Strang and Prentice
[2015] FCCA 23
•22 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STRANG & PRENTICE | [2015] FCCA 23 |
| Catchwords: FAMILY LAW – Mother has supervised time with child pursuant to Family Court Orders for seven years – mother now applies to have child live with her – mother alleges father not able to accommodate child’s emotional needs – child aged 13 and half turning 14 December 2014 – mother previously diagnosed with personality disorder – views of child not to leave his current commitments – mother and father maintain significant lack of trust for each other and do not communicate – mother does not acknowledge child’s strongly held views – child to live with father. |
| Legislation: Family Law Act 1975, ss.60 CC, 61DA, 65DAA |
| Mazorski & Albright [2007] FamCA 520 MRR v GR [2010] HCA 4 |
| Applicant: | MS STRANG |
| Respondent: | MR PRENTICE |
| File Number: | BRC 2495 of 2012 |
| Judgment of: | Judge Willis |
| Hearing dates: | 27 & 28 May 2014 |
| Date of Last Submission: | 28 May 2014 |
| Delivered at: | Cairns |
| Delivered on: | 22 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Middleton |
| Solicitors for the Applicant: | Carroll Fairon Solicitors |
| Solicitors for the Respondent: | Ferguson Cannon Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Lyons |
| Solicitors for the Independent Children's Lawyer: | Legal Aid Queensland |
ORDERS
In addition to the Consent Orders of 17 May 2014, IT IS ORDERED THAT:
Living arrangements
The child X born (omitted) 2000 (“the child”) will live with the father.
The child will spend time with the mother at all times as agreed in writing between the parties, and failing agreement at the following times:
(a)Each alternate weekend commencing from 8:30 am Saturday morning until Sunday afternoon at 5:00 pm. In the event that the Monday is a public holiday, the child will remain with the mother until Monday at 5:00 pm.
In the event that there is disagreement about a long term issue, the process to be adopted is as follows:
(a)They 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 (3) practitioners and advise in writing details of their fees, experience and availability;
(d)The father shall choose one of the listed practitioners within seven (7) days of receipt of the list; and
(e)If the father fails to choose then the mother may choose.
Child to meet with Family Consultant
That pursuant to Section 65L of the Family Law Act 1975 Ms P, or such other Family Consultant as appointed by the Court, in the company of the Independent Children’s Lawyer meet with the child as soon as possible to explain the Orders made by the Court.
The parents are responsible for ensuring that the child attends any appointment made with the family consultant for the purpose of the preceding order.
The father and mother are granted leave to provide copies of the 2 Family Reports prepared by Ms P and the psychiatric reports of Dr F to their own counsellors.
The father and mother are to do all acts and things to attend at the Post Orders Parenting Program and each are to provide their certificate of attendance and completion to the other party, within six months from the date of this Order.
Upon compliance with Order 4 herein, the Independent Children’s Lawyer is discharged.
All outstanding applications are removed from the pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Strang & Prentice is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 2495 of 2012
| MS STRANG |
Applicant
And
| MR PRENTICE |
Respondent
REASONS FOR JUDGMENT
Introduction and background
The parties in this matter have been in litigation in relation to the child, X born (omitted) 2000 and currently aged 13 and 5 months, almost continuously since they separated back in 2005. In October 2005, the parties separated and were involved in intensive litigation for over three years in the Family Court of Australia. The Court appointed an Independent Children’s Lawyer, and many experts were involved in forensic reporting in relation to this family.
The ultimate outcome of the litigation in the Family Court of Australia three years after the litigation commenced, were the final Orders of O’Reilly J that X was to live with the father, and the mother was to have supervised contact only to occur a contact centre. This was to happen fortnightly, but seems to have occurred monthly. These Orders were the final outcome to allegations made by the father that the mother’s daughter from an earlier relationship (Y) who was a child of the family circle, posed a risk to X who was then aged two or three. The other consideration was that the mother was diagnosed with a personality disorder and there were issues as to her willingness to protect and or accept that her daughter posed a risk to X.
The circumstances which ultimately lead to the breakdown of the relationship between the mother and father came to light when X, at age two or three, spontaneously indicated to his father that Y had touched him and had been doing so for some time. The father says that X made this statement in his and the mother’s presence, however, the mother has always denied that she was present at any stage to hear X make any such comments.
In addition to that revelation, the parties were called into Y’s school and Y was then dealt with at school for aggressive behaviour and sexually inappropriate touching of other students. Ultimately, a tragedy was revealed on finding that Y was herself, a child victim of sexual abuse from an adult friend of the family. That friend was ultimately charged and convicted of sexually abusing various other children. Y was included in the trial as a victim, but because the mother had left the room at a certain point the charges of abuse against Y were not sustained. In any event the alleged perpetrator was sentenced to a term of imprisonment of 10 years and served eight years.
During the earlier litigation in the Family Court of Australia before Justice O’Reilly there were various experts involved including Dr S, Psychiatrist and Report Writers. The parties were ordered to comply with the recommendations of Dr S which included the mother attending personal counselling and X was to attend a protective behaviours course. Y was included in Orders made and she was to live with the mother and the mother had sole parental responsibility. Orders were made that X have no contact with Y.
As can be seen from the helpful and comprehensive chronology prepared by the Independent Children’s Lawyer, following separation on 22 October 2005, whilst initially on 21 December 2005 interim orders were made for the children to live with the mother and exercise contact with the father, before the matter reached the next Court date, the mother and father had between themselves agreed in March 2006 that X should live with father as that was X’s preference. The father reported to Dr G that the mother came to him and said “X would prefer to live with you and see you more and would you like to take him?” to which the father replied ‘yes’.
On 24 April 2006, Orders were then made formalising their joint agreement that X was to live with the father and the mother was to have contact as agreed and Y lived with the mother.
A month later on 16 May 2006 further interim orders were made that included X still to live with the father and the mother spending supervised contact at a contact centre or by an approved person, three hours per week. Later in September 2006 the parties agreed that Y was at liberty to attend with the mother for her time with X at (omitted) Contact Centre. Significant further interim Orders were made on 27 September 2006 which included supervised time for the mother until May 2007 at which point the mother was to have four hours unsupervised, however, this was conditional upon the mother attending upon Dr N for assessment as to her fitness to spend time with X as contemplated in the Orders. Y was also to attend upon Dr N for assessment of her sexual functioning “and how that affects interaction she may have with X” and whether that time should be supervised or not. The supervision orders were to remain in place until the assessments with Dr N “prove unsupervised interactions between the mother and X and or Y were appropriate or until further Order.” The contact centre was to be supplied with a copy of the Orders. In November 2006 Dr N’s report was released.
In May 2007 the family began attendances with a Dr J who prepared a report in November 2007. In December 2007 Justice O’Reilly made orders that the mother and father were to abide by the recommendations of Dr J and the matter was adjourned until March 2008. In March the matter was adjourned for a further four months until 8 July 2008. During this time proposed trial dates were vacated.
On 8 July 2008 Justice O’Reilly made orders by consent that Y live with the mother and other orders that the mother encourage Y to maintain a relationship with the father and facilitate X spending time with Y. The parties were also ordered to attend a Legal Aid conference with a view to making final orders for X and Family Reports were updated.
On 22 August 2008 the parties attended Court in Brisbane before Justice O’Reilly and orders were made by consent that X live with the father (where I note he had been living since April 2006 by consent) and that, other than by way of telephone, the time X spends with the mother be supervised at (omitted) Children's Contact Service. I have highlighted that the final order was an order by Consent as this has not been signified by the mother in her re-telling of the history of this litigation.
From that time onwards, following the consent orders of O’Reilly J, the mother had supervised time that continued through to 2012.
Current litigation
The mother filed an application in the Federal Magistrates Court on 23 March 2012 seeking orders that the Orders of Justice O’Reilly be set aside and that X live with her.
On the first date agitated to have the supervision order lifted. The mother alleged that circumstances had now changed, Y was no longer a risk to X and that X complained to her about the father being heavy handed in his disciplining techniques. The mother alleged that the father did not have the capacity to provide for the emotional wellbeing of X.
Judge Spelleken (then a Federal Magistrate) made orders for the parents to attend upon a family consultant, which they did and a memorandum issued. On 8 August 2012 orders were made for an Independent Children’s Lawyer (ICL) to be appointed, a Family Report and psychiatric assessments.
Report of Dr G
The parties attended upon Dr G, a consultant psychiatrist in November and his report was filed on 27 November 2012. The report noted that from a DSM-IV perspective Mr Prentice does not present with a constellation of symptoms sufficient to warrant a Major Axis 1 Psychiatric Diagnosis. He suggested that given the father’s guardedness with respect to X’s continued safety in light of the prospect of unsupervised time occurring after years of supervised, and the challenge this may present to the father, some counselling may be required during the transitional process. It was not to be mandated counselling, but rather, something which may be of assistance to him. Dr G viewed the father’s insight was marginal but his judgment good.
I note the father’s work history was described and that has a (qualifications omitted) in (industry omitted) and worked as a (occupation omitted) for six years before commencing a (omitted) (business omitted) called (omitted) which involved (omitted). He did this for some 9 years before he and the mother relocated to Brisbane in 2000. The father has also been involved in (business omitted) as well as running his (business omitted) and since moving to Queensland had commenced employment with (employer omitted) where he worked for 12 months before he worked for (employer omitted), a (employer omitted). He then worked for (omitted) for the past three or four years whilst also performing consulting work in (omitted) organisations. He then started his own (business omitted). The father says he has tried to secure work that works around his commitments to have the full time care of X, changing work if necessary to do so.
The mother’s assessment notes that the mother has suffered from depression and that there was an incident in which she says she had a panic attack and she held a knife in her hand when she was then taken to the emergency department by the father. She says she did not make threats to self-harm and did not require overnight admission and has no history of overdoses. After the breakdown of her marriage with the father in 2005, the mother commenced a relationship with Mr L in 2006 and they married in 2009. The mother says the relationship is stable and that she and Mr L enjoy a loving supportive relationship.
As to the past litigation, the mother explained that she feels that the father has been domineering and has been negative towards Y with a tendency to parent each child differently acknowledging that Y was the father’s step-daughter. The mother said that she believes that the actions of the Court have been heavy handed and draconian given that she herself has never been perceived by Family Services or the Police as a threat to her son but the father has controlled the circumstances of the relationship breakdown refusing to return X and making excessive accusations regarding a 12 year old girl’s potential sexual threat to X.
Dr G’s report notes that since separation in 2005 the mother has only ever been able to see X at a contact centre for four hours every fortnight which has been stretched out to two hours per month. The report continues, “She states that the Court Orders were such that X live with the father and the mother only allowed access on this basis. There appears to be no evidence of any court documents that suggested that Ms Strang represented a risk or harm to X with no indication from Mr Prentice’s affidavits of any abuse occurring between mother and son.” The report notes that the mother believes that the Court processes have been manifestly unfair to her in that she has been deprived of ongoing contact with her son for the past 7 years although, no concerns have been expressed about her own capacity as a parent to X. I note that the report of Dr G does not contain a statement by the mother that the final orders for supervision were entered into were by consent or that she agreed that X should live with the father as early as March 2006.
The mother advised Dr G Y was now aged 18 and living with her partner and is the mother of a four month old baby, Z when the interviews were conducted in November 2012. Y did not live with the mother and Mr L. In terms of Y’s own sexual abuse by a family friend, the report notes that as a result of this experience Y underwent significant behavioural changes, such that warranted a range of diagnoses from various specialists including oppositional defiant disorder, depression and conduct disorder. Her adolescence was described as stormy, but that the behaviour has gradually settled.
As to the mother, Dr G considered that under the DSM IV diagnosis the report notes that under Axis 11, “Personality Disorder: the mother has Borderline Traits.” Dr G considered that the mother’s insight was reasonable and her judgment fair. His view was the mother is of sound mind and capable of having an ongoing relationship with her son. The report continues, “Given her past history of Borderline Personality Disorder and concerns expressed by psychiatrists regarding her lack of insight and judgment that the process of contact with X be gradual based on her capacity to care for and show appropriate behaviour and respond to his needs.”
The mother herself had a difficult childhood with her parents separating when she was 6, her mother being involved in drug abuse and prostitution, and she and her brother being placed into foster care with her mother’s brother. On leaving high school the mother has worked in various positions in (omitted), (omitted), (omitted) and (omitted). The mother was not working at the time of the interview as she had resigned to focus on Court matters. She was working her way through a diploma.
Further Family report commissioned
Two further family reports have been commissioned in this matter since it has returned to Court. Both were completed by Ms P.
On 28 February 2013, the matter returned to Judge Spelleken and the parties were able to come to agreement with Consent Orders requiring the ICL and Family Report writer to meet with X to explain the orders agreed upon and those in the past and the reasons behind supervision. Importantly the Orders of Justice O’Reilly dated 22 September 2008 were set aside and X, by agreement, was to commence spending each Saturday with his mother between 7:00 am and 4:00 pm, two days in the April school holidays and after six weeks, the Sunday following the Saturday was to commence. This time was pursuant to the recommendation of the family report that the mother’s time commence gradually.
As to the allegations that the father has been punching or hitting the child, these allegations have been raised with the father through the family report. The father denies he has ever punched X. I add, at this point, that it is not against the law for parents to smack their own children. It is a matter of degree and force as to whether or not a parent breaks the law and assaults a child. There is no evidence that the father has assaulted X. X has reported being intimidated at times by the father when his father is angry with him.
The mother has emphasised this issue and says, that the father doesn’t provide emotional support; that the emotional support for the child is provided only at a youth group and therefore it is contended that the child should live with the mother because she will have an opportunity to provide emotional support which he has never had in the past.
Current applications/ responses
The mother’s application now is that the child live with her and spend time with the father either on alternate weekends or that the child spend time with the father as per his wishes.
The father’s application is that if the mother is living on (omitted), that X lives with her and spends each alternate weekend with the father. Otherwise, if the mother is living elsewhere other than (omitted) (and clearly within comfortable and convenient driving distance) that the child will live with the father and spend each alternate weekend with the mother from either Saturday morning at 7 am until Sunday at 4 pm or in the event the mother is prepared to collect the child from youth group on Friday nights, to commence from after youth group on the alternate Friday night.
At the end of the trial the mother added a condition to her own orders being that she be ordered to ensure that the child attends youth group on the (omitted) each Friday night that the child is in her care. The mother is living at (omitted) which is about 20 minutes off the main highway between (omitted) and Brisbane, turning off the motorway before or at (omitted). The distance between (omitted) and (omitted) is 51 kilometres. It seems generally agreed that the journey from the mother’s current location to the (omitted) takes about an hour or so on a good day however the journey is also subject to the pressure of traffic travelling between (omitted) and Brisbane and can be an hour and half or longer.
Current circumstances
The mother who was born on (omitted) 1971 and is currently 42, lives on five acres with her current husband Mr L who was aged 68 at the time of trial.
The father who was born on (omitted) 1964 and was aged 48 at the time of trial, lives on (omitted) at (omitted) at (omitted). The child is going to high school at (omitted) School. Some of the handovers have happened at (omitted) and (omitted).
In terms of the witnesses in this matter, the mother gave evidence and was cross-examined along with her husband, Mr L. The father was cross-examined as was the family Report Writer.
Statements of fact in this judgment represent findings unless indicated otherwise.
I have had regard to all of the material, the submissions and the exhibits. I should say, at the outset, that there is nothing additional that either Mr Middleton of Counsel nor Mr Vanardos, solicitor advocate, could have done for their clients to further advance their case. The Court also appreciates the assistance given by the Independent Children’s Lawyer Ms Sue Duncan at the trial through her Counsel Ms Lyons.
This trial commenced on the background then of this very long history through the Family Court and now returning to the Federal Circuit Court of Australia.
At the end of the trial, the parties put their efforts into agreeing to issues that were not contested and signed off on Consent Orders on those issues. The consent orders were made by the Court on 27 May 2014 however, the most significant issue as to where the child primarily lives, remains for determination by the Court.
The position of the ICL at the commencement of the trial was that she was undecided and would quite properly consider her position at the end of the trial. At the conclusion of the trial, The ICL’s position was that that X should remain living with his father and spend each alternate weekend with the mother and half of the holidays.
Witnesses
The Mother
The mother appears to be a quite outspoken and confident women who gave me the impression that in regard to the current litigation, she is caught in between wanting to have her son live with her and the obligations she has as a wife to her current husband, who have been married for 4 years. She and Mr L, who is 26 years or so older than the mother, have their own plans to move to another smaller acreage. The mother is hoping to obtain some work likely in Brisbane, but at the time of trial, was totally reliant on her husband for all financial support.
She seemed preoccupied with focussing in a very single minded way on a statement by X that he would like to live with his mother and he would like to see what it was like living with his mother and statements to that effect. The mother referred to the child’s alleged view on several occasions, though she did not readily admit the full explanation of his views.
I am satisfied that the mother and her husband do not intend to move to (omitted) or close enough to it to effectively mean that X could live with his mother and live on (omitted).
The suggestion made by the mother to the Report Writer clearly left this very experienced Report Writer with a completely inaccurate understanding of the mother’s proposed future move to either (omitted) or very close to (omitted). Having heard Mr L’s unequivocal views about not wishing to move to (omitted), and that he would not be moving further away from his business and his adult son and daughter in law and their children, the mother ought never have been under any illusions about her husband wishing or being willing to move close enough to (omitted) to accommodate X’s wish that he remain living on (omitted).
The mother returned to Court to seek orders completely reversing the orders of O’Reilly J through the financial support of her husband. Much of her case revolved around her perception she was wronged through the earlier orders of the Family Court of Australia and had done her time with supervision and now she had earned the opportunity to have X live with her. My strong impression was that she wanted to now reverse the living arrangements to remedy perceived past wrongs.
Statements such as “I have been fighting for eight and half years, I have had years of knock backs” and similar remarks were made by the mother. It is puzzling that the mother sees the history of this matter in that way in some respects, when she consented to the arrangements for supervised time whilst legally represented. I have a strong sense that the mother has recast how the Family Court litigation played out and that she is in denial about the strength of the case against her, noting her own diagnoses by Dr S, the sessions with Dr N, and the other forensic evidence. This, coupled with the subsequent revelation that Y herself was sexually abused and then suffered various disorders all lead to the parties resolving this issue by consent orders. The Court gave its imprimatur to the proposed arrangement. Supervision implies that there was an unacceptable risk in terms of the mother having unsupervised time with X.
I had a strong impression that she continued to hold the father responsible for her years of supervision and she failed to acknowledge expressly or impliedly in any genuine way, that the father has done a fine job in raising their much loved son. The mother preferred to focus on the father’s shortcomings as a parent rather than his strengths.
The mother seemed to conduct her case on two levels, which together, were inconsistent given the facts. The mother very much wanted X to live with her. She knew however that her husband would not move anywhere that made travelling to and from his family business inconvenient and that included (omitted). My strong impression was that she expected X to make all the adjustments and changes to accommodate her strong desire to have X live with her. I had a strong impression that the mother was not nearly as in touch with X as was the father and that she minimised the significant changes involved in X’s life if he were to leave his school, his father, his friends and life on (omitted) and his commitments, to start a new life living with her. I accept without reservation that the mother loves X dearly.
Mr L
The mother’s husband, Mr L currently 68 years of age, married the mother in (omitted) 2009. He has been married before and has adult children. He is the sole financial provider for the mother and has funded this litigation.
The mother’s husband was cross-examined and he was adamant that he would not consider living on (omitted) and that he was always going to live within a 30 or 40 minute radius of where his business is. He has an adult son working in the business and other family members. The adult son is married and there are grandchildren of the adult son, all of whom are living close enough to Mr L to allow the close association to continue. Mr L wishes to remain living close by to those grandchildren, his adult children and his business.
Overwhelmingly it was clear to the Court that Mr L regards the (omitted) business he set up over 30 years ago and which he has spent his life’s work running one of the most important projects of his life. Mr L has no intention of moving further than 30 minutes or so away from that business. Clearly, this conflicts with the mother’s suggestion to the Report Writer that she would be living closer to (omitted) no matter what the outcome of the Court decision was.
Mr L has a passion for his family business and at age 68 shows no sign of stepping back from his daily involvement in his family business, albeit he might work a shorter day than full time. There are however days when Mr L is delayed at work or works late. Mr L is a very straight talking experienced businessman who says he has given his heart and soul to working and building up the family business for over 30 years.[1]
[1] Affidavit of Ms Strang filed 19/05/2014, paragraph 14.
He gave evidence in an honest, straight forward manner. Mr L stated under oath that categorically he would never live on the (omitted); that all he and the mother had ever done that day in relation to a property in (omitted) was to look at an open house, walk through it and walk out. He is adamant that for his own family business reasons he will never live more than 30 or 40 minutes away from his own business which his adult son is currently assisting him to run and that one day his son may take over the business. He says however, that time has not come yet and Mr L is actively involved in running the business.
Mr L has only spent time communicating with X over the phone with the mother for the period of supervision. He said that he did not see X during the whole of the supervision period. Mr L described X as a, “soft boy who gets upset easily”, “that he tries to be a tough little boy that he is not.” Mr L said that, “I think he is shy – he needs encouragement and building up. I will help him to grow up and be a good man.”
He impressed me as a very well-intended step father, however he had a rather strict authoritarian presence about him. He left a strong impression that has work was his primary focus in life. He is a strong supporter of the mother. He is significantly older than X and I was left with some reservations about Mr L’s fairly black and white view of the world and how that might play out when it comes to dealing with challenging teenage behaviour or behaviour that was less than he expected. Mr L is the sole source of financial support for the mother and the decision about paying for the private (religion omitted) schools that the mother has in mind for X if he lives with her, require Mr L’s absolute financial support.
The issue of financial support is not insignificant as the mother has a poor record of being able to offer any meaningful financial support to the father. The latest records show her paying amounts of approximately $30.00 per month and that she is behind with these payments from time to time. In the event that X moves in and lives with the mother and Mr L, the costs associated with raising a teenager, (now primarily paid for by the father) will fall to Mr L. Even if the mother obtains employment, the mother’s proposals involve X attending private school which is only once part of the cost of education. Living expenses, clothes, mobile phones, entertainment and the cost of travel, various sporting commitments and other activities, will all need to be funded.
Mr L explained that he is only a recent church goer and that he has gone with the mother. He explained that someone in the church they were going to did the wrong thing by him in terms of a real estate deal, so they changed churches.
I note that Mr L became involved in an issue between X and the father about which he held strong views, but which, in reality did not involve him. The issue of the father lending X money to purchase a cricket bag, was very much an agreement between father and son. X asked to borrow money and the father agreed. The father’s insistence that the money be paid was a request that was entirely within his prerogative to make. Mr L on hearing that X needed to take some money out of his savings piggy bank flatly refused to allow it to occur. Not only that, he wrote to the father telling him in no uncertain terms, that the agreement between the father and X would not be happening. He wrote, “Mr Prentice, this is Mr L, X is not taking any money out of his piggy bank here to give you and I am horrified and disgusted that a father could do this to his child. I have taken the money off X so he is not put in an awkward situation again.” In response, the father sent a text saying Mr L’s opinion does not matter and explaining that X asked to borrow the money from his father to buy the cricket bag and it was given to him on that basis. The father queried, “what business is it of yours how he spends his money?” Mr L weighed in again saying “OK then, instead of getting your son to take money from here, which is my business, use the money he earns 4 doing chores down there.”
The father replied, “Whatever. Have your power play if it makes you feel better? Not interested in your games, don’t message me.”
The issue with X and his father and borrowed money was not an issue in which Mr L ought to have become involved. Given the amount of child support being paid to help pay for all of the costs associated in raising X, the decision of Mr L to become trustee of X’s savings sitting at Mr L’s house and determine what the funds would or would not be used for, was always going to lead to trouble. I note with concern the tone of Mr L’s initial message and the propriety rights he believes he has over X’s money because it is in Mr L’s house. It is this kind of interaction which could potentially continue to occur between the father and Mr L. Similarly potential issues could occur between Mr L and X when X is living in the home of Mr L. I have reservations about the potential for future conflict given Mr L’s sense of entitlement and his forthright manner and how that might affect X on a long term basis particularly given he is a sensitive child.
The Father
The father was a quiet man who seemed very familiar with and in touch with X. He had an excellent knowledge and understanding of X and X’s social circle and friends and interests.
The father clearly does not trust the mother though he is prepared to accommodate any views that X holds about spending time with his mother. He has understandably been cautious in moving to unsupervised time. Given the length of that order for supervision and the decision of the Court to give its imprimatur to the consent orders for supervision, I am not critical of the father for agreeing to the transition from supervised to unsupervised slowly. These parties have been separated for many years now and the circumstances in which they have continued to have a relationship of sorts, have clearly been strained and their history is one of continual conflict, as observed by X.
The father gave evidence of his daily life with X and I was impressed with his child focus and intimate knowledge of X’s daily routines, friends, strengths, sensitivities, likes and dislikes. I had the impression that he and X had become a close knit unit over the many years that the father has been a solo primary parent and that the father had a deep understanding as to how X functioned.
The issue of his having hit X when disciplining him was discussed with the family Report Writer. X also was asked about these occasions. I accept the father’s explanation that most children would say that they are intimidated when their parents get angry. Overall, whilst not condoning physical discipline, the Court notes that it has occurred on a possible 4 occasions over 9 years, and that X himself said that most of the time his father is great. I note also that the family Report Writer was reassured that the father had been receptive to information provided about X’s perceptions and anxiety about his father becoming angry, and the father expressed an intention to better understand the situation from X’s perspective and address the issue
The father was questioned about why he had not alerted the mother to X’s hospital admission: I note that the father believes he had an order for sole parental responsibility under the previous Family Court Orders.
He said that X asked him not to contact his mother. The father also explained that X was admitted at 11:30 am at night and kept in overnight for observation and then released at 7:00 am the following morning. He said that in the situation, he discussed the matter with X and it was decided to wait until the morning until they knew what was going on. I accept that given the difficulties that these parties have in communicating that this was a reasonable position to adopt.
The father explained that he finds it very difficult to undertake civil transactions with the mother without getting nasty responses by text. I have read some of the text messages which the father refers to, and I agree that the responses are unnecessarily hostile. The father has set out some of the exchanges that he has had over very benign matters as follows:[2]
[2] Affidavit of Mr Prentice filed on 23/05/2014, paragraph 16 and 17.
7/06/2013 11:15: Why 2 football games tomorrow? I can understand 1 but why 2?
7/06/2013 11:18: He has been div 2 but has been promoted to div 1. They are short of players in u13 so transition players are offered to play both. He loves his footy so he wants to play 2 games. And its about him.
7/06/2013 12:41: It was a question, so don’t start getting nasty with me, you don’t need to tell me its about X, I have known that for 7 years!! You however can’t seem to see that it is about him and not you!!
Overall my impression of the father was that of a caring father, child focused who is endeavouring to do his best in raising X and that he has cautiously supported X moving to unsupervised time with the mother and would support X living with the mother on the (omitted), if that was genuinely what X wished to do. I consider that although he has a problematic relationship with the mother, he is able to see the value in X having a relationship with the mother.
It is also clear that the conflict of the past is still playing out in his relationship and communication with the mother. This seems to be entrenched with neither party having the ability to overcome it. Perhaps this is to be expected given all of the years of litigation that have occurred in the past.
Ms P, Family Report Writer
The Report Writer has prepared a memorandum and two family reports in this matter and I consider that she was well versed in the difficult dynamics involved in this family circle.
The reports are comprehensive and describe very well the sensitive type of boy that X has grown up to be and the difficult parental dynamics at play. Ms P was cross-examined thoroughly, gave appropriate and soundly based answers and held to her recommendations.
The first report was prepared in January 2013 when the mother sought orders that the supervised time cease and that the child live with her and the father on a week about basis and half the holidays, alternatively, each alternate weekends. The Report Writer noted in the report that at the time, the mother had not fully examined the implications of her proposal at a practical level up until the interview. This was apparent to the Report Writer when the mother was questioned about the distance between the parents’ residence as being an obstacle to an equal time arrangement. The mother was also uncertain how she and the father would be able to co-operate in an equal time arrangement when there was no communication between them. The mother said, “he will have nothing to do with me” and said that this was out of her control. During this interview the mother’s position was that X’s time with her would unfold slowly given her previous limited role in his life.
The father presented as being still very cautious about the mother and concerned that the mother posed a risk to the child through her manipulation and negatively influencing X, suggesting that in the past she had asked X to keep secrets. Overwhelmingly he still did not trust the mother and like the mother, had concerns about how they would co-parent given their lack of communication and that he had no faith in what she communicates. He expressed concern about the mother either communicating untruths or her possessing a distorted view of reality. Importantly, the father expressed the view that he did not know how they would make a join decision regarding X’s welfare and wellbeing. He had been given certain advices in the past from Dr W, not to communicate with the mother as he had assessed her as delusional and communication between them would not be productive or amicable. Like the mother, he said he would comply with whatever orders the Court made.
It is noted in that report that X was keen to establish a relationship with his half-sister Y and X reported that he had never inquired what the issue was which lead to the time being supervised with his mother, preferred not to bring up the subject as it makes him sad. The recommendation was for X to remain living with the mother.
The second report was prepared based on interviews on 13 February 2014. By that stage, the consent orders of 28 May 2013 were in force providing for X to live with the father, and spend each alternate weekend with the mother. Whilst the orders provided for June/July and September school holidays, but not Christmas, the parties had agreed that X would spend half of Christmas with each parent.
I rely on the contents of the second report but do not repeat them, though sections of the report are referred to elsewhere in this decision. I note that the final recommendation was based on the alternate basis of whether or not the mother lived on the (omitted). If the mother lived on the (omitted) a recommendation was made that X live with the mother and spend time with the father, largely as determined by him. If the mother did not live on the (omitted), the recommendation was that X remain living with his father and spend each alternate weekend with the mother. School holidays being divided equally is not in contest. The father has adopted the recommendation as his proposal.
In the second report, the Report Writer expressed the view that she assessed it to be in X’s best interests to experience being parented by his mother in a fuller capacity than he presently is, assuming she relocates to the (omitted). The Report Writer did not consider that X’s relationship with the father would be harmed if the mother also lived on the (omitted) and X lived with her there. She noted also that X held a fantastical view about his mother and that actually living with her would allow him to develop a balanced view of his mother, not one based on unrealistic notions. The Report Writer stated that X will always wonder what it would be like to live with his mother and there was a risk that he would blame his father which might affect their future relationship. The report continued that, “living with the mother is conditional upon her relocating to the (omitted) as stated above. It is very evident that X has strong connections within his community, particularly with his Youth Group, and it will not serve his interests to have these connections broken.”
X had identified his youth group as his biggest support and that they appear to be who he gets his emotional needs met by. “If therefore moving to the (omitted) is not an option for the mother for whatever reason, it is my assessment that X should remain living with the father.”
I have found the two Family Reports very helpful and generally I accept the recommendations are based on X’s best interests.
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).
In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated:
“The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).’
Since the amendments in June 2012, the Court is to give greater weight to the second of those two considerations, that is, the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Amendments were made to the Family Law Act 1975 incorporating the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. Those provisions which have been amended in regard to Family Violence apply to matters filed on or after the commencement date of 8 June 2012. This matter was commenced on 23 March 2012, in the Federal Magistrates Court of Australia and therefore the new provisions in Schedule 1 do not apply.
Section 61DA refers to a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse or family violence. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
When I determine the best interests of X, I will consider the additional considerations set out in s.60CC(3). I will consider and evaluate each of the parties’ proposals for care of X including the significance of the primary considerations in s.60CC (2).
Reference will be made to parental responsibility and if an Order is to be made for Equal Shared Parental Responsibility, reference will be made to s.65DAA(1) and the issue of reasonable practicability s.65DAA (5) and the issues referred to in subsection (a) through to (e) in arriving at the ultimate conclusion. The parties have already agreed that an order for equal shared parental responsibility should be made.
In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. In this matter neither party is seeking an order for equal time.
In these reasons, statements of fact constitute findings unless indicated otherwise.
S.60CC(3) The additional considerations are:
S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
In the first family report dated 28 January 2013 when X was interviewed he was in grade 7 at the (omitted) primary school, he was participating in cricket and football, he attended a youth program with his church each Friday night and church on Sunday morning.
When discussing the supervised contact he had been having for 7 or so years, he said he would be angry if his time with his mother continued on a supervised only basis as he disliked people watching him and people and children running around him.
X’s expressed a wish to spend increased time with his mother and that he had not had enough time with her in the past. In his ideal world, he had dreams of a future where he spends equal time with both parents on a week about basis as he loved both his parents equally. X told the Report Writer he was still hopeful that his parents might reunite.
At that time the Family Consultant noted that it was evident that while X was expressing views to live equally with each parent when certain scenarios were put to him about distance, travel, the parents’ respective homes, living with the mother’s new husband and so on, it was clear that X had not really given thought or contemplation to the reality of the proposal. When faced with the reality of the significant distance between each of the parent’s homes and the implications this would have on his schooling, participation in extra-curricular activities, attendance at church and youth group, and his friendships, he appeared to be stumped and was hopeful he would “figure something out”. Ultimately, when brainstorming how this could be organised, X advised the Report Writer that “it would be a lot easier if mum moved closer” but was quick to point out that he would still be happy if she did not.
X was acutely aware that his mother and father have a very poor relationship and that their communication is not pleasant and they did not use very nice words with each other. X felt very sad about the state of his parent’s relationship and their behaviour towards each other. He noted the father turning away from the mother when she walked into the child dispute services area and he indicated that his mother would have likely done the same if the situation was reversed. Given this very poor communication, X expressed the view that he would have to be the go between in communication between the parents if a week on week off arrangement was put in place. He said that “I would have to do all the talking… I’m used to, its fine.”
X described also how he would facilitate negotiations between his parents in terms of making arrangements and having dialogue, and he explained how he would do it, using the phone whilst in the presence of one parent and he would literally talk between them. X has tried to talk to each parent about the other, but they each attempt to change the subject when he initiates these conversations and this also causes him to feel sad.
All through the interview, the Report Writer observed X to be mentioning one parent first and then to follow up that the other parent was the same. The Report Writer noted that it seemed important for X to be seen as viewing his parents equally by not showing any more loyalty to one over the other and noted, “It seemed important for X to be seen as viewing his parents equally by not showing any more loyalty to one over the other.”
X described what he did when the parents behaviour or their conflicted relationship caused him to feel upset, saying that he would direct his anger into football or cricket causing him to “get more vicious” in his play if the anger does not subside. He also described one incident where his father’s behaviour towards him caused him to play more roughly resulting in hurting his fellow football player. X said that he had most likely been behaving like a “smart alec” and his father had hit him either in the stomach or chest as a result. He said it was “like a thump.”
As an alternative to ideal preference of week on week off, X proposed living with his mother. He thought that this proposal was the fairest, as he had not lived with or spent substantial time with his mother for nearly six years. He had not contemplated what this would mean for the time he spent with his father and made some initial comments, that he be dropped around sometimes, if it was alright with his mother and sleep overnight. After those contemplations, when it was pointed out that it has similar implications as his ideal preference to live equally between the parties, “X stated I don’t know it’s so confusing.”
When discussing the current contact arrangements with his mother in the first Family Report, X stated he would continue if there was no alternative but, “I guess I’d have to put up with it. It’s just part of life. Not much I can really do about it.”[3] At that stage, it was suggested to X that the other option regarding his future relationship with his mother may be to spend alternate weekends with her and half the holidays. X was adamant that his preferred option was to spend equal time with each parent.
[3] Family Report dated 5 February 2013, paragraph 45.
In terms of his understanding or feelings about what led to the supervision, he advised that he had never sought this information from either of his parents as he does not feel comfortable in doing so adding, “I hate bringing up that stuff, it makes me sad and I want to enjoy life.”
X was eager to re-establish his previous relationship with his elder sibling Y and his young nephew, Z. He said, “I would love to see Y more often and my nephew.”
The observations between X and each parent revealed X was concerned to ensure his time with his mother a pleasant experience and thus subtly more co-operative in his behaviour towards his mother. In comparison X was observed to be more casual with his father and less focused upon the quality of his time with him, and not feeling as invested in the outcome of his time with the father. The Report Writer viewed this as possibly suggesting he feels secure in his relationship with his father.
In summary the report noted that Dr S had diagnosed the mother with Borderline Personality Disorder, and that if the mother’s comments were an accurate reflection of her future intentions, it could be viewed that she would prioritise X’s safety beyond all else, however, this would not be known until the existing parameters around the mother’s time with X were lessened. The report notes that the father queried the genuineness of the mother’s statements to this effect. The Report Writer viewed the father’s constant view the mother was not to be trusted as being based on his historical view of the events that had happened so far. The Report Writer described his protective desires towards X as similar to the cliché once burnt twice shy.
As to X’s comments during the report, the report writer viewed them as suggesting that X loves both his parents unequivocally and it is likely that in his mind his proposal of equal shared care best represents this. She noted also however that it was evident that X had not thought through the consequences of his most preferred parenting regime, most likely because he is emotionally drive by the need to experience his mother parenting him and not by his common sense. X’s perceptions of how his time with his mother might unfold were described as fantastical given that he is largely relying on his memories of his past experiences with her (when he was aged 6 and under) “which are not likely to be entirely reliable or realistic given that he is now older and in a different developmental stage. Memories can distort over time, particularly in the absence of up to date (unrestricted) experiences.” It was therefore suggested that it would be beneficial for X “to have a taste of reality by spending substantial time with his mother so that he does not acquire an unbalanced view of her which would not aid in his development of a balanced sense of self.”
It was suggested that this could occur through X spending each alternate weekend with the mother and half of the school holidays, with their being added scope for the mother to be included in the school life of X and his extra-curriculum activities. The recommendation was that X lives with his father and spent time with his mother one weekend day a week, eventually transitioning to two days each alternate weekend, and half of the school holidays.
In the second report, the Report Writer notes[4] that the mother attended the interview with a changed proposal. Paragraph 6 and 7 refer to the mother’s changed proposals and they involve X living with her and spending time with the father each alternative weekend, but how often X was to be spend with the father would be, “shaped by X’s wishes.” The report notes that “Ms Strang advised that she and her husband have plans to relocate to the (omitted) area and will be doing this regardless of the outcome of Orders.”[5]
[4] Second updated Family Report dated 18/02/2014, paragraph 10.
[5] Above n, paragraph 7.
The mother was not able to predict how X would cope with a change in his residency though she had a few ideas about how she could assist the transition, including devoting one on one time to both her husband and X.
Reference to the mother advising the Report Writer that she would be relocating to the (omitted) is seen throughout the report as is the effect of this move which is seen as a qualifying factor for the recommendation in paragraph 64, that X live with his mother. The alternate recommendation is based on the mother remaining in (omitted), and that is that X then live with the father.[6]
[6] Above n, paragraphs 7, 10, 15 , 25, 28, 34, 54, 58, 64 and 65.
A week before the trial commenced, the mother filed an affidavit which the mother takes issues with the, “interpretation of my comments that my husband and I would be relocating to the (omitted).” The mother states that “at no stage did I indicate that I would be relocating to the (omitted).” However, and the mother explains and agrees that she told the Report Writer that she was looking at a property at (omitted), about 20 to 25 minutes to the (omitted), that she confirmed with the Report Writer that she was moving no matter what happened in Court. The mother goes on to explain however that she also stated, “Lets be fair, it has to be where Mr L can still go to work and that will be based upon that and this doesn’t meant that we’re getting the house down in (omitted), we are just looking.” She says that the Report Writer replied, “this changes everything, even if you move towards the (omitted), this changes everything.”
The mother asserts that at no stage did she say she was moving to the (omitted) but goes on to explain that “Mr L and I have looked at moving further south from (omitted) and we have discussed as a family unit that we might look at moving away from (omitted) towards the (omitted) so long as Mr L does not have to drive more than 30 or 40 minutes for him to get to work.”
In terms of the child’s views about wishing to live on the (omitted) and the possibility of living with his mother, clearly the mother and her husband do not wish to live further than 30 or 40 minutes travel away from Mr L’s business at (omitted). That being so there are only limited possibilities of moving closer to the (omitted). I do not understand why the mother ever raised this issue at that time during the interviews, when realistically there is no certain plan of moving closer to the (omitted).
I have no doubt that the Report Writer was left with the strong impression that one of the options was now for the mother and her husband to move to the (omitted). During the trial, I queried why she even mentioned that they had looked at a house in (omitted) in the same sentence as a proposed move to and discussions of the (omitted), when that not happening. There was no valid explanation for doing so.
When asked for his initial thoughts of the mother’s proposal that she was seeking orders that X live with her, X did know that this was the Order that the mother would be seeking. X said, “I don’t know. I don’t like to get involved. It would be nice I guess. I would like to live with my Mum, but have her at the (omitted) so I can see my Dad as I’ve lived with him for most of my life. I don’t want to leave the (omitted), or school, or Youth Group.”[7]
[7] Second updated Family Report dated 18/02/2014, paragraph 34.
The mother has seized on to the words that X said in response to the question (about which he had no notice), that “I would like to live with my mum.” Her perception of his views is simply that X wants to live with her. As an example, the mother explained that if X was to live with her, it would involve changing school and that she could not facilitate travel from her home in (omitted) to (omitted) every day. The mother said, “I am trying to provide what he would like in life. And that is to live with me.”
In reality, X made it very clear that he did not want to leave the (omitted), his youth group, his school and he wished to live on the (omitted) and still see his dad, who he noted later on he had lived with for most of his life.
I also note that X was reluctant to make a choice when asked about the mother’s proposal. This is consistent with X’s overarching view expressed in the first report, that he wished to live equally with his mother and father. He said it was largely through curiosity that he wished to live with the mother, but said again that he did not want to leave the (omitted). The report noted that this presented a dilemma and that he was unsure how to resolve this saying, “I can’t just create my whole life around my Mum or the same with Dad. I have to create my own life.”[8]
[8] Second updated Family Report dated 18/02/2014, paragraph 35.
The Report Writer said at this time when she and X were discussing this issue, “neither of us was aware of Ms Strang’s intentions to relocate to the (omitted).”
The Report Writer notes that the father, when he learnt of the mother’s intention to relocate, expressed that, “I’m not sure I want to answer in depth a question like that. I need time to percolate it a bit.” He indicated that he would need to be assured X’s attendance at his youth group would be facilitated. The father expressed amazement that the mother would wish to remove X from his settled existence on the (omitted).
My strong impression from the child’s stated view is that whilst he has a natural curiosity to try living with his mother, he still wants to live on the (omitted), not leave his school or his friends or his youth group and he wants to be able to spend time and stay over with his father whenever he feels like it, if that chance occurred.
When the option of how much time he would spend with his father was explored further with X and he was advised that even this option had similar implications for other aspects of this life as his ideal preference, he stated, “I don’t know. It’s too confusing.”
It was then briefly suggested that another option for X would be that his mother may spend alternate weekends with X in addition to half the holidays and X was in favour of this option particularly if it permitted his mother to attend his school and extracurricular activities but he was adamant that his preferred option was to spend equal time with both parents.
At paragraph 36 the Report Writer continued that there was a sense that X was marginally motivated to experience living with his mother because of his sensitivity towards his father’s apparent anger. He explained that at times he viewed his father as being intimidating on those occasions he gets angry at him for something. He reported he worries his father may hit him again whilst acknowledging he has done so on no more than five occasions in his whole life. He advised that his father was not constantly angry but how his father presents when he is angry was an ongoing cause of anxiety for him. He confirmed that he regularly discussed this with his mother. He then added, when recalling the incident in Melbourne where his father had hit him, that despite the incidents that he described X confirmed that “most of the time my dad is great.”
Given X’s age and maturity, I place reasonably significant weight on the views expressed by X. I also note his tendency to want to be fair and not also to not be involved in such decisions.
S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The family reports overall concluded that X had a good relationship with each of his parents and that he loved both of his parents equally.
It understandable given that X has lived with his father by agreement since he was 6 years old, that he has a more relaxed relationship with his father and he is not under pressure to make it work, or to make things easier for his father, as seems to have been the case in his interactions with the mother. In the first report observations[9] the Report Writer noted that X was observed with both parents. There was nothing remarkable about the observations of X with either of his parents. He played “Hangman” with both and appeared to enjoy this interaction. He appeared relaxed and comfortable in both their presences. The Report Writer noted that the most apparent difference between X’s exchanges with his father and exchanges with his mother was that when he was with his mother he appeared to be concerned about ensuring his time with her was a pleasant experience and thus subtly appeared to be more cooperative in his behaviour towards her.
[9] At paragraph 49.
In comparison, X was more casual with his father and appeared less focussed upon the quality of his time with him. He was observed as not feeling as invested in the outcome of his time with his father and the conclusion was that this may suggest he feels secure in his relationship with his father.
I consider X has adopted the role of being a peace-maker between his parents in his first preference to live equally with each parent. I note also his use of the word “fair” when saying it would be fair that he live with the mother, given he had lived with his Dad for the past 9 years. The Court is not bound to make orders that are “fair” though this issue was raised impliedly and expressly during the trial by her or those acting on her behalf. The mother made statements such as, “I have been this for eight and half years, I have had years of knock backs.”
In the evaluation in the second Family Report, the Report Writer noted that of most concern to her was the issue of the ongoing impasse between the parents. She described the situation as an impasse because there is no overt animosity or conflict between the parents that she could see, but there is a standoff between them that is unlikely to be resolved and which prevents them from parenting collaboratively.
The Report Writer considered that the history up to this point strongly suggests that these two parents will “forevermore parallel parent.” She noted that in the father’s defence, there has previously been a plethora of information to support his concerns regarding the mother, and so it will be likely to just relinquish his long held views and launch confidently into co-parenting with the mother now that her time with X has changed.
The father has given evidence that he doesn’t fully trust the mother. I’m very sceptical of the mother’s alleged ‘mistake’ about saying to the family Report Writer that she was going to move to the (omitted) or closer to the (omitted).
When first asked about his mother, X said his memories of his mother were that she showered him with affection, cooked, cleaned and never yelled or physically disciplined him. The Report Writer described these memories as fantastical and in keeping with the restricted time that X had spent with his mother. The report noted that their relationship now that X was a teenager, would only become apparent when X spent substantial time with the mother. I accept that this is so and that X would have a natural curiosity about how it would be living with the mother. X has spent years living with the father and given the Orders in place, there has been little opportunity to share many experiences as between mother and son. Similarly, the rigours of parenting and the challenges that face parents and children in tolerating each other day in day out, and maintaining good and close relationship through the good times and hard times has not yet happened between the mother and X. X’s relationship is still in the early stages. How the mother will handle conflict whether it is between herself and X or X and her husband, or the pressure of raising a teenager is yet to be seen.
In terms of the mother’s complaints that the father does not provide emotionally for the child and her criticisms of the father for his use of physical discipline, the Report Writer concluded that whilst X’s relationship with his father had some issues, the relationship appears largely positive. The Report Writer was not persuaded by the child’s perceptions of his father’s anger when assessing it to be in his best interests to live with his mother if she relocates to the (omitted). The report states, “To be clear, this has not factored into my assessment. I am not as concerned about Mr Prentice’s alleged intimidation of X as he and his mother are.” The Report Writer concluded that X was a sensitive young man, and whilst the father may seem intimidating when angry given his size/height, she did not get the impression that this was his intention towards X. She also considered that X due to his apparent sensitive nature would find the disapproval of anyone worrisome and would potentially distort the severity of it, albeit unconsciously. The Report Writer referred to an incident that occurred during the family report interviews, where X mistakenly ate the lunch of another child during the process of the session. She observed that the staff made jest of the situation but X still seemed quite concerned about it, despite reassurances, and sometimes mistook the Report Writer’s humour about it to be her actual view. X’s sensitivity was noted as likely shaping how he read the situation.
In relation to X’s relationship with Mr L, who on the mother’s proposal would become the father figure for X whilst living in Mr L’s house, I regard X’s relationship with Mr L as only being in its infancy. Mr L had conversations over the telephone at the same time that the mother spoke with X. There was no physical time between Mr L and X during the period of supervision according to his own evidence. That means that Mr L did not attend at the contact centre.
The mother has plans about how X can be helped to fit in with Mr L as does Mr L, which includes having him do some work around the acreage. Whilst Mr L is well intended, as explained elsewhere in these reasons, the relationship between Mr L and X is largely untested and X is moving into his teenage years. I have lingering reservations about the sustainability of this relationship if X lives full time with the mother, given Mr L’s very direct intervention with the father when he disagrees about an issue, as seen elsewhere in these reasons. Mr L can be inflexible and authoritarian. At times he has very black and white views about matters generally which does not bode well when contemplating the issues which arise raising questioning teenagers and a sensitive teenager such as X.
S.60CC(3)(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
I am satisfied that the father has encouraged a relationship between the mother and child. The extent of the current love and affection that X continues to have towards his mother does in my view, strongly suggest that the father has continued to encourage the relationship between X and the mother for years now.
The mother however seems to harbour resentment towards the father about what she sees as an injustice or hardship over the outcome of the previous litigation. The father seems wary of the mother. Over the past 7 years, X has continued seeing his mother in a somewhat artificial setting. Nonetheless, X’s relationship with the mother has continued. I am satisfied that the father has and will continue to encourage a relationship between X and the mother. He agreed to the cessation of supervision once the expert report recommended it. Given that the previous litigation involved experts assessing risk including psychiatric assessments, I consider the father’s position in waiting to see what the experts currently recommended, as being sensible and child focused.
The mother presents as critical of the father and being unable to genuinely acknowledge that he has been a good father and he has a close relationship with X and X with him.
The mother prefers to focus on and search for negative issues. Her reliance on face book entries between Y and X as evidence of the father’s poor parenting did the mother no credit. The mother showed a naïve attitude towards the life of a boy X’s age if she really believed that because X said he was involved in a fight, that X was at risk in the father’s care. Similarly, X’s conversations with his sister about what he has heard at school, is not the basis for the Court to conclude that the father is a poor parent or X is at risk. It was most revealing that the mother having obtained access to these exchanges between Y and X, did not raise the issues with the father, but instead preferred to take the issues up with her solicitor. I was troubled by the mother’s preparedness to try and vilify the father in this manner. It accords with my view that she retains much resentment and hostility towards him as a result of the Orders made for supervision, which she agreed to.
The mother focuses on what she says is wrong with the father as a parent without acknowledging his many years of solo primary parenting, and the father’s good decisions and success in raising X for almost all of X’s life so far. As X said, “I’ve lived with my Dad for most of my life” and “most of the time Dad is great.”
The mother presents with the impression of now having an entitlement to have X live with her. There was no evidence to suggest that her attitude towards the father has in any way softened, or that she has put the whole experience of having supervision behind her. The current exchanges of information from the mother to the father is illustrative of the entrenched resentment that mother has towards the father. I am not able to accept on the evidence before me that if X lives with the mother, she will encourage and support a relationship between X and the father. The mother is driven by a desire to reverse the previous arrangements and her proposal involved leaving the decision as to X’s time to be spent with the father to X. Given how X has made it clear he does not wish to choose between his parents, this Order leaving the decision to X could, in the wrong environment, leave X under significant pressure if he disagreed with his mother and or Mr L, about proposed time with the father.
Living with the mother away from the (omitted), means that X will have to rely on the mother or Mr L for assistance to travel to and from Mr L’s home and the father’s home. I consider there are multiple pressures that could be placed on X given the proposal to leave it to X to decide when to see his father, as proposed by the mother.
Overall, I am satisfied that if X lives with the father, that his relationship with the mother will continue and will be facilitated by the father. If X lives with the mother, I consider it unlikely that his relationship with the father will be promoted. This is a troubling issue in terms of the mother’s proposal.
S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The likely effect of the child moving from living on the (omitted) with his father and living on acreage in a semi-rural location with the mother and her husband is in my view is profound. The mother has not explained fully to the child where he would be living and what his life would really be like. For a teenage boy who likes the life and buzz of the (omitted), and the social life he currently has, and the mentor at his Friday youth group, a move to another school, and living away from the (omitted) as proposed by the mother is a significant change. There will be stark differences in the busy beach side city community life as found on the (omitted) and which has become so important to X. Changing high schools is a significant move. Leaving his school and school friends, social friends at church and sport he sees day in and day out, will involve significant changes to X’s daily life. X will have to start over again at a new high school. The mother and her husband are looking for another rural location with possibly less land, but it has to be close enough to the husband’s business in (omitted) to allow him to travel to and fro easily and in no more than 30 or 40 minutes. The mother’s proposal is the antithesis of living on the (omitted).
I consider that X will be likely lonely, and he will not be living in a location where he has expressly and strongly stated he does not wish to leave. He currently has friends and a social life readymade.
The mother said that the child could start at another school, and go to another church. The mother said he had made a friend at her church and would be going with “a friend” he has met previously. My strong impression is that this friendship is being overplayed by the mother and her husband. Mr L described the purported friend of X as “some coloured child” that he met once. He seemed to know little of this alleged friend and the mother was in the same position.
The family circle for the child will be dramatically different than it has been living in a close knit family of two with his father for most of his life. The mother is doing a diploma at the moment and says that she is wishing to return to the work force and that the work will likely be in the city. This will involve reasonable travel to and from work for her. The mother says that her husband can collect X from school or look after him after school if she works. I did not get the impression that Mr L saw himself as a quasi-dad to X. I had the impression from his evidence about the tireless work that he has put into building up his business priority and passion lies with the demands of his company. He told the Court proudly how he had built up the business from very small beginnings. He also stated that whilst his own son was put in charge, he liked to be very close by in the wings to make sure everything proceeded as he would wish it to. Mr L is a businessman first and foremost, with adult children and grandchildren, all of whom he wishes to remain physically close to. He does not give the impression of being in touch with young teenagers like X or wishing to play the role of step dad or after school/ vacation carer.
The other impact of the mother’s plans is that X will not be living with his father, but instead, he will be living with the mother and her husband. I have already made reference to my reservations in this regard.
My impression of the change of the child living with the mother, is that he would miss his current life with his father. The geographical environment in a quiet area, on acreage or similar of where the mother proposes living in my view is not in keeping with the kind of lifestyle X has expressed a view to retain.
The mother was in my view trying to minimise the impact of the changes involved for X if X lived with her. I do not accept her suggestion that she will drive the child down to his Friday night youth group each alternate Friday night. I could not see this arrangement being sustainable in the long term. I am not satisfied that the mother is prepared to put her own lifestyle and wishes and those of her current husband (and his own family), ahead of those of X. This impression was born out by the obvious reluctance of the mother to take X to two football games in one day. I do not accept that the mother has turned her mind to the practice sessions required for X’s sport commitments which will need to be organised during the week and getting him from his new school, to the practice and back to the mother’s home. The mother’s plans are all quite tentative.
I note that the mother has cut her time with X short when she has had other family commitments. I had the impression that the mother is trying to juggle two lives, her life with her husband and their commitments and the life she thinks she can offer X.
I am not satisfied that the involvement of X with his much loved youth group would survive in the long term if X lived with the mother. I do not accept the mother really understands all that this involved in this commitment. She seemed to suggest that he would make new friends, start new sports without giving much consideration to how important all of X’s existing schooling, friends and social and church life was to X. I accept the father’s response when he heard the mother’s proposal to have X live with her in (omitted) as was referred to in the family report was correct, the father said that to uproot X from his school, cricket, football and church is likely to remove all his security. X made it very clear in his expressed views that he did not wish to move to another church. The father’s view is that X would be shattered if he was to disconnect from the Church. X’s strong connections within his community, particularly his youth group, were noted in by the Family Report Writer. I accept that the move from the (omitted) to (omitted) for X will have significant consequences which in my view will have a detrimental effect on X’s wellbeing.
It seems to me that the mother has been less than candid with X about what would be happening when he lives with her. What the mother proposes is not at all in keeping with X’s views. I have a strong impression that the mother will ask X to make compromises. The mother and Mr L are planning on moving to a yet unknown other destination. This could involve further changes for X once he leaves the (omitted) and moves in full time with the mother at (omitted) and then move again.
I accept that it is important for X to have the opportunity to progress his relationship with his half-sister Y, as he has stated he wishes to. I consider that this could be accommodated at any time that X spent with the mother. Y is now at an age that she can make arrangements directly with X.
The effect of the orders proposed by the father are that the child will continue on in his well settled environment, in the community which is familiar to him, and in which he has strongly stated he does not wish to leave.
He will also be able to remain settled in his high school, engaging in his social life and significantly, he will have no interruption to his association with his youth group, his youth group friends and mentor. I consider that the continuity of this association is much more assured if the child lives on the (omitted), rather than visits there. In relation to each of the proposals for X, I regard the proposal of the father that X remain living on the (omitted) with him as being more in line with X’s views and that it would enable him to maintain the opportunity to have his emotional needs met through his association with his own church and youth group.
I also regard X remaining with his father as having the advantage that he will continue a loving relationship with both parents, whereas I am not satisfied that X’s continued free and easy relationship with his father will be facilitated by the mother and Mr L.
S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This is a significant issue as the mother intends lives at (omitted) in a location that is off the main highway and about an hour or so travel from the (omitted), or longer depending on the traffic and time of day. The location is far enough away to preclude spontaneous trips to or from the (omitted). I do not accept as I have said that the mother will just drive down each second Friday night to allow the child to go to his youth group and wait around and then drive back. I consider that with the mother waiting to collect him afterwards, that there will be subtle or express pressure for the child to finish up or that there will be nights missed. It is a long trip home on a Friday night starting at 9:30 pm or so after youth group ends. I consider that X’s involvement in his youth group and their activities will much more readily occur if X also lives on the (omitted).
The parties are agreed that the changeovers can happen to and from school where possible and other locations on non-school days.
Given the distance and the travel involved, it is not feasible for X to spend and equal time arrangement between the mother and father while ever the mother continues to live at (omitted) or any location other than the (omitted) or its immediate surrounds. The issues with traffic on the highway to Brisbane can turn an hour’s trip into a much longer journey. In terms of X continuing his current club sports, it is too far to take X home from school and then drive to training for cricket or football and then drive home. The same situation applies if X lives his mother and tries to maintain his ties with his current cricket and/ or football fixtures and other commitments.
Whilst living with the father, X goes to (omitted) after school sometimes with his friends and that he has friends to sleep over from youth group. The father has spent years ferrying X around to his various friends and commitments. I do not accept the mother’s position that she will invite X’s friends up to stay over at (omitted) and that this will enable X to keep in touch with his (omitted) friends. This proposal shows a lack of insight into the ability to have regular spontaneous time with any of his friendship groups and plenty of incidental frequent time. This will not occur if X is driven down to the (omitted) to attend a Friday night youth group session and driven back again. I would have concerns that if this was how his time with the youth group occurred, that the richness of his experiences with the group and friends would deteriorate under the pressure of distance and travel and the demands of life generally.
S.60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that the father is child focused and well in touch with X emotionally. The father has made good decisions about schooling and life in general since 2005 for X. He has done this alone for 5 years pursuant to an order and 2 years before that pursuant to orders. He has been criticised in cross examination for not involving the mother in decisions, however, it seems to me that the father has had an order for sole parental responsibility under the Family Court Orders. This did not seem to be contested during final submissions.
The mother is an untested primary parent since 2005. I am uncertain of her parenting capacity. I have the impression that she minimises issues that are important to X, such as his preferred place of living as the (omitted) and the importance of his existing friendships suggesting he can just make new friends. The mother did not seem to appreciate the isolation her proposal introduces to X’s life and that this was never explained by her to X. The mother is not in my view, as child focused as the father. The mother wishes to live with her husband, away from the (omitted) and have X “fit in” with these arrangements.
I did have a strong impression that the mother was largely motivated to have X live with her because she had missed out in years of parenting, rather than because it was what necessarily in X’s best interests. The mother has a strong sense of injustice about the years she has had supervised time only.
The mother does not seem to acknowledge that the male role model of father figure in her household is her husband who at age 68 is significantly older than X and also X’s father. Mr L has only had minimal engagement with X. The views and attitudes held by Mr L seem quite at odds with the child focused attitude towards parenting and parenting style of the father, who is well in touch with all of X’s day to day needs, likes and dislikes and who has been such a significant person in X’s life. The father has been accommodating and flexible with X’s daily needs, social life, sporting commitments and preferences. The father says, and I accept, that he has ensured that his work hours and conditions are such that he can be available for X and assist him with all of his social and sporting commitments. The father has a deep appreciation of how important these commitments are for X. The mother’s attitude seems to be that they can all be easily replaced. The mother does not seem to appreciate the challenges that this would introduce for X. The mother has made tentative inquiries with schools in her area, but I was left with the impression that even the schooling issue was all quite uncertain.
I am aware of the mother’s alleged concerns about X being intimidated by the father, however, I am not troubled by this. I accept the views of the Family Report Writer in this regard. I regard the mother has overplaying her case in this regard, but it is consistent with her desire to point out the shortcomings of the father, rather than acknowledge his efforts over the past 8 years.
X has had many good times with his father over many years and that he is close to his father who he loves very much. X has also understandably had a strong desire to get his know his mother in a more natural setting and as X said, have her comes to his school and sporting events.
S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
I have nothing to add.
S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, 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 the likely impact any proposed parenting Order under this Part will have on that right
This section is not applicable.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father has shown he has a responsible and child focused attitude to the responsibilities of parenthood. He has been solo parenting for many years. The child is being well educated, has a sound social life, is involved in activities he is enthusiastic about, and X is in my view, set to achieve his full potential in life as a result of the father’s pragmatic and child focused parenting. I regard the father as a good role model in many respects.
The mother has complied with orders for supervision and built up a relationship with the child through spending time with the child. She has demonstrated a strong commitment to keeping her relationship with X going in difficult circumstances. The father too has been committed to keeping X going to the contact centre in equally difficult circumstances.
The mother is an untested primary resident. The mother has not had the years of involvement in every aspect of X’s life as the father has. That is of course the inevitable result of the Family Court Orders.
The mother has remarried and has made a new life for herself with her husband. They appear to be very committed to each other. The financial side of her life is that she is wholly supported by her current husband.
There is a distinct disconnect in the position that the mother now adopts in saying that she will be paying for private school and various other pursuits for X when she herself can afford to pay only $31.00 per month in her financial support of X. The mother is underestimating in my view, her capacity to provide for the child financially and to do the things she says she will do, including enrolling X in a private (omitted) school and having him attend football, cricket, soccer and martial arts.[10] She is not in a position to pay the costs of these activities herself. Rather, it will be her husband Mr L paying these costs. Mr L agreed that he did not pay for private schooling for his own children, but said that was because he was in a different financial position at that time. Mr L has some strong views about how to parent, some of which he has directed to the father. I am concerned that when there is a clash about views and particularly expenditures or challenging views from the teenage X, Mr L’s view will prevail. I consider there is potential for disagreement between X and his stepfather in the future, given the very strong views Mr L holds strong to at times. I was troubled by Mr L’s intervention in an arrangement about the repayment of money, between the father and X. Having control of the finances does place Mr L in a position of having the final word and his tendency to be quite dogmatic at times is seen in his text exchange with the father when Mr L expressed his “disgust” at the father’s parenting. I also had the impression that the mother’s relationship with Mr L is that she would follow and support her husband’s directions, future plans and lifestyle. I consider this family dynamic in the mother’s home will not readily accommodate the needs of a teenage boy such as X.
[10] Mother’s Affidavit filed 19 May 2014, paragraphs 45 & 50.
The mother’s current financial support is less than $8.00 per week to support a teenager. Yet she purports to be able to pay for private school and many activities. I had a strong impression that, as with her other plans for X, the mother has not realty tested this part of her proposal.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family; S.60CC(3)(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order; or the making of the order was contested by a person
There are no Domestic Violence Orders.
This section is not applicable.
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I am satisfied that it is important for X to have his living arrangements settled. His is aware of the difficult relationship that exists between his parents, and he now recognizes that it is time to move on and create his own life. At this age, this is entirely appropriate. He wishes his parents would call a cease fire after all these years. I would urge the parents to give X this one gift, of a having the two people he loves most in the world being civil to each other.
These parties have been through significant litigation in the Family Court and been living under the umbrella of strict orders for supervised time for years.
I suggested to the parties that given X’s age and his approaching 15 years in twelve months, that these orders would be the last orders made about X’s living arrangements. X is clearly worn down by his parent’s ongoing acrimony and inability to develop even a working relationship. The effect of the ongoing conflict is of significant concern to the Court and importantly its affect upon X. X ought not be placed in a position of having to mediate issues between himself and his parents, as he has done in the past.
I consider that is essential that this litigation come to an end. The ICL is of the same view. A continuation of the litigation will likely result in X’s relationships with each of his parents suffering. Some children in his position chose to walk away from both parents as soon as they are able. I hope the parents realise this.
S.60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant
The father has been willing to promote the ongoing time between the child and mother in an age appropriate way, notwithstanding the limited time and manner in which X has spent time with his mother. The mother has attended at the centre to ensure that her relationship with X continues.
The father has shown sensitivity to the child’s desire to spend more time with the mother and to the mother’s requests to do so. He has also been agreeable to going along with and respecting X’s views.
I am left with a lingering doubt as to whether the mother would promote a relationship between the child and the father. The mother shows overtly that she has unresolved issues with the father, and harbours significant resentment toward him. She has readily criticised his parenting, but fails to acknowledge his parenting strengths and his successful raising of X. The father also finds it difficult to trust the mother. At least as the Report Writer says, he has had valid reasons to hold such views in the past. In the event the father finds it of assistance, I intend to make an order as suggested by the ICL that the father be permitted to give his counsellor copies of the two family reports. I will make this order for both parties so that in future counselling, these comprehensive reports can be accessed and utilised by them in an endeavour to improve their communication, with professional assistance.
60CC(2) The primary considerations are:
The benefit to the child of having a meaningful relationship with both of the child’s parents; and
I am satisfied that it is in X’s best interests to spend time with each of his much loved parents. X has expressed his love for both parents and a strong desire for them to cease the war. X is saddened by his parent’s behaviour towards each other. I urge the parents to genuinely acknowledge this.
I have the impression that X is under pressure to do what is “fair” in regards to living with his mother for equal time. X is mature enough to know how the parent’s disagreements play out and he seems to have developed strategies for moving from parent to parent. It is troubling for the Court that neither parent can seem to call a truce to the hostility and conflict.
I am also satisfied that the orders the Court will make will accommodate X maintaining a meaningful relationship with each parent.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In terms of the need for supervision, the father has agreed that given the view of the experts, that there is no longer an unacceptable risk if X spends unsupervised time with the mother or his sister.
Parental Responsibility
One of the most disturbing issues for the Family Report writer has been observing the ongoing conflict between the parties. It was an issue of most concern to the Report Writer who has prepared two very comprehensive family reports. Each of the parties expressly stated that they did not know how they were going to communicate with the other parent. X has opted to take on the role of facilitator between the parents. The resentment and mistrust between the mother and father is palpable and has been commented on in the expert reports.
The poor communication in this matter sensibly suggests that exercise long term decisions regarding X should primarily be made by the parent with whom he lives.
The parties however have agreed to an order for equal shared parental responsibility and that Order has been made. The ICL has agreed to the orders in the hope that it helps the parties move on from their past conflicted relationship, though did so with some serious reservations. I have serious reservations about how this Order will be implemented, however, it is also true that X’s school on the (omitted) is determined, his religion is not in contest and given that he turns 15 at the end of the year, it is to be hoped that there will not be a range of other long term issues to be decided.
I commend the parties for attempting to move forward towards a more conciliatory relationship in agreeing for equal shared parental responsibility. If opportunities to make long term decisions are used as opportunities to be combative with the other parent, the end result will be the X will suffer.
In the event of any dispute about long term issues, I will make orders that the parties attend upon Family Dispute Resolution to assist in resolving the issue through facilitation by a third party.
Discussion/evaluation
The proposals sought by either party concede that X should live with one parent and spend each alternate weekend with the other, as set out in their orders sought. Neither party is seeking an order for equal time and it is not possible given the distance that the parties live apart from each other. Also, they do not have the ability to facilitate such an arrangement given the good communication that would be required for this to successfully occur.
The Court is to decide what Orders are in X’s best interests having regard to the primary and additional considerations based on the options sensibly available, as set out in their respective Orders sought.
At the commencement of this trial, the Court encouraged the parties to agree upon the next 18 months of X’s living arrangements given he was turning 14 in December, and that at 15 essentially X would decide where he would be living. Unfortunately, agreement was not forthcoming.
Obviously, when considering the additional considerations, the views of X are of some significance given X’s age. X has expressed a strong view that he does not wish to leave the (omitted). Significantly X expressed a view that he wished to live on the (omitted), not leave his school and friends, not leave his social life on the (omitted), and not leave his friends and mentor at the youth group. X has not expressed a view to leave the (omitted) and move to live primarily with his mother in a quiet acreage setting.
The mother is in some denial in asserting that it is X’s view that he wants to live with her. X wanted first and foremost to live with each parent equally. He did not wish to get involved in choosing between them. On hearing his mother wanted an order that he live with her, which he had no prior knowledge of, he still wanted to see his Dad who he said has lived with most of life, and he specifically wanted to remain living on the (omitted) and all it holds for him.
In terms of capacity to parent, I am not satisfied that the mother is or will be as child focused as the father. The mother is in a new marriage relationship and seems understandably very committed to that marriage and the future plans of her husband. At this stage in his life, the changes proposed by mother for X are most significant. New school, new friends, new father figure, new household and not living on the (omitted). Significantly he would not be living with his father and would only see his father each alternate weekend or as he chose to, which I have some concerns about.
In comparing the two proposals, I am satisfied that the father’s proposal for X to live with him and spend time with the mother each alternate weekend has more advantages for X. The father’s proposal will see X remain living with his father in a familiar environment, having the benefit of his father’s solid and child focused parenting approach, remaining at his same school with his familiar friends, and being able to continue his regular involvement with his youth group and the closeness of his relationships with his youth group friends and mentor. The father’s proposal that X live with him represents ongoing stability for X.
At X’s age, his peer support group is very significant and X has identified the (omitted) environment as having so many benefits for him as he has explained to the Report Writer who believes X to be strongly attached to his community. The essence of his current life will be lost with a significant move to live with the mother and Mr L in (omitted).
I also consider that the father is well in tune with X’s emotional needs. I reject the mother’s assertion that the father does not provide for X’s emotional needs. The mother’s distain for the father seems to prevent her from acknowledging that he been doing so for years. Now that X is a teenager, he seeks strong support in from his youth group which is entirely age appropriate. The father has fathered X since he was a little boy aged 6. It has been many years now and this fact is ignored by the mother. The ICL Counsel described the mother’s views as being blinkered at times. I agree.
X and his father have been a family unit for 9 years, and in my view, X is acutely aware of this. I am satisfied that the father will facilitate and encourage a relationship with the mother and that he genuinely accepts the benefits for X in having an ongoing relationship with his mother. His willingness to agree to X living with the mother on the (omitted) if she moved to the (omitted) is strong evidence of his commitment.
I am not satisfied that the mother, with her strongly held antagonistic views of the father and her willingness to raise past wrongs towards him at any time, including in text exchanges about the number of football matches to be played, suggests strongly to the Court that she has little ability for facilitating an ongoing relationship with X and the father. There is no evidence to support this. At the trial the mother wanted to put issues in Facebook exchanges with Y before the Court as continuing evidence of the father’s poor parenting. I consider that she is keen to find issues that point to the father being a poor parent, rather than properly acknowledging his good parenting for many years.
As referred to in this judgment, the Court is also concerned with the newness of the relationship between Mr L and X and the uncertainty as to how that will evolve.
The ICL submits the father’s proposal means stability and less disruption for the fabric of X’s life as opposed to the uncertainty offered by the mother’s proposal. The ICL point to the uncertainty of the mother’s proposal. I accept this. The mother and her husband have their house on the market and are planning another move. They are not sure where they are moving too. There is uncertainty about which school the mother would have X attend and the cost. There is uncertainty about whether the proposed move by the mother and her husband will result in X having to change schools again it is entirely possible that it will. That would mean three different high schools for X.
It is also submitted on behalf of the ICL that the mother seems quite blinkered towards genuinely accepting and acknowledging the importance to X of his peer group, his school, his mentor at the youth group and the youth group and his (omitted) way of life. I accept this submission as it accords with my own view.
I also accept that the father will always promote a relationship between X and the mother, as stated by the Report Writer and as demonstrated in the father’s child focused conduct in doing this for years now. It is to be noted as Ms Lyons for the ICL submitted, that the Father’s position at this trial was that if the mother moved to the (omitted), X could live with her primarily. In other words if the mother agreed to live on the (omitted), this matter would have been resolved by consent of the father. The mother however is not planning to move to the (omitted).
I accept the submission from the ICL that the mother will not give her priority to X maintaining his current life on the (omitted). She seeks to disrupt all that is familiar to X and minimise both the value of his commitments and friends and simply says they can be replaced. The mother’s plans to have X’s friends up to stay over is in my view, fraught with difficulty when it comes to the reality of that actually happen. I regard it as a simplistic view. I do not accept that X can maintain his current significant friendship and support groups on the (omitted) by visiting the (omitted) and living in (omitted). The father described and knew X’s friends at school and church and the youth group leader. He gave evidence of X’s engagement in skate boarding and boogie boarding and described a life where he has been taxiing X around to his commitments and from one friend to another. The mother on the other hand seemed to be alarmed that there were two football games on one day that X had to be taken to. As I have noted elsewhere, my impression of the mother’s style of parenting is that X will have to fit in with her commitments and those of her husband. The mother and Mr L did not know the name of X’s alleged “new friends” at the church that the mother took X to on three or four occasions and which she says will replace X’s current church and friends. The description of his friends as being “some coloured boys” was troubling at various levels, and highlighted the genuine lack of engagement with X and his friends. The mother did not know the names of his friends either.
As Ms P observed, the mother’s proposals to keep X in touch with his existing friends will inevitably give due to the pressures of day to day life. With the distance time and travel between the mother’s home and the father’s there is scope for potential for day to day issues in the lives of the mother and Mr L will preclude regular spontaneous travel to the (omitted) and back again. The father has put X’s needs first and foremost. I am not satisfied that the mother’s parenting style is as child focused.
I am also satisfied that if X lives with the father and spends each alternate weekend with the mother, he will, as deposed to by Ms P, have the opportunity to maintain a meaningful relationship with his mother and father.
I have also every confidence that when X turns 15 or 16 if X expresses a strong wish to change schools, change youth group, leave all his friends and live with the mother and Mr L in (omitted) or another quiet area, that the father would facilitate this.
In the meantime, I also regard the father’s proposal that X remain living with him as proposed, as being is in the best interests of X in all respects.
I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of Judge Willis
Date: 22 January 2015
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