. She was happy and playful and that she was comfortable with the father after he came off the field and Ms K played her game of soccer. I was enormously impressed with Ms K. I gained the impression that she was both a supportive partner but also an honest and frank witness. I was assisted by the evidence given by Ms K.
Also called on the part of the father was his sister, Ms M. Ms K had filed an affidavit in these proceedings, acknowledging that she and the father had resided together after the father and the mother had separated on the first occasion and that, after further attempts at reconciliation, the parties had resumed living together.
Ms M went on to note that there were difficulties in the relationship between she and the father, primarily relating to responsibility for the care of their respective dogs, but also noted that, after final separation, there were occasions when the mother attended at the residence occupied by she and the father at (omitted) and that there were exchanges between them. In particular, Ms K made reference to an incident in February of 2012, shortly after separation, when the father contacted her, indicating that the mother was present at the house and Ms K said that she was on the way home and arrived shortly thereafter.
She indicated that she saw the mother trying to enter through the side gate and that the mother had X with her and that there was an exchange between she and the mother in relation to what she was trying to do. Ms K suggested that the mother was agitated at that time and tried to push past her into the house, apparently to collect items. There was an exchange between the mother and Ms M involving some verbal exchange and some touching primarily when Ms M says that the mother was trying to push past her, but that, generally, there was little that Ms M could comment upon other than an apparent lack of fear certainly on the part of the mother during the exchanges that she saw between the mother and the father.
Otherwise, Ms M was able to comment favourably about her observations of the exchanges and interaction between the father and X and, also, between Ms K and X.
I was generally impressed with the evidence of Ms M in relation to this matter. She was questioned at length by counsel for the mother about her relationship with her father and she, frankly, acknowledged that there had been some difficulties in the relationship between the father and her but that they had dealt with such issues. She was asked about the father’s gambling and drinking and acknowledged that he did drink and did gamble, but she was unable to comment as to the extent of those behaviours, on the part of the father.
Generally, the evidence of Ms M was of a positive nature in relation to both of the parents. She did not seek to damn the mother in her statements, acknowledging that, at least from her assessment, the mother appeared to be a “closed-off person” and that there was no real bond between them and that they were not close. She did, however, repeat on a number of occasions that she did not see the father push the mother and that it was the mother who was determined to enter into the father’s residence at the time that she was seeking to collect the items of property, which she says were hers or the property of the child. I accept the evidence of Ms M in relation to this matter.
Additionally, I had the opportunity of hearing evidence from Ms H, the paternal grandmother of the child. Ms H filed an affidavit on 15 April 2014, which indicated not only the reference back and confirmation of the context of earlier affidavits that had been given but, also, her regular interaction with the father and her granddaughter on most Saturday afternoons. She indicated that she was not able to observe anything in respect of the interaction between the father and X, which gave rise to any concerns as to the child’s wellbeing.
She observed, she said, the close relationship between X and her father and the positive nature of the interaction that they had with each other. She noted in her affidavit, however, that there was one occasion in January 2012, following separation, when she was attending to the care of X and at about 11 pm there was a knocking at her door and it appeared that the mother was present, indicating that she had arranged with the father to pick X up. Ms H indicated that she was concerned at that suggestion because she did not believe that any arrangements had been made in that regard, but rather than enter into dispute handed the child to the mother.
Ms H noted that the mother’s attendance at the home was late in the evening, that X was asleep and that there appeared no pressing need for the child to be collected, other than the mother’s insistence.
Ms H was cross-examined by counsel for the mother in relation to a number of instances of exchange between she and the mother. She was asked whether there were any observations that she could see which gave rise to concerns about the mother’s care for the child, particularly when the relationship was ongoing. Ms H impressed, in particular, in that she did not for a moment suggest there was anything inappropriate in the care provided by the mother and indicated that, in her assessment, she was a normal young mother.
She indicated that there were no suggestions apparent to her that the mother was suffering from depression. Whilst she said that the father had made certain complaints about the mother not attending to the various household chores, she had not observed them on the occasions that she was present.
The paternal grandmother acknowledged that the father had expressed certain concerns to her about the mother and her failure to perform certain chores within the household. She was asked, particularly, whether the father had suggested, for example, that the mother might have been suffering from postnatal depression and she indicated that such a suggestion was not necessarily made by the father but that there were concerns about the mother’s behaviours, generally, within the relationship and that, perhaps, as a concerned grandparent Ms H had suggested, simply, that the father “give her time”.
I was generally impressed with Ms H. She gave me the impression that she was a willing participant in the proceedings but, also, an honest witness not seeking to provide glowing evidence, in relation to the father, but rather to reflect what she observed in relation to a young couple experiencing certain difficulties with regard to the parenting of the child.
Ms H acknowledged that she was aware of the fact that the father would, on occasions, take a drink and gamble. She was unable to comment upon the extent of those behaviours on the part of the father. Generally, as I say, Ms H impressed me as an honest and open witness and one who sought, determinedly, to be honest in the evidence she gave. Her final answer in relation to a query raised by me about her comment with regard to giving the mother time was impressive. I asked her whether she was concerned that the mother simply may have been overwhelmed, emotionally and physically, with the effects of parenting a young child and Ms H indicated that she did not think that that was necessarily the case and went on to say words to the effect, “she was lovely to the child”. I thought Ms H was an open and honest witness in relation to these proceedings.
Also called in relation to the matter was Mr D. Mr D being called in relation to proceedings related specifically to the incident which is, in many respects, the crux of the dispute in relation to these proceedings. The mother alleges that a complaint was made by the child to her regarding the father having physically disciplined the child following her having soiled her pants at the soccer field.
Mr D’s evidence in relation to the matter was to the effect that on the day in question, there was a soccer game being played and the father was participating in that soccer game. He recalled hearing X call out from the toilet cubicle that she needed her dad and that the father had attended at the toilet cubicle with her, that the door was closed and a minute or two later, he came out with X and took her to an area where food was being prepared. Mr D did not note any evidence of upset on the part of X and, certainly, he did not notice her crying or being in a distressed state.
He also indicated that he subsequently saw X playing with other children and generally enjoying herself at the soccer game whilst the father and Ms K participated in their games. Mr D acknowledged that he knew the father and that, whilst not particularly close, they had interacted over the years in relation to their involvement in the soccer teams that they both were involved with.
He noted, in paragraph 15 of his affidavit, the observations that he had made of Ms K and noted her to be “a lovely person and, again, I have never seen anything in her relationship with X which has caused me any concern”.
Mr D was cross-examined by counsel for the mother in relation to that incident. Interestingly, there appeared to be something made of some closeness in the relationship between the father and Mr D and, by inference, a suggestion that the evidence of Mr D may not have been fully frank or honest in relation to the statements made with regard to the father’s attending to the needs of the child. The only real questions that related to that incident, however, were whether Mr D heard X call out to her father for assistance and Mr D indicated that he had and whether Mr D had heard other players calling out and, perhaps, teasing the father about needing to attend to X’s needs. Mr D indicated that he had not heard any calls made by other team players to the father, but did not deny that they may have been made, but simply that he didn’t hear them.
I was impressed by Mr D. I thought he was an honest witness and in no way was there any suggestion that there may have been anything inappropriate in his evidence or, more particularly, anything which would give rise to concern as to the father’s dealing with the child on the afternoon of the soccer game and of the child’s accident in soiling herself at the game.
Also called on the part of the father but not required in relation to giving evidence was Ms S, Ms K’s mother, and Ms J, Ms K’s aunt. Both made reference to concerns expressed with regard to issues of domestic violence. Their evidence was unchallenged and I accept it in relation to matters that were referred to. In particular, I note that Ms S indicated that she had observed nothing of a nature which would give rise to a concern by her as a caring and involved mother of issues of domestic violence between Ms K and the father.
She emphasised that Ms K would have no hesitation in telling her of any such behaviours and emphasised, and I accept, that she would not tolerate any such abusive behaviour on the part of the father. She noted that she and Ms K work together and that as a result of working together and socialising, that they have a close relationship and one in which there would be no possibility of hidden incidents of domestic violence.
I accept the unchallenged evidence of Ms S in relation to this matter, particularly with regard to her observations of the relationship between Ms K and the father and between Ms K and X.
Insofar as the evidence of Ms J is concerned, again, her evidence was unchallenged and I am satisfied that her observations of the father’s relationship with X, as well as the relationship with Ms K are positive and do not give rise to concerns. Additionally, I note that she specifically makes reference to being present at the soccer games, though not that of the 3rd-4th August 2013, but that she had seen nothing which gave rise to any concerns as to the relationship between X and either Ms K or the father. I accept the evidence of Ms J given in relation to these proceedings.
On the part of the mother a number of witnesses were called including both her mother and father and Ms G, the mother’s psychologist. Insofar as Ms Menzies’ family were concerned, Mr E had filed affidavits in September of 2013 and also just prior to the hearing in May of 2014. Mr Stone indicated that the mother and X had returned in recent times, in other words, in or about April/May of 2014 to living with he and his wife and that his observation of the child, particularly following occasions spent with the father were not of a positive nature.
He noted, in particular, that after some weekend visits he inquires of X, whether she had a good weekend, but that the child does not talk about her time with her father and is never enthusiastic or excited.
Mr E went on to make comments relating to statements that he says were made by X which could only be, he suggests, a reflection of statements made by the father. They included suggestions that the mother was “fucking hopeless, fucking stupid”, as well as a question generally directed to her of, “What sort of mother are you?”.
It was noteworthy, however, that Mr E in paragraph nine of his final affidavit filed 6 May 2014, made reference to statements that he says were made by X about the father “hitting mummy” and on one occasion “throwing toys at mummy”. Mr E was not cross-examined in relation to this particular aspect of the matter and it must be recognised that it was somewhat troubling that such direct statements of family violence, as defined under both the State and Commonwealth legislation, would not be challenged in relation to such direct evidence given.
Mr E was cross-examined about some issues in relation to the family and whether he was upset when he saw the mother upset. He acknowledged that was the case but, by the same token, whilst the mother was unwell, and that appeared to be acknowledged by Mr E, there was nothing that would suggest that such concerns, as expressed by the mother in relation to domestic violence or fears of the father, were anything other than, at least from the mother’s perspective, a genuine expression of her concern.
Mr E’s evidence did not take me far in relation to this matter but certainly confirmed the concerns that arose in relation to the mother from a perspective of the paternal grandfather.
Additionally, Ms C gave evidence in relation to these proceedings. Ms Menzies filed three affidavits. The first on 20 December 2012, the second on 16 December 2013 and the final affidavit filed on 6 May 2014.
Ms Menzies made reference to concerns with regard to the behaviours of X and noted in particular that X would not “go to the toilet on her own” ever since the incident in August of 2013. Ms Menzies made reference to X asking her mother to accompany her to the toilet and went on in paragraph four of her trial affidavit to say, “I know that X is scared of Mr Stone but still loves him. I can see that X is scared of doing the wrong thing and getting her father upset”.
Ms Menzies made reference to the fact that she and X have, on occasions, referred to the incident reported by X on the evening of 3 August 2013 and Ms Menzies goes on to note that she is “certain that the incident happened” and that she is sure that X was frightened by Mr Stone when he became angry.
Ms Menzies made reference to various other exchanges between she and X and, in particular, notes at paragraph 14 as follows:
About two (2) weeks ago I heard X say “I’d rather be dead than go back to Dad’s”. X then explained that Ms K had been nasty to her. Both Ms Menzies and I encouraged X to work it out with her father and Ms K. X said that she could not speak to her father about it and we suggested that she write him a letter if she felt she could not speak to him.
I am troubled by that particular statement in relation to this matter, because it flies in the face of every piece of evidence that is available, particularly with regard to the interaction between Ms K, and X, and of course what is perhaps more troubling is that with a child of such tender years, it is being suggested that she write to her father with regard to her concerns.
This little girl was born on (omitted) 2007 and has only just turned seven years of age. She was six at the time that such a suggestion was made and it flies in the face of what could properly be considered to be appropriate parenting or caring and concerned interaction between a grandparent and a child. The much more appropriate course would have been to raise the issue as an adult with another adult but that appears not to have occurred, but rather for there to simply be a blind acceptance that the child’s statements, particularly with regard to Ms K, were correct because the child said them.
Ms Menzies was cross-examined about many of the issues that she referred to in her material and made reference to the issue of domestic violence. When asked whether, after various statements were made including suggestions that the father had been physically violent towards the mother, she had suggested that the mother deal with issues of domestic violence, she responded that she had, in a “roundabout fashion”.
When asked to explain what a roundabout fashion meant, she indicated that initially the matters that had been referred to by both the mother and X on different occasions sounded like controlling behaviours, but that only X had made passing reference to the father hitting the mother.
There were also issues about the behaviours of the father generally. Ms Menzies indicated that many of the matters complained of by the mother were indicated to her by the mother, but that she had not seen physical violence, though she had, she said, witnessed what she considered to be controlling behaviours on the part of the father. Ms Menzies indicated, more particularly, that she had told the mother to ring the police and to have the father charged. She said that she made that suggestion following the first occasion that the mother indicated that she had been physically struck by the father.
I accept, generally, the evidence given by Ms Menzies in relation to this matter. I am satisfied, of course, that she is a caring mother of her daughter and that she would seek to act protectively in relation to her. I should indicate, however, that I am a little troubled by the absolute reliance placed upon statements made by this little girl without, if you like, proper corroborative inquiry being made, particularly, for example, in circumstances where it is suggested that Ms K has acted in any manner inappropriate with regard to the child. None of the evidence available in relation to these proceedings would suggest that that is a proper or legitimate concern that might be held with regard to the child.
I turn, then, to the evidence of Ms G. Ms G is a psychologist and has prepared a report in relation to her attendances with the mother. She notes in her report dated 12 May 2014 that the mother has attended with her, it would appear, until the time of trial on about five occasions between June of 2013 and April of 2014, though the dates need to be clarified in relation to such matters.
It was noted by Ms G in her report that the mother engaged in each session well and presented as open and forthcoming regarding her life circumstances and that she discussed issues relating to reports of domestic violence in her relationship with the father in these proceedings. Ms G observed, she said, the following:
·That there were physiological reactions when exposed to reminders of the trauma (shallow breath and appearing pale);
·Visible dissociative symptoms of trauma (looking ‘stunned’ or ‘glazing over’, fixed gaze);
·‘Flooding’ from the abovementioned physiological arousal that interrupts the normal process of recall (stopping speech mid‑sentence then requiring clarification of where she had been in the conversation, attempting to continue conversation and no words coming out, eyes becoming red/teary);
·Active thought suppression to avoid traumatic memories (closing eyes and slight shaking of the head, being unable to continue); and
·Overt signs of distress when discussing safety concerns for her daughter (crying, breathlessness, fidgeting).
Ms G went on to note that the intensity and nature of the stress reactions were, as she put it, congruent with the topic discussed. Ms G noted in her short memoranda of 12 May 2014 that the predominant volume of referrals made by the mother to the father were in regard to X’s physical and emotional wellbeing. She went on to note, however, as follows:
I did not observe Ms Menzies to become teary or upset when discussing leaving that relationship, nor did I witness any obsessive thoughts related to the loss of that relationship (such as discussing the same topic repeatedly, deliberating on small details in regard to the breakdown of that relationship, focusing on/obsessing about his new partner).
Ms G acknowledged that she was unable to comment in depth about the nature of the recommended interaction with X’s father because of the limited information that she had but that she noted that any interaction with the father is:
...likely to evoke some level of anxiety for Ms Menzies until a history of amicable interactions has been established.
Ms G was questioned about various issues arising both from her brief memoranda and from her clinical notes. Ms G was particularly asked about the effect upon the mother of circumstances that might exist where the mother alleges strongly that there was a domestically violent relationship between she and the father but that the father denies absolutely that domestic violence had occurred. Ms G, in answering that question, made reference to the fact that, if the perpetrator will not admit domestic violence, if it occurred, then it was important from the perspective of the victim of domestic violence to be acknowledged as there needed to be a validation of the domestic violence, before healing could start.
Ms G was questioned by counsel for the father about her interaction with Ms Menzies. Ms G, in particular, noted that if, as she suggested, the mother suffered from depression, then there would be certain difficulties that would arise cognitively on the part of the mother because, as she said, the mother would have difficulty in absorbing information and storing information. It would, therefore, as she acknowledged, affect her ability to interpret the interactions between the mother and the father.
Counsel for the independent children’s lawyer, perhaps more specifically, directed Ms G to the concerns that must be before the Court, relating not only to the mother and her capacity to provide for and to meet circumstances in relation to the child but also to assessing how the relationship between the father and X and the mother and X as well as, of course, incidentally, the relationship between the mother and the father, could be improved.
He inquired, for example, what Ms G’s position might be if, as he put it, “the evidence is that day to day, there is no risk to X in the father’s house”. He asked what steps might be taken to assist the mother to support X’s relationship with the father. Ms G noted in that respect, that her observations were that the mother wants X to have a healthy relationship with the father, but that she wanted it upon the basis that the father completed the MenTER program and that she saw that as a difficulty, for example, in the mother not having her concerns “properly addressed”.
Ms G was obviously appearing as a professional treating her patient and was mindful of the need to accept her patient as she presented and to deal with issues as suggested existed, by the mother. I directed to her a question in relation to what the mother might do if, for example, the Court were to find that incidents of domestic violence had occurred but that they were not as severe as painted by the mother. Ms G said that she had some difficulties in responding to that particular aspect of the matter, but noted that if domestic violence had happened, whether of a more serious or less serious nature, to have it pushed out of the way or disregarded, would cause some difficulties for the mother.
She went on to note particularly, that the mother’s reactions and behaviours did not match a suggestion of less serious domestic violence, and Ms G noted also that, if such a finding were made, it would “invalidate the mother’s concerns” and would lead to some difficulties with the relationship.
It was also noteworthy that Ms G acknowledged that there may be some contradictions in the evidence before the Court. In that respect, I asked her specifically about issues with regard to domestic violence, if it was suggested, as appears clear from all of the evidence, the child was thriving in her relationship with the father. Ms G noted that it would be, as she put it:
...contrary to commonsense for the child to have thrived if the child had witnessed domestic violence between the mother and the father.
Ms G indicated, however, that it was, of course, difficult for her to have any professional view when she had only had the opportunity for a one or two‑hour consultation in relation to the matter. I was generally assisted by the evidence of Ms G, not in respect of any specific finding as to domestic violence having occurred, but in recognition of the obvious need to consider the issue of domestic violence in the relationship, at least insofar as the mother’s perception of domestic violence having existed and, therefore, how it may have affected the mother. Ms G’s evidence in that respect was of particular assistance.
THE PARTIES
I turn then to the evidence of the parties to these proceedings. I should commence, of course, with the general indication that I have no doubt as to the love of these parents for this little girl, and more particularly, no doubt whatsoever as to the relationship that X has with each of the parents and the importance and positive nature of that relationship. That is not to say, however, that there are not concerns that arise in relation to both of the parents. I do not, however, intend to take a systematic and long-winded approach in relation to issues with regard to each of the parents. Rather, I intend simply to comment upon some of the inconsistencies, or difficulties, that I noted, in relation to the behaviours of each of the parents.
Insofar as the father was concerned, I have no doubt that his perception is that there has not been physical domestic violence between he and the mother. What troubled me, however, was that the father failed to appreciate, even when given the opportunity overnight to consider the questions that were asked and the answers that were given, as to whether there might have been family violence, as defined within the Family Law Act. In particular, the father seemed to fail to recognise that if he “pushed past the mother”, when she blocked his way, that there was a physical altercation between them. If it were not a punch thrown, the father was not of the view that there was domestic violence.
Early on in his evidence, he was asked what domestic violence was, and he responded, “Someone who beats their partner.” The father had, with respect, it would seem a limited grasp of what could constitute domestic or family violence, particularly in circumstances where other behaviours by one parent or the other could just as easily be seen to be as damaging, at least emotionally or psychologically, as a physical altercation between parties to a relationship. The father could not fathom that anything other than a physical altercation of a determined and direct nature could constitute domestic violence.
The father, for example, could not recognise that there were controlling behaviours arising from his actions, which caused concern for the mother. To criticise her household finances and to say that bills had not been paid, when the clear indications were that the father had, on occasion, gambled to a very significant extent, losing very large amounts of money, but then suggested that the mother was the one who lacked the appropriate financial skills was damning of the father, both insofar as his lack of appreciation of his own failings, but also insofar as his lack of understanding of how that would demean and hurt the mother.
Similarly, the father’s very clear suggestions that the mother had a “problem with the pokies” and that she gambled so heavily that he had to complain to her mother, flew in the face of the obvious evidence which was available in relation to the father’s spending on gambling on horses and other betting. When asked whether he might have accepted that that was “the pot calling the kettle black”, he indicated that he did not think that that was the case, and that he saw nothing wrong with his spending of money, when it was the case that the mother had money specifically required to be utilised for other expenses.
The father had no appreciation of the effects of his behaviours upon the mother, and unfortunately, it would appear that he, even at the time of the hearing and after these matters were raised with him, still could not appreciate the difficulties that arose.
By the same token, the father was adamant that his relationship with the mother was not as difficult or hurtful as she had suggested, and more particularly, he was absolutely adamant that his relationship with the child was of a positive and appropriate nature.
The father acknowledged that the parents argued. He acknowledged that there were difficulties, particularly with regard to money, though he failed, in my assessment, to appreciate that there were many instances where his behaviours were as bad, if not worse, than anything alleged in relation to the mother, and that his spending of money, which could have been more appropriately utilised toward household expenses, was an issue for him to deal with.
However, the father remained calm and composed. The impression that I gained was that there were different perspectives adopted by the mother and the father, in relation to the exchanges between them. The mother would have seen her standing in front of the father and being pushed past as a physical assault, whilst the father simply saw it as a means to an end, his way of disengaging in the argument between them.
The father said that he did not generally lose his temper, though he agreed that on occasion he did, and that on occasion both parents were fired up. He denied absolutely that he had ever punched the mother, and I must say that I was generally accepting of that statement, particularly when I found the evidence of Ms K so convincing in respect of the relationship that they have.
It may be that the father has matured, and that his capacity to deal with a relationship, a young child, and issues within the family are simply improved, or that he and Ms K are much more of a similar mind, and therefore able to ensure that their household was run on a more agreed basis. But I am certainly satisfied, that whilst there may have been exchanges between the father and the mother, particularly of a verbal nature, and perhaps of a circumstance where they brushed past each other, I am not at all, on the evidence available, of the view that there was a seriously domestically violent situation, though under no circumstances would I condone or accept the father’s behaviours in any respect towards the mother as being acceptable or appropriate.
The fact is that the parties had different views of what existed between them, and that was a difficulty, but it was only one of the many difficulties in respect of their relationship.
The father and the mother have disputed what should be appropriate in relation to the father’s time to be spent with the child. I was able to consider the evidence of all who, to varying degrees, were involved in the circumstances that arose at the soccer ground on 3 August 2013. The view that the mother has, in relation to what occurred on that day was that the father lost his temper, became enraged with the child for soiling herself, and injured the child. Apart from the statements made by the child, and I must say that they are troubling, there is not a skerrick of evidence to suggest that the father did anything other than attend in an appropriate and proper manner to the needs of the child.
I am certainly not of the view that the father acted in any way which was a risk to the child, or of harm to the child. He may certainly have become a little frustrated in circumstances where he was anxious to get to his soccer game and to prepare for the soccer game, but that is not in any way something that would give rise to a concern as to the welfare or wellbeing of the child.
In that respect, I note also the evidence of Ms K and of Mr D in relation to what they observed, and I am satisfied that there was nothing that gave rise to a possibility of the father acting in an inappropriate or improper way with regard to the child, and certainly not in a way which would lead to physical or, I would think, emotional harm to the child.
The father generally impressed me in relation to his determination to be involved in all respects to the life of the child, and to ensure that he was able to be involved in X’s life.
The father was also cross-examined by counsel for the independent children’s lawyer. He was asked about many of the issues that were raised by counsel for the mother, and I gained the impression that there may have been some dawning of appreciation of the double standards that he applied with regard to the financial affairs of the household when he was taken specifically to issues with regard to drawings made by him from an ATM at a hotel, and the spending of significant amounts of moneys on various days.
Generally, however, the father gave the impression in his evidence of a man who perhaps only in recent times fully appreciated the role that was required to be played by him as a parent, and the need to involve himself in all aspects of the child’s life. There was also obviously a dawning of recognition on the part of the father that some of his attitudes, certainly displayed towards the mother with regard to household chores and the like, were unreasonable.
In an exchange between he and counsel for the independent children’s lawyer, when talking about the state of the house and his reactions if it were not tidied or cleaned to the level that he required, he indicated that it did not really matter if the house was a bit messy, but then he went on to note it was hard for him to come home and then have to do “all of the chores.” He then went on, when considering such issues, to acknowledge that there were “little arguments” between he and the mother, and that sometimes when he came home under the influence of liquor, that there were other arguments. He also noted that:
On occasion the mother would not be home, and things would be lying around, and so I would go out and do things I wanted.
It showed a particular immaturity on the part of the father, in suggesting that it was not his job, and that the mother had not performed her tasks within the household, so that he would be entitled, then, to go out and to do other things that suited him. The fact is that there was a degree of immaturity on the part of the father that was evidenced in a number of exchanges between he and counsel, but reflecting on the early years of the relationship between he and the mother.
It was noteworthy, however, that the father had given particular thought to the importance of X being involved with both of the parents. Counsel for the independent children’s lawyer specifically made inquiry of why it would be better for X to live on a week-about basis with each parent as the father suggested. The father responded with words to the effect:
I’m a positive role model. We (Ms K and I) are involved in all things at our home with the child. She’s involved in cooking, scrapbooking, and interacts with other children at sport.
He then went on to mention how much he loves the child and she loves him, and that they display and show lots of love and affection to each other. The father also noted that X missed out on various family activities when there were only limited opportunities to spend time with him and, as he put it, his hope was that she could spend more time with he and Ms K, so as to develop the relationship between the two of them.
The father impressed me in respect of his more recent development of maturity and I should note that to some significant degree, I would think that is a reflection of the very significant and positive nature of the relationship that exists between he and Ms K. I generally found the father an impressive witness and one who was obviously concerned with ensuring the positive nature of the relationship with the child.
The mother, also impressed me in these proceedings. She was concerned for the child and no doubt sought to ensure that the child’s best interests were met in all respects. However, I was concerned as to the mother’s attitude to the importance of the relationship with the father. Unfortunately, I gained the impression throughout her evidence that she “talked the talk” in respect of the importance of the relationship with the father and, of course, others significant from the father’s side of the family but that she was not prepared to “walk the walk”.
When asked, for example, what might be the best arrangement that could be put in place with regard to the father’s time to be spent with the child, she simply indicated that all visits should be supervised until the father “has had help”. She was not able specifically to indicate what that help might be, other than to suggest that it might be assistance provided through Relationships Australia and, of course, there were other references to the MenTER program but otherwise the mother’s recurring theme, saying it on a number of occasions during the evidence, was that X loved her father but that the father needed help.
At one stage, rather troublingly, the mother also suggested that X needed help, saying words to the effect, “That little girl needs some help. She is not well.”
When asked whether it might be more appropriate to focus on her circumstances, her perceptions and the way that that affects the child and the child’s opportunity for relationship with the father, the mother became distressed. She was unable to answer the direct question whether she considered that she was not well and that there might be a need for her to address issues in relation to her own attitudes, rather than suggesting that the father might need to receive help.
The fact is that the mother experienced difficulties. She was attending with a counsellor and there were issues with regard to her relationship particularly with the father which flowed through to her capacity to foster the relationship with the child. I gained the distinct impression, unfortunately, that the mother was, to some extent, troubled by the closeness of the relationship between the father and the child and that therefore there was a need for the mother to act overly protectively and, of course, as was the case on 3 August 2013, to listen closely and react in the extreme to suggestions on the part of the child, that she had been in some way inappropriately dealt with by the father.
I was troubled by the mother’s willingness to accept the statements made by the child in relation to this matter and to immediately seek to suspend time. The mother’s reaction was designed, unfortunately, though I do not think with any malice or forethought, to meet the mother’s needs to reduce and to draw back on the relationship between the father and X.
The mother, in my assessment, had certain difficulties of her own. She was attending with Ms G and had seen the reports prepared by Mr R and his recommendations that included suggestions of a need for her to attend personal counselling. She had seen the ongoing references to the need for a relationship to be fostered and developed between the father and X and, in particular, the need to continue attendance by her for psychological treatment. Notwithstanding that and of course it was the case that the mother was having treatment, the impression that I gained was that the mother still struggled with any suggestion that the relationship with the father was important.
During cross-examination, the mother was asked about the reports and the recommendations made by Mr R on various occasions. She was asked quite directly whether she was happy with the recommendations and she replied, “No.” When asked whether she had any trust in the professionalism of Mr R, she indicated, “Yes,” but, “I'm X’s mother. He only saw her for a half hour. She was scared to return to her father without a jacket recently”.
In my assessment, the crux of the difficulties in relation to this matter, is that Ms Menzies, as the child’s mother, considers that she is the font finally of all knowledge as to what is in the best interests of the child. She would appear to be unable to accept that X might tell tales, that she might exaggerate or simply make up stories and she might tell the mother what the mother wanted to hear.
Her suggestion that she is X’s mother indicates an inability on her part to realise that there is also a father and that there is significance in the relationship, particularly in circumstances where the mother’s and the father’s relationship is one that needs clearly to be considered.
Interestingly, as questions went on in relation to the mother’s comfort with the time at all being spent with the father, she denied absolutely that the child might be afraid or unwilling to tell her that she was having fun with the father or any suggestion that the child picked up on her own anxiety, in respect of interaction with the father.
Again, at the crux of this matter was the fact that when asked whether she liked X spending time with her father, the mother did not answer the question. She simply said, “She needs her father in her life,” which is, of course, an entirely different answer to the question that was asked, whether she liked or wanted X to spend time with the father.
In my view that was a matter of particular significance. With the attitude and approach of the mother, I must say, that unfortunately, my impression in relation to this matter, was much more that the difficulties that the mother says exist in respect of the interaction between the father and the child, are more a reflection of the mother’s concerns and anxieties than in any way a reflection of the difficulties in the relationship between the father and the child.
The mother was quick to refute such a suggestion and to deny that any increase in time would be a concern for her and would affect her ability to cope. She suggested that it really related to the child, but my impression was that the mother indeed had difficulties which needed to be addressed by her, in relation to these proceedings.
Counsel for the independent children’s lawyer cross-examined the mother along similar lines to those which were the subject of cross-examination by counsel for the father. There was, however, a slightly different thrust in the cross-examination, on the part of the independent children’s lawyer. There was a determination to more completely examine the reasons for the mother’s attitudes.
She was asked about her desire for sole parental responsibility and for limitations on time being spent. Interestingly, when asked about her suggestion of the father only having supervised time, until such time as “he got help”, the mother was evasive, in respect of answering the questions, but rather made reference to being “a bit upset”.
She acknowledged however that the weekend time spent by X with her father had gone well but, again, it was a limited concession in that she acknowledged that that was only “of late” and when asked whether in her own head, she could accept that there was no real need for supervision, her response was immediate and indicated that the father was unpredictable and therefore she suggested that he could not have the more extensive opportunity for interaction with the child, that was proposed.
When asked whether it might be a situation that changed, for example, when X got a little older, the mother reverted to the same answers that she had given in relation to the current circumstances. It was necessary for the father to “get help”, before there could be an increase in time and when counsel for the independent children’s lawyer challenged her about the use of that particular term on numerous occasions and inquired whether it meant in dealing with issues of domestic violence, the mother in fact latched on to that suggestion and went further in suggesting that it also needed to be a situation of the father dealing with his “control of X”. When challenged about any suggestion of controlling behaviour, the mother indicated that it was occurring and that, “X tells me about it.”
The mother was challenged about her beliefs and her immediate reaction of accepting whatever might be said by the child. She was asked about the nonsensical suggestion of X saying that her father had taken her to moon, and she said that she would not believe that, but when asked whether she accepted that sometimes children just do not tell the whole truth, make up a story or even lie, the mother fell back into an absolute belief, she says, that when the child said something of that nature there would be no reason to lie about the father she loved and, therefore, it must be true.
There was, of course, no appreciation whatsoever on the part of the mother, that it might also be a statement made by a child to a mother that is loved very much, of a situation that the child in an immature or childlike way thinks is what the mother wants to hear.
The mother, as I indicated, was a caring, loving parent. No doubt X loves her, but the impression that I gained was that the mother had, perhaps in her own mind, exaggerated the circumstances that existed between she and the father, and, certainly, there was a concern that they reflected far more the issues with regard to the relationship between the mother and the father than the need to act in a manner protective of the child.
Finally, and perhaps most significantly, the mother was asked about her relationship with Ms K. She indicated that if they saw each other, she would say hello, but she went on to specifically note that that was as far as it went but acknowledged that they could communicate, if pressed. It was noteworthy that Ms K indicated that she was more than willing and sought to do so, but the mother appeared, unfortunately, to be somewhat defensive about that.
Most telling of all, however, was that the mother, when asked whether she had trust in Ms K being able to provide for the welfare of X, replied “No”. When questioned as to why that might be the case, including whether it might be because Ms K was under the influence of the father as the mother was, she said, “It’s possible.” The fact is that the unfortunate circumstances that exist here are, to all intents and purposes, far more reflective of the difficulties that the mother has than would otherwise be the case in respect of interactions between the child and the father.
THE FAMILY REPORT WRITER
I turn now to the evidence of the family reporter, Mr R. Mr R has attended to the preparation of three family reports or addendums to reports since the commencement of these proceedings. The first is a report dated 22 April 2013 and released by the registrar of this Court on 26 April 2013. That report noted recommendations as follows:
·That the parties share equal parental responsibility for X.
·The present child sharing arrangements continue for a further six months in order to allow evidence of the stability of Mr Stone’s current relationship. And to allow:
(i)Ms Menzies to attend personal counselling in relation to her present emotional state and
(ii)Mr Stone to attend and successfully complete a parenting program aimed at parenting of young children.
In April of 2013 the arrangements that were in place with regard to parenting were to the effect that the father was spending some limited time with X, but he was seeking in his application for there to be equal time calculated over a 14 day period. As I understand, that was not necessarily to be seven days with one parent and seven days with the other but an accumulation equivalent to equal time.
It was noteworthy, that in that first report, issues with regard to personal counselling or completion of parenting programs were touched upon as being required both by the mother and the father and yet there were still concerns with regard to each parent’s participation and involvement in such arrangements.
The second report, an update of the first, was dated 2 January 2014. In his recommendations, Mr R generally recounted the position that had previously been the case in his report of April 2013. He suggested that the parents have equal shared parental responsibility, that X live with the mother and spend time with the father each alternate weekend from Thursday afternoon to Monday morning. In other words, for four nights out of each fourteen, and that X begin spending school holiday time with the father commencing at Easter 2014 and for one week periods in each school holiday period thereafter. I was a little unclear as to whether that recommendation meant that at the long school holiday period at the end of the academic year, December/January, that only one week was proposed or whether a longer period was suggested.
It was noteworthy that Mr R mentioned in that updated report specific improvements and benefits in relation to X’s relationship with her father. At paragraph 35 he said:
I observed X interacting with Mr Stone, again at the Registry playroom. I observed X to be engaging very positively with Mr Stone and it was apparent to me that she had no fear of him whatsoever as she challenged him on a number of occasions with age-appropriate coquettish behaviours; behaviours that I considered were typical examples of interactions between a young a girl and her father. I observed Mr Stone to be responding to X in a warm, accepting manner and he did not display any of the behaviours that I interpreted as controlling in my previous observations of him and X in April 2013.
Mr R went on at paragraph 36 to further note:
I considered that, overall X was demonstrating secure attachment to Ms Menzies and Mr Stone as well as age-appropriate behaviour. Her school report indicated that, overall X was making a satisfactory school adjustment, suggesting that she was currently psychologically healthy.
Under the heading Evaluation, Mr R again recounted the observation of X with her father, noting that she did not hold any specific fears of her father and specifically noted the concession by the mother that X was:
…managing spending time with Mr Stone since this re-commenced from 1 October 2013.
That observation of the comment by the mother reinforced for me the concern that, I must say, arose in relation to this matter, with respect to the concerns that the mother held being far more a reflection of the mother’s relationship with the father and of her, no doubt, real concerns with regard to the father, than in respect of anything that had been observable in the relationship between the father and X.
More specifically, Mr R noted the appropriateness of the relationship between the father and X and also noted the stability in the relationship between Mr Stone and his partner Ms K.
Following the issue of that report of 2 January 2014, some clarification was sought from Mr R, in relation to his report. In a letter sent by Ruddy Tomlins & Baxter, Mr Greg Figg the solicitor then acting as the independent children’s lawyer, forwarded a copy of correspondence from Dillon Lawyers, the solicitors acting on behalf of the mother, requesting that Mr R advise as to any of the matters raised in that correspondence, particularly with respect to the question of equal shared parental responsibility.
There, the independent children's lawyer commented upon the correspondence received from Dillon Lawyers and included the proposals with regard to settlement in relation to this matter. Mr R responded only a few days after the correspondence was forwarded to him by the independent children's lawyer. He noted that his recommendation in his report of 2 January 2014 for the parties to move to equal shared parental responsibility was based upon his assessment that it would be in the child’s best interests and he noted that his observations were of a child who did not display any fear of the father.
He also spoke of the workability of arrangements, noting that Mr Stone had reported the interaction between he and the mother at a recent school concert, which was of a positive nature and that his view was that that communication and exchange, as interpreted by both parties, certainly provided evidence of a “successful co-parenting arrangement”. Further, it was an indicator of there being an ability for the parties to have cooperative encounters.
Mr R also noted specifically, that whilst there was reference in his report to a difficulty in discerning whether Mr Stone was telling the truth about his denials of using domestic violence, it was not in any way, a confirmation that violence had taken place as alleged by the mother or that the father was lying. Rather, he noted that he considered that the mother certainly harboured fears of Mr Stone but specifically went on to note that, it would probably be impossible to ever know what had occurred between the parties other than that there was clearly a fear held on the part of the mother.
In respect of that particular aspect of the matter, Mr R also noted that the fear held by the mother was apparently limiting her ability to co-parent X with the father. It was, if you like, a telling example of the fact that whilst the mother has fears and they are accepted as genuine, there is a need for the mother as well as the father to deal with such issues, because of the fact that the child, the subject of these proceedings, will benefit from the parents working through such arrangements.
Mr R went on then to note that his recommendation was still for the parents to share equal parental responsibility in relation to decisions to be made with regard to X, noting that the mother’s solicitors had suggested that there be a delay for a period in relation to such equal shared parental responsibility coming into effect, so as to enable the mother to continue with her counselling treatment. He considered that “hastening slowly on the issue” was in the child’s best interests. To that end he suggested that equal shared parental responsibility commence six months from the date of his final updated report. In other words, in a date one would expect somewhere around the middle to end of August 2014.
Interestingly, just prior to the matter going to trial, subpoenaed documents were inspected by all involved in these proceedings and counsel for the independent children’s lawyer provided, with leave, copies of records obtained from (omitted), the organisation involved in counselling X and records from “(omitted)”, the group involved in counselling the mother to Mr R. It was noted that these updated Mr R as to the position of counselling both for the mother and the child and he was asked whether he had any specific comments that he wished to make, in relation to the contents of those notes.
As I understand it, no written comments were provided but, when called to give evidence, he was asked by counsel for the independent children’s lawyer specifically whether he had considered the documents that had been forward under cover of the letter of 4 June 2014 and, if so, whether they had, in any event, affected his recommendations certainly as detailed in the final addendum report of 17 February 2014.
Obviously the issue of parental responsibility is one of great significance. Here it is a matter which looms large because of the very divergent position of the parties. I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.”
Exactly that situation arises here. The difference between Lansa & Clovelly and this case, however, is that there was some indication that the report writer in that case was hopeful that a decision about parenting would see an abatement of the conflict between the parties. There was also evidence in Lansa & Clovelly of the fact that the parties had been able, at least in part, to make decisions and to work together with regard to the decision-making process with regard to the long-term interests of the child.
There are some positive indications of that nature in this matter. It is noteworthy that the Independent Children’s Lawyer was of the view that equal shared parental responsibility was in the best interests of this child and also was a workable future parenting arrangement.
Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(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 interest of the child for the child’s parents to have equal shared parental responsibility for the child.
The issue of family or domestic violence loomed large in this matter. From the mother’s perspective it in fact was the predominant issue for consideration in respect of all aspects of the parenting of X. In that regard, I note that from the mother’s perspective the difficulties she experiences in communication and interaction generally with the father flows on to the limited proposals with regard to the father’s time to be spent with the child.
Much was made of the importance, from the mother’s perspective, of validation of her genuinely held concerns in respect of having been the subject of domestic or family violence. The father’s position was to simply deny that family violence of any nature had occurred, though as I commented earlier in these reasons, it would clearly seem that the father’s perception of family or domestic violence is comprised solely of physical dispute. The father had no ability to conceive violence of any nature arising from a raised voice, intimidating behaviours or financial or emotional control.
Clearly, within the wide definition of family violence, the father has been the perpetrator of such behaviours. However, it is not at all clear that such behaviours continue or are able to continue. I say that in the sense that the parties are separated and have remained apart for a significant period. More particularly, at least from the father’s perspective, he has re-partnered and his interaction with the mother and therefore his ability to intimidate or control the mother has been significantly reduced, if not eliminated entirely. In that sense therefore, the concerns of the mother, though no doubt genuinely held, are not reasonable in all the circumstances.
Insofar as physical altercations between the parties are concerned, I find that a far more difficult assessment to make. In some respects, it is not necessary for me and may not even be helpful to make an assessment of whether physical dispute has occurred, but by the same token, from the mother’s perspective, the issue of validation of her position is important. I am certainly satisfied that there was unconsented physical contact between the mother and the father, noting that the father acknowledges that he “pushed past” the mother on occasion when they were involved in verbal dispute, but I am not satisfied on the evidence that there was the more serious aspects of physical assault perpetrated by the father.
I accept that the mother has concerns of that nature, but am not satisfied on the evidence presently available that domestic violence in that physical form has occurred. In any event, there does not appear to be any suggestion since separation of domestic violence, other than the mother’s concerns which, with respect, she needs personally to deal with as recommended by the report writer.
Otherwise, there is communication between the parties and whilst difficult on occasion, decisions have been made and appropriate arrangements put in place in relation to the child. In my assessment, and I note as recommended by both the Independent Children’s Lawyer and the family report writer, equal shared parental responsibility can operate effectively and would be in the best interests of this little girl.
I am satisfied that an order for equal shared parental responsibility is appropriate and intend to make such an order. What then flows from that is the necessity to specifically consider those matters that arise pursuant to the provisions of section 65DAA of the Family Law Act. Section 65DAA is in these terms:
SECTION 65DAA COURT TO CONSIDER CHILD SPENDING EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME WITH EACH PARENT IN CERTAIN CIRCUMSTANCES
Equal time
65DAA(1) Subject to subsection (6), if a parenting order provides (or is to provide that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interest of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
65DAA(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
65DAA(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(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 or 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 or particular significant 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.
65DAA(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
65DAA(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Consent orders
65DAA(6) If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
65DAA(7) To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
First and foremost is a requirement to consider equal time with each parent, and if not practicable, significant and substantial time as defined in section 65DAA. There is considerable divergence of view held by the parties as well as the Independent Children’s Lawyer in regard to what is appropriate. As noted at the commencement of these reasons, the father proposes equal time, the mother proposes what I might refer to as the “lower end” of significant and substantial time, and the Independent Children’s Lawyer suggests something between the two.
Interestingly, Mr R saw another path that could be followed in relation to this matter, which was to work forward from what currently was in place, four nights per fortnight, toward greater periods of time, culminating in equal time. This position seems to me to reflect a more considered and child-focussed proposal than with respect any of those detailed by the parents or the Independent Children’s Lawyer. I say that because it not only recognises the close and important relationship between X and her father, but balances the need for that time between father and child against the mother being comfortable and therefore able to more appropriately parent the child when in her care.
Mr R did not specifically suggest a timeframe for a way forward, though it is noteworthy that in his reference to “hastening slowly” with regard to parental responsibility, he suggested that becoming effective from say six months after his last report. He certainly was not suggesting years being required to pass before a transition to equal shared parental responsibility and, in my assessment, similar progress should also be made with regard to more significant time being spent with the father, culminating in equal time.
Clearly, consideration must then be given to the objects and principles of the act as set out in section 60B(1) and (2), which are in these terms:
SECTION 60B OBJECTS OF PART AND PRINCIPLES UNDERLYING IT
60B(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.
60B(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).
The objects and principles are then required to be considered and section 60CC(2), (2A) and (3) reflect the considerations that arise from section 60B. Section 60CC(2), (2A) and (3) are in these terms:
Primary considerations
60CC(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
60CC(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
The primary considerations are in my assessment a counter-balance, one against the other, giving rise to a need to ensure that a child has their right to a meaningful relationship with each parent fostered, but only in circumstances where it would not be physically or psychologically harmful to a child. As I have already noted, the mother emphasises her concerns with respect to both physical and psychological risks to the child arising from more time being spent with the father.
Mr R was specifically cross-examined at length in relation to that issue and noted that he did not hold concerns with regard to the child when spending time of a significant nature with the father. In particular, he noted that X did not exhibit the type of compliant behaviour that was common in children who had witnessed serious violence and abuse. X’s relationship with her father was observed to be a normal and appropriate father/daughter relationship and not one in which there was observable indicators of fear or compliant behaviour by the child.
Suffice it to say, I am not of the view that the need to protect the child from physical or psychological harm is of such or any consequence sufficient to outweigh this child’s right to a meaningful relationship with her father, and those others from the father’s side of the family, significant to the child.
Insofar as the additional considerations are concerned, a number of matters need to be noted, though in my assessment, not at any great length. I say that because in commenting earlier in these reasons upon the evidence, much has already been addressed with regard to those additional considerations. For example, whilst the child is only young, her views can be assessed, not so much from what each of the parents or their supporters might say, but from the independent assessment, particularly of the family report writer, Mr R.
He observed a close and significant relationship between the father and the child, and clear comfort taken by the child from interaction and time spent with the father. Whilst not necessarily indicative of a view expressed by the child, an inference can properly be drawn of the child’s wish to experience time with both of her parents. Similarly, the observations of Mr R regarding the relationship that the child has with each of her parents, as well as those others significant in her life, give rise to an obvious need to continue and, in fact, to foster that relationship with all those important in this little girl’s life.
There have been difficulties in communication and exchange between these parents and both could obviously do better. However, as I noted toward the conclusion of my consideration of the evidence of Mr R, the issues in this matter relate far more to the parents needing to deal with the aspects of their relationship and exchange between each other, than in any way to relate to needs to protect the child. Each of the parents has in different ways failed to fully take the opportunity to involve themselves in the life of the child. The father has perhaps been too dogmatic in his approach to the mother and needs to deal with such issues. The mother certainly has been avoidant of interaction or discussion with the father, and as I noted previously, the mother needs to deal with those issues so as to improve her own capacity to properly parent the child.
Insofar as the effect of any change that might arise as a result of more time to be spent with the father, I am more than satisfied that it would not be disruptive to the child, physically or emotionally, in the long term and do not consider that there would be any difficulties, particularly if the child’s time with the father was to increase on a graduated basis.
There is no concern arising with regard to difficulties or expenses that might arise with the child spending more time with the father. Further, I am satisfied that each parent has the capacity to provide for the emotional and intellectual needs of the child and in fact am satisfied that the more significant involvement of the father in the child’s life will be of direct benefit to this little girl.
Insofar as the attitude of each parent to the child and the responsibilities of parenthood demonstrated by each of the parents, I would simply note that both could do better, especially in respect of their interaction and communication with each other, but that in a general sense, both recognise the importance of their parenting of this little girl and would no doubt continue to act in an appropriate and proper manner.
Insofar as the issue of family violence is concerned, I have already commented at length about such issues and would simply note here that I am not satisfied that family violence is to any real degree or at all a concern into the future, and certainly it is not influential in respect of the determination of this matter.
Finally, I would note that in light of the findings that I have made, and in particular reliance upon the independent and expert assessment of Mr R, I am satisfied that orders which gradually move toward equal time being spent by this child with both the mother and the father reflect arrangements which are in the best interests of X and therefore, in my assessment, are least likely to lead to the institution of further proceedings.
Accordingly, I intend to make orders in relation to the parenting of this child in terms of those outlined at the commencement of these reasons.
I certify that the preceding one hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of Judge Coker
Date: 13 January 2015
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