Sullivan & Dickens
[2022] FedCFamC1F 317
•13 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sullivan & Dickens [2022] FedCFamC1F 317
File number(s): MLC 571 of 2016 Judgment of: BERMAN J Date of judgment: 13 May 2022 Catchwords: FAMILY LAW – CHILDREN – Parental Responsibility – Where the father seeks sole parental responsibility and the mother seeks equal shared parental responsibility – Where the Independent Children’s Lawyer supports equal shared parental responsibility – Consideration of best interests of the child – Order for equal shared parental responsibility.
FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests of child – Family Violence – Where the dispute is of narrow compass – Where the father seeks to maintain the status quo, namely that the child live with him and spend time with the mother – Where the mother seeks a gradual increase in her time to equal time – Where the Independent Children’s Lawyer recommends an equal shared care arrangement – Where there have been allegations of family violence – Where there have previously been physical altercations between the mother and the child – Where there have previously been child protection proceedings – Where the mother was subject to an intervention order – Where the parties have engaged in 110 hours of therapeutic intervention – Where therapeutic intervention has led to an assessment that there are no current physical abuse issues – Where the best interests of the child will be served by equal time – Orders.
Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 65DAA(5) Cases cited: Gallimore & Gallimore [2018] FamCA 249 Division: Division 1 First Instance Number of paragraphs: 119 Date of hearing: 6 – 8 December 2021 Place: Adelaide Counsel for the Applicant: Litigant in person Counsel for the Respondent: Mr Moore Solicitor for the Respondent: MMH Lawyers Counsel for the Independent Children's Lawyer: Mr Scriva Solicitor for the Independent Children's Lawyer: Southern Family Law ORDERS
MLC 571 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SULLIVAN
Applicant
AND: MS DICKENS
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
13 MAY 2022
THE COURT ORDERS:
1.That all previous parenting orders be discharged.
2.That the parties have equal shared parental responsibility for B born 2010 (“the child”).
3.That the child spend time with the mother as follows:
(a)From the conclusion of school Thursday to the commencement of school on Tuesday and each alternate week thereafter commencing 19 May 2022;
(b)From the commencement of term four, from the conclusion of school Thursday until the commencement of school on Wednesday (or 5.00 pm if a non-school day) each alternate week commencing 13 October 2022;
(c)From the commencement of term three 2023 on a week about basis with changeover to occur each Thursday from the conclusion of school (or 5.00 pm if a non-school day);
(d)Commencing at the end of term four in 2022 for half of the school term holidays as agreed and in default of agreement:
(i)for the first half of the term one school holidays in each year;
(ii)for the second half of the term two school holidays in each year;
(iii)for the first half of the term three school holidays in each year; and
(iv)for the second half of the term four long summer school holidays in each year.
4.That the child live with the father at all other times not specified in paragraph 3 of these orders.
5.For the avoidance of doubt the school term time arrangements provided for in paragraph 3 of these orders shall be suspended during the school holiday periods and resume as if the holiday periods have not intervened, unless otherwise agreed between the parties.
6.That the child’s time with the parties pursuant to paragraph 3 and 4 be suspended to ensure that the child spends time with each of the parties as follows:
(a)With the mother:
(i)For the child’s birthday in 2022 and each alternate year thereafter from the conclusion of school the day of his birthday (or 3.00 pm if a non-school day) until the commencement of school the following day (or 5.00 pm if a non-school day) PROVIDED the mother forego the next weekend that the child would usually live with her.
(ii)For the child’s birthday in 2023 and each alternate year thereafter from the conclusion of the school day before his birthday (or 3.00 pm if a non-school day) until the commencement of school on his birthday (or 3.00 pm if a non-school day) PROVIDED the mother forego the next weekend that the child would usually live with her.
(iii)On the mother’s birthday from the conclusion of school the day before (or 3.00 pm if a non-school day) until the commencement of school the day after the mother’s birthday (or 5.00 pm if a non-school day) provided the child is not interstate or overseas with the father.
(iv)On Mother’s Day from 3.00 pm the day before until the commencement of school the following day (or 5.00 pm if a non-school day).
(v)From 4.00 pm Christmas Eve until 4.00 pm Christmas Day in odd numbered years.
(vi)From 4.00 pm Christmas Day until 4.00 pm Boxing Day in even numbered years.
(vii)On Anzac Day in 2023 and each alternate year thereafter, from the conclusion of school the day before (or 3.00 pm if a non-school day) until the commencement of school the following day (or 5.00 pm for a non-school day).
(viii)On the Queen’s birthday public holiday in 2022 and each alternate year thereafter, from the conclusion of school the Friday before (or 3.00 pm if a non-school day) until the commencement of school the following Tuesday (or 5.00 pm if a non-school day) and, if the operation of this order would result in the child living with the mother for three consecutive weekends, the mother forego the next weekend after Mother’s Day that the child would otherwise live with her pursuant to paragraph 3 of these orders.
(b)With the father:
(i)For the child’s birthday in 2022 and each alternate year thereafter from the conclusion of school the day before his birthday (or 3.00 pm if a non-school day) until the commencement of school on his birthday (or 3.00 pm if a non-school day) PROVIDED the father forego the next weekend that the child would usually live with him.
(ii)For the child’s birthday in 2023 and each alternate year thereafter from the conclusion of school the day of his birthday (or 3.00 pm if a non-school day) until the commencement of school the following day (or 5.00 pm if a non-school day) PROVIDED the father forego the next weekend that the child would usually live with him.
(iii)On the father’s birthday from 3.00 pm the day before until 5.00 pm the day after the father’s birthday provided the child is not interstate or overseas with the mother.
(iv)On Father’s Day from 3.00 pm the day before until the commencement of school the following day (or 5.00 pm if a non-school day).
(v)From 4.00 pm Christmas Eve until 4.00 pm Christmas Day in even numbered years.
(vi)From 4.00 pm Christmas Day until 4.00 pm Boxing Day in odd numbered years.
(vii)On Anzac Day in 2024 and each alternate year thereafter from the conclusion of school the day before (or 3.00 pm if a non-school day) until the commencement of school the following day (or 5.00 pm if a non-school day).
(viii)On the Queen’s birthday in 2023 and in each alternate year thereafter, from the conclusion of school the Friday before (or 3.00 pm if a non-school day) until the commencement of school the following Tuesday (or 5.00 pm if a non-school day) and, if the operation of this order would result in the child living with the father for three consecutive weekends, the father forego the next weekend after the father’s day that the child would otherwise live with him pursuant to paragraph 4 of this order.
7.That the father be permitted to enrol the child at H School, or any other private school within a ten kilometre radius of H School in any year from 2022 onwards provided that the cost of the child’s tuition and all associated costs be solely met by the father and the father shall notify the mother of his intention to do so prior to advising the child of same.
8.The parties will each do all acts and things necessary to ensure that each party:
(a)Be at liberty to communicate with the child on Tuesday, Thursday and Saturday night by voice or video, when in the other parent’s care;
(b)Be restrained from taking the child out of school for any period of time without the written consent of the other, save for in the event of illness or emergency;
(c)Be authorised to request from the principal or proper officer of any school attended by the child for copies of all school newsletters, event notices, school reports and application forms for school photographs, at the expense of each party;
(d)Is promptly provided with any school related communications, and birthday party invitations received by the other parent;
(e)Be at liberty to attend all school functions, events, parent/teacher interviews, school concerts and sporting competitions and events including all extracurricular activities ordinarily attended by parents or by invitation;
(f)Seek and obtain the other party’s consent prior to enrolling the child in any extracurricular activities that are to occur during the child’s time in the care of the other party;
(g)Use their best endeavours to ensure that the child attends all mutually agreed extracurricular activities whilst he is in their care;
(h)Be entitled to have access to and discuss any medical issues including, but not limited to medical records, with any of the child’s treating medical practitioners (at his/her own expense);
(i)Keep the other informed of any illness or accident suffered by the child that requires medical treatment, and as soon as practicable, advise the other of the name and telephone number of each relevant treating medical practitioner or a like professional to discuss the illness or accident, treatment and prognosis with the other party and with any medical related documents, prescription and/or treatment plan promptly communicated to the other party;
(j)Reside within a 30 minute drive of the child’s school save where the father has exercised his entitlement to change schools pursuant to the terms of this order to a school which is more than a 30 minute drive from the mother’s residence from the time of the change.
(k)Keep the other advised of their current residential address and mobile telephone number and advise the detail of any changes within 48 hours of a change in any of those details.
9.That unless otherwise agreed, ensure all non-school changeovers will take place in front of the child’s school.
10.That each party be permitted to travel interstate or overseas with the child for holidays during their time with him, upon giving seven days’ notice for interstate travel and 45 written days’ notice for overseas travel to the other providing that the parent who proposes to travel shall inform the other parent of the proposal to travel in writing, prior to raising the prospects of travelling with the child subject to the following:
(a)If either party wishes to travel with the child outside of their own time they shall seek the consent of the other at least seven days prior to the intended interstate travel and 30 days prior to any intended overseas travel and make up time shall be provided in the event that consent to travel is given;
(b)In either case:
(i)The travelling party shall provide to the other party at least seven days prior to the intended travel copies of all airfares/transport arrangements and itinerary and contact details for the child whilst he is away including all accommodation details;
(ii)The travelling party shall immediately notify the other in the event of an unforeseen change to these arrangements.
11.That the parents do all things necessary and sign all documents required to apply for a passport for the child to issue with the cost of such application to be met equally by the parties provided that the child’s passport will be held by the father in the calendar year 2023 and each alternate year thereafter and by the mother in 2024 and each alternate year thereafter.
12.That the child’s passport shall be released by the party holding same not less than seven days prior to the date of departure with the passport to be returned to the party holding same within seven days of the child’s return.
13.That the appointment of the Independent Children’s Lawyer be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Dickens has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
The proceedings between Mr Sullivan (“the father”) and Ms Dickens (“the mother”) concern the future parenting arrangements for B born 2010 (“the child”). The child is currently 11 years of age.
The father initiated proceedings with the filing of an Initiating Application on 25 January 2016. The parties have been involved in protracted litigation for over six years with the child having undergone numerous assessments by various experts. The child and both parties have also taken part in intensive therapy.
By order made 16 February 2016, an Independent Children’s Lawyer (“ICL”) was appointed to represent the interests of the child.
The matter was originally set down for final hearing in May 2018 before her Honour Justice Bennett, with the matter being adjourned part-heard. During the period of adjournment, child protection proceedings were instituted in the Children’s Court with the child being placed in the care of the father. The final hearing before Justice Bennett was vacated pending the outcome of the Children’s Court proceedings.
On 24 July 2019, interim orders were made by consent of the parties and not opposed by the ICL. The interim orders provided for the parties to have equal shared parental responsibility for the child, for the child to live with the father and spend five nights per fortnight and half of all school holidays with the mother. The interim orders also included extensive ancillary orders.
The proceedings were listed for final hearing before me, commencing on 6 December 2021, with judgment reserved on 8 December 2021. The trial was conducted by way of Microsoft Teams video link from Adelaide to Melbourne.
On 20 August 2021, an order was made pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”). The mother and the ICL were represented by counsel for the entirety of the trial. The father was represented by counsel solely for the cross-examination of the mother and was otherwise a self-represented litigant.
The dispute between the parties is of narrow compass. The father seeks primary care of the child, with the child to spend time with the mother five nights per fortnight whereas the mother seeks a gradual increase in her time with the child, eventually amounting to an equal shared care basis. Both parties seek extensive ancillary orders, many of which appear to be agreed.
By his Case Outline filed 5 December 2021, the father seeks orders summarised as follows:
(1)That the father have sole parental responsibility for the child save that prior to making any decision in relation to any long-term issue, he shall advise the mother in writing, consider any response received and advise her of his decision;
(2)That the child live with the father and spend time with the mother as follows:
(a)During term time:
(i)In week one, from the conclusion of school Thursday (or 5.00 pm if a non-school day) until the commencement of school Friday (or 5.00 pm if a non-school day) and each alternate week thereafter; and
(ii)In week two, from the conclusion of school Thursday (or 5.00 pm if a non-school day) until the commencement of school Monday (or 5.00 pm if a non-school day) and each alternate week thereafter.
(b)For half of the school holidays as agreed but in default of agreement as follows:
(i)For the second half of the term one school holidays in 2022 and each alternate year thereafter;
(ii)For the first half of the term two school holidays in each year;
(iii)For the second half of the term three school holidays in each year; and
(iv)For the first half of the term four long summer school holidays in 2023 and each alternate year thereafter.
(c)During the Christmas period:
(i)In 2022 and each alternate year thereafter, from 3.00 pm Christmas Day until 5.00 pm Boxing Day; and
(ii)In 2023 and each alternate year thereafter, from 3.00 pm Christmas Eve until 3.00 pm Christmas Day.
Although he originally sought that any time the child spends with the mother be subject to the child’s wishes, during the trial the father changed his position, with an oral application that the proposed time spending orders with the mother be amended such that they are not subject to the child’s wishes.
By Further Amended Response to Initiating Application filed 23 November 2021, her Case Outline document filed 5 December 2021 and as amended during final submissions, the mother seeks orders summarised as follows:
(1)That the parties have equal shared parental responsibility for the child.
(2)That the child lives with the father.
(3)That the child spends time with the mother as follows:
(a)During term time:
(i)During the school term commencing next after these Orders, from the conclusion of school Thursday (or 5.00 pm if a non-school day) until the commencement of school Tuesday (or 5.00 pm if a non-school day) and each alternate week thereafter;
(ii)During the school term commencing after the term referred to in (3)(a)(i) herein, from the conclusion of school Thursday (or 5.00 pm if a non-school day) until the commencement of school Wednesday (or 5.00 pm if a non-school day) and each alternate week thereafter; and
(iii)From the commencement of the school term commencing after the school term referred to in (3)(a)(ii) herein, on a week about basis with changeover to occur each Friday from the conclusion of school or (5.00 pm if a non-school day).
(b)For half of all school holidays as agreed but in default of agreement as follows:
(i)For the first half of the term one school holidays in each year;
(ii)For the second half of the term two school holidays in each year;
(iii)For the first half of the term three school holidays in each year;
(iv)For the first half of the long summer school holidays commencing in 2022 and each alternate year thereafter; and
(v)For the second half of the long summer school holidays commencing in 2023 and each alternate year thereafter.
Both parties also seek orders regulating the child spending time with them on special occasions including Easter, birthdays, Mother’s Day and Father’s Day, ANZAC Day, the Queen’s birthday and Halloween.
The balance of the order’s sought by both parties are extensive and include, but are not limited to, various injunctions, orders in relation to obtaining educational and medical information in relation to the child, the child’s education, communicating with the child when the child is not in a party’s care, travel and the child returning to the father’s care when in the mother’s care.
By their Case Outline filed 5 December 2021, the ICL originally sought that the parties have equal shared parental responsibility for the child and that there be an increase in the child’s time spent with the mother. During closing submissions, the ICL indicated that their position in relation to parental responsibility remained the same, however they recommended an equal shared care arrangement.
BACKGROUND
The father is 49 years of age and currently employed as a professional. The mother is 53 years of age and at the time of the trial was studying with an anticipated completion date in 2022.
On the mother’s case, the parties commenced a relationship in 2008 and separated on a final basis in 2010. There is only one child of the relationship, namely the subject child.
It is the mother’s position that up until the child was eight years of age, she was his primary carer given that he was in her care 60 per cent of the time. At the commencement of the proceedings, pursuant to the orders of Senior Registrar Fitzgibbon dated 16 February 2016, the child was living with the mother and spending five nights per fortnight with the father.
The post-separation relationships between the parties and between the mother and the child have been fraught with allegations of family violence.
An incident between the parties in early 2015 resulted in the mother agreeing to a limited intervention order without admissions.
In late 2018, in the midst of these parenting proceedings, a physical incident occurred between the mother and child. The mother alleged she accidentally struck the child, causing injuries to his face. The father alleged the mother struck the child in the face with a plastic dog ball throwing device. Child Protection became involved, issuing a Protection Application with an Accommodation Order being made by the Children’s Court for the child to live with the father and spend supervised time with mother. The mother was also charged by Police with one count of intention to cause harm. The mother pleaded guilty to recklessly cause injury and received a fine, without conviction.
On Mother’s Day in 2020, there was a physical altercation between the mother and the child. The mother alleges the child was hitting her and whilst trying to grab the child’s hands, she scratched his face. It is the father’s position that the mother, having consumed alcohol, assaulted the child. Upon return to the father’s care, the child was taken to hospital for examination. The mother was subsequently charged with unlawful assault and recklessly causing injury to the child. A full intervention order was obtained which suspended the interim parenting orders until October 2020. Upon application made by the mother, the intervention order was varied in order for there to be contact between the mother and the child. The mother was fined with conviction in mid-2021.
On 22 April 2021, a final intervention order was made against the mother without admission, naming the child as the protected person. The intervention order expired on 22 April 2022.
Upon referral from Child Protection on 21 July 2020, the parties engaged in an Intensive Therapeutic Program with Ms J, a social worker and senior case manager in family violence with K Family Services. The parties were referred to K Family Services in order to obtain support with six parenting goals set by Child Protection. The goals included but were not limited to, setting appropriate routines and boundaries for the child, assisting with communication between the child and the mother and strengthening the mother’s capacity to parent the child in order to provide a safe and stable environment. The parties engaged in 110 hours of therapy with Ms J. The mother considers that since she engaged in therapy with Ms J she has “established a closer and more positive bond”[1] with the child. Ms J prepared a report marked as exhibit “2” and she was the subject of cross-examination in these proceedings.
[1] Affidavit of the mother filed 22 November 2021, paragraph 23.
The father is concerned with the mother’s alcohol consumption and the child being exposed to family violence whilst in her care. It is the mother’s position that the father continues to make constant allegations against her parenting and undermines her parenting of the child.
The child is currently in good health and is in grade 5 at L School.
The child is currently living with the father and spending time with the mother pursuant to the interim orders made on 24 July 2019. The child currently spends five nights per fortnight and half of school holidays with the mother, together with time on special occasions. The mother considers that the time she spends with the child is progressing well and that the child has expressed a wish to spend more time with her. The father considers it is in the best interests of the child to maintain the status quo, namely to remain in his primary care and spend time with the mother.
DOCUMENTS RELIED UPON
Part B of the father’s Case Outline document filed 5 December 2021, lists the documents which the father seeks to rely upon.
The father seeks to rely upon the following documents:
(1)Initiating Application filed 25 January 2016;
(2)Affidavit re Dr G filed 18 April 2016;
(3)Affidavit re Carer Smacking Incident filed 11 November 2016;
(4)Order of Justice Bennett dated 14 November 2017;
(5)Case Outline of the ICL filed 15 May 2018;
(6)Affidavit 1 re Hospitalisations filed 22 July 2018;
(7)Affidavit 3 re FDRS filed 22 July 2018;
(8)Order of Justice Bennett dated 6 August 2019;
(9)Order of Deputy Chief Justice McClelland dated 24 February 2020;
(10)Order of Chief Justice Alstergren dated 3 June 2021;
(11)Application in a Case filed 11 October 2021;
(12)Affidavit supporting Application in a Case filed 11 October 2021;
(13)Subpoena 6 – L School dated 20 April 2018;
(14)Subpoena 9 – Victoria Police dated 16 November 2021;
(15)Subpoena 10 – L School dated 22 October 2021;
(16)Affidavit filed 8 November 2021;
(17)Further Amended Response to Initiating Application filed 22 November 2021;
(18)Trial affidavit of the mother filed 22 November 2021;
(19)Historical affidavits filed by the parties;
(20)Subpoena material; and
(21)Documents to be tendered by applicant/counsel.
The father seeks to rely upon several documents, historical in their nature and many of which may no longer be relevant as the case has progressed and some documents have also been superseded by amendments. At the commencement of the trial, I raised this with the father noting that the case had changed and the orders that he now sought are not orders which would necessarily be informed by earlier affidavits he was seeking to rely upon. I indicated to the father that many of the documents he intended to rely upon would not ordinarily be brought to account. I highlighted that I have to be cognisant of orders previously made but that with respect to subpoena material, I am not aware of their contents unless and until they are introduced and admitted into evidence.
I intend to bring to account the following documents as documents which the father relies upon:
(1)Affidavit of the father filed 8 November 2021; and
(2)Case Outline of the father filed 5 December 2021.
The mother also indicated in her Case Outline document that she sought to rely upon subpoena material and documents to be tendered by counsel. As already indicated, I will only rely upon such material if it has been admitted into evidence.
I intend to bring to account the following documents as documents which the mother relies upon:
(1)Further Amended Response to Initiating Application filed 23 November 2021;
(2)Trial affidavit of the mother filed 22 November 2021; and
(3)Case Outline of the mother filed 3 December 2021.
The ICL filed a Case Outline document on 5 December 2021 and did not therein seek to rely upon any other documents.
THE EVIDENCE
The father
The father acknowledged that the parties were largely agreed as to the ancillary orders.
The father considered the text message exchange between the parties in April 2020. The father conceded that it was an unhelpful text exchange between the parties.
The father did not concede that he was other than respectful of the mother nor did he consider that there was any reason for the mother to feel intimidated by him.
The father emphasised the case plan for the child comprising annexure “[Mr Sullivan]O3” to his affidavit filed 8 November 2021. The annexure highlighted his concern that the mother had physically assaulted the child in May 2020 and an intervention order had been put in place which prevented the mother from having any contact with the child and suspended the current spend time with orders. The further consequence, according to the father, was that the child at the time was scared of the mother and resisted spending time with her.
Whilst the child’s concerns had significantly abated, the father did not consider that the relationship between the parties was such that they could co-parent effectively.
The father’s evidence did demonstrate that when the parties were able to focus on the needs of the child rather than their own interparental conflict, agreement was possible. The parties were able to agree upon the level of specialist intervention to assist the child in the management of his seizures.
In answer to questions posed by counsel for the ICL, the father accepted that the orders he sought, namely that any time the child would spend with the mother was subject to his wishes, were too extreme.
When asked to consider that there may be benefit to the child spending equal time with the parties, the father expressed his concern that the child’s homework was not being properly completed and that in the mother’s home there was limited restraint on the child’s propensity to engage in online gaming.
The father considers that the mother is not sufficiently attuned to the child’s special needs whereas he has structured his work to ensure the child is supported.
Whilst the father now acknowledges that the child will be best served by him spending significant and substantial time with the mother, he does not consider that the parties would be able to reach sufficient consensus for shared care to be workable.
The mother
The mother was challenged as to the extent of her consumption of alcoholic drinks. She agreed that the child had raised concerns as to the extent of alcohol consumed by her however she did not agree that his concerns, or for that matter those expressed by the father, were justified.
The mother acknowledged that she consumed alcohol in the presence of the child but that the consumption was modest, infrequent and not on any occasion did it result in her being adversely affected.
In her trial affidavit, the mother set out the therapeutic goals that arose from the intensive therapeutic program with Ms J.
Between mid-2020 and early 2021, the mother and the child attended for a total of 110 hours. It was apparent that a concern expressed by the father and repeated by the child was in respect of the mother’s consumption of alcohol.
The mother acknowledged the following extract from the K Family Services Report authored by Ms J:
In respect to Family Violence, there is no current physical abuse being perpetrated by either parent to child or parent to parent. There is no current rationale to assess [the child] to be at any higher risk of harm than any other 10-year-old child residing with a carer. [The mother] has assured the writer that she will not use physical discipline with [the child] in the future and that she will continue to abstain from using alcohol whilst caring for [the child]. However, this does not conclude that physical violence will not be used in the future and appropriate measures must be taken to inform the authorities should there be a disclosure of harm. …[2]
[2] Affidavit of the mother filed 22 November 2021, paragraph 78.
As a result, at paragraph 80 in the mother’s trial affidavit, she gave an undertaking to abstain from alcohol consumption leading up to and during the time that the child spent with her.
The mother has reconsidered her proposed undertaking and does not now consider that total abstinence is necessary. She considers that the current level of vigilance is reasonable and that sufficient time has now elapsed without incident.
The mother was challenged in respect of an incident in late 2021 when the child decided that he wished to return to the father’s home. The mother readily conceded that she had consumed two glasses of wine but denied that she was intoxicated or that there was any aspect of her conduct or behaviour which could have led to the child being concerned.
The mother denied that she had told the child that if he returned to the father’s home he would not be permitted to return to her home.
The mother agreed with the proposition that it was unlikely she was ever going to be on a friendly basis with the father.
It is the mother’s intention in 2022 that she will work in the beauty sector with a relative who has a business. The mother did not consider that her future employment prospects would interfere with her ability to parent the child.
The mother was asked to reflect upon her relationship with the father and the subsequent involvement of the Department of Health and Human Services (“DHHS”). She considered that prior to 2016 the parties had a reasonable relationship but acknowledged that the incident with the father in 2015, which resulted in the mother hitting the child’s face, was significant. She agreed that she voluntarily entered into a limited intervention order without admission but that the effect was to prohibit her from any further physical contact with the child.
DHHS were involved for a period of four months and during that period the mother’s time with the child was supervised. The mother was frank in her admission that she was rude to DHHS workers but refers to interaction between the parties between 2016 and 2018 during which time the mother contends her conduct and behaviour was principally in relation to the father’s coercive and controlling conduct.
The mother considered the incident that occurred in mid-2020. The mother and her sister had shared a bottle of champagne to celebrate Mother’s Day. When her guests had left, the mother and the child watched a movie. The mother then went to the child’s room and laid down on his bed. The child confronted the mother and accused her of having consumed alcohol to excess.
The child then started hitting the mother in the chest causing bruising.
A short lived altercation then took place whereupon the child then left the mother’s home with the intention of returning to the father’s home.
The child returned to the mother’s home and remained until he returned to the father’s care the next day. The father took the child to the emergency department of the local hospital and made a complaint alleging that the mother had assaulted the child.
The result was the mother’s subsequent arrest and charge with unlawful assault and recklessly causing injury to the child. An intervention order was obtained which suspended the mother’s time with the child until 2 October 2020.
A final intervention order was made against the mother on 22 April 2021.
The mother denied that she had assaulted the child or that her actions were in response to the child’s aggressive conduct.
The mother contends that the father’s coercive and controlling behaviour was in part the explanation for the child’s at times aggressive conduct.
Ms J
Ms J is a social worker and senior case manager experienced in families presenting with family violence.
On 21 July 2020, K Family Services received a referral from DHHS to support the parties with six parenting goals that had been broadly agreed between the parties. The therapeutic process was intensive and ultimately spanning 110 hours with a focus on assisting the parties to support the child’s educational and emotional wellbeing and to strengthen positive relationships between the parties and the child.
Ms J recognised that the child had been exposed to physical discipline by the mother, exposure to fractured parental relationship and ongoing litigation which had an adverse impact on him.
In evidence, Ms J recognised that the parents presented with a significantly different parenting style.
The father rewarded the child with screen time if he had performed well at school whereas the mother resorted to a more disciplinarian approach.
Ms J recognised that the mother’s parenting capacity was a significant issue and accordingly, there was a focus on supporting and reinforcing the mother’s parental authority.
It was apparent from the observations of Ms J that the child would allege that the mother was not telling the truth about the extent to which she would permit him screen time.
Ms J did not consider that there were any issues relating to emotional attunement as between either party and the child. She did recognise that the child could become very physical particularly when dysregulated. As such, a safety plan was developed such that at times of possible aggression, the child and the mother would each go to their respective rooms.
Ms J supported shared care which at the time reflected a 60/40 arrangement.
The significant area of focus was to assist the mother in developing parenting skills that would enable her to modify the child’s behaviour given his propensity to play one party off against the other. Ms J was clear in her assessment that the mother was the weaker party which was recognised by the child therefore making her vulnerable to having her authority undermined.
There had been significant improvement in the child’s behaviour over the period of therapeutic intervention. Ms J spoke to the child’s school and ascertained that there were no significant issues arising. Such was the intense level of the intervention, the father was prepared to recognise and accept that the child was performing adequately at school.
Ms J agreed that the mother had spoken to her of behaviour exhibited by the father that she considered controlling and coercive.
Ms J regarded the child as an innocent party but that the process had become unnecessarily protracted. Whilst recognising that the father would at times react unnecessarily rather than await an explanation, Ms J considered that the parties were high functioning and was surprised that they were not able to resolve their differences about further litigation.
Ms J recognised that there remained significant conflict between the parties in respect of the child’s future schooling. There was also a significant financial disparity between the parties and the mother expressed her upset that she could not provide at the same level as the father.
In interview however, Ms J recorded that the father was positive in his encouragement of the child’s relationship with the mother. As such, the father did demonstrate his preparedness to be respectful to the mother although Ms J recorded that she had cause to speak to the father about her assessment that he exhibited obsessive and pedantic conduct.
Ms J did not think that the extent of the relationship between the child and the mother should be subject to his wishes. She did not attribute sufficient maturity to the child’s presentation that such an order should be made.
The issue of alcohol was considered by Ms J but she did not observe it as a feature in the mother’s presentation.
PRINCIPLES RELATING TO PARENTING
I consider it necessary that I adopt the approach that considers the practical reality of the separate parenting proposals of the parties. I bring to account the considerations of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I propose to adopt the following approach:
(1)Give consideration to the separate proposals put by each of the parties as they were identified to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, if applicable;
(5)Have regard to the additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation or comment.
PARENTING CONSIDERATIONS
Meaningful relationship
The evidence of Ms J reinforces her conclusion and recommendations as set out in her report:
In conclusion, all identified goals have been addressed within the ITP program. Both parents love [the child] and want the best for him. Both parents have worked hard to improve their parenting of [the child]. [The mother] has enacted all suggested strategies to improve her relationship with [the child] and over time, it is expected that trust will be restored. There are no immediate concerns regarding [the child’s] ongoing safety, stability, development and access to his culture & family. However, should [the child] continue to be exposed to parental conflict, he remains at risk of emotional harm. This would affect his relationship with both parents in the years to come as he approached adolescence, if not addressed.
My recommendation is to consider the following:
• For the parents to engage with Functional Family Therapy to assist them to communicate effectively and to quash negative assumptions made.
• For [the child] to continue to enjoy shared care with both parents on the current arrangements. On the 12/01/2021, [the mother] informed the writer that she is happy with the 40/60 ([the mother/the father]) access arrangement going forward.
• For [the father] to support [the child] to visit the maternal side (with [the mother]) of his family in Queensland on a regular basis to ensure [the child’s] relational connection.
• For the parents to adhere to the arrangement agreed to on the FLC orders around Xmas access to ensure that [the child] has contact with both parents.
• Future referral to Family Services as required for support. [3]
[3] Exhibit “2”, pages 8 – 9.
The orders sought by each of the parties are broadly informed by the concluding remarks of Ms J.
The mother seeks for her time to increase from five nights to seven nights per fortnight. In that regard, it appears that she has departed from her stated position to Ms J.
The father resists any extension of time however at the commencement of the proceedings he made a substantial concession, namely that the current arrangement providing the mother’s significant and substantial time with the child should continue.
The difference between the parties is narrow and at this stage is not necessarily informed by a consideration of the extent to which each of the proposals of the parties does or does not support the maintenance of a meaningful relationship.
The ICL supports an extension of the mother’s time to equal time.
The ICL submitted that the current parenting arrangement limits the extent to which the mother can participate in the child’s education, homework and extracurricular activities.
A secondary issue for the ICL is a concern that unless the child’s time with the mother is extended, there is a risk that this will provide the child with a reason to consider that the father holds a superior parenting position and therefore empowers the child to disregard the mother’s reasonable parental direction.
Is the child at risk
The history of conflict between the parties but in particular the mother and the child is unfortunate however, to the credit of the parties and in particular the mother, she engaged in an intensive therapeutic program which ultimately lead to an assessment by Ms J that there were no current physical abuse issues being perpetrated by either party to the child or parent to parent.
It is immediately apparent that were the father to harbor any residual concern, the orders he seeks would be inconsistent with any risk that the mother posed to the child.
The risk to the child arises from the emotional risk of being involved in the mistrust and interparental conflict and the significantly different parenting styles of the parties.
Again, what is being considered is equal time as opposed to significant and substantial time.
Wishes of the child
It is difficult to ascertain the child’s wishes. It is reasonable to find that the child is content with the current arrangements. There is little evidence to assist in understanding what would be the child’s attitude to a change that would see his care shared by the parties.
The child is currently 11 years old, whilst still young, any parenting arrangements put in place will likely require some reconsideration within the next two to three years.
The likely effect of any change in the child’s circumstances
The single most prominent issue identified by Ms J is the mistrust between the parties and the extent to which the mother reacts to what she considers to be the father’s ongoing attempts at control. The mother’s opinion is that any aggression exhibited by the child is a reflection of the father’s coercive control of her.
The father denies that there is any basis for the mother’s concerns and whilst the issue was raised with Ms J, the following remark may place the matter into better context:
The writer observed that [the father] often compromised his own work/leisure schedule to accommodate or facilitate support to [the mother] and [the child] when it was not his access time. Whilst [the mother] interpreted this role as [the father] “being controlling”, it was merely a temporary agreement made by all parties to ensure that [the child] felt safe and that there was a suitable safety plan in place prior to referral to Family Services.[4]
[4] Exhibit “2”, page 8.
The parties are in broad agreement in respect of a number of ancillary orders but given the apparent entrenched position of each of the parties towards the other during their evidence, orders need to be made to ensure that the number of transitions between the two households are reduced to a minimum.
The practical difficulty and expense of the child spending time with each of the parties
There does not appear to be any difficulty in respect of each of the parties being able to provide appropriately for the child. It is likely that the financial position of the father is superior and accordingly he is able to provide what might seem superficially a more interesting environment for the child, however this ignores the genuine advantage to the child of the apparent love and affection displayed and demonstrated by the parties.
There is some good reason to consider an extension of the time the child spends with the mother.
Further litigation
The parties have been before the Court since 2016. The expense, both monetary and emotionally, has been significant and each of the parties are litigation weary.
It is likely however, that the age of the child is such that orders that are now made will have sufficient longevity that if still dissatisfied, there would be little or no utility in either party returning to the Court.
The Court can have some confidence that the proposed orders will bring an end to the litigation.
PARENTAL RESPONSIBILITY
The father seeks sole parental responsibility whereas the mother seeks equal shared parental responsibility. The ICL supports the mother’s application for equal shared parental responsibility and that the child spend equal time with each of the parties.
There is evidence that whilst the parties remain mistrustful of each other, in particular the mother’s attitude towards the father, Ms J considered that the parties were able to work cooperatively together and the lines of communication, whilst not warm or inviting, are nonetheless open and viable.
Even on the father’s proposal, it seems appropriate that the parties should retain shared parental responsibility. I bring to account the primary and additional factors as set out in s 60CC of the Act and consider that given the strong recommendations of Ms J and the early history of the matter, wherein the child was in the primary care of the mother until 2018, the interests of the child is best served by an order for equal shared parental responsibility.
CONCLUSION
If an order of equal shared parental responsibility is made, s 65DAA of the Act requires that the Court must consider whether the child spending equal time with the parties is both in his best interests and reasonably practicable as provided for in s 65DAA(5). In the circumstances of this case, equal time is practicable and therefore the focus is whether it is in the child’s best interests for such an order to be made.
In Gallimore & Gallimore [2018] FamCA 249 Watts J stated:
113.I accept the submission of counsel for the husband that the word “consider” in s 65DAA(1) has the meaning adopted by the High Court in Bondelmonte, namely an obligation to give “proper, realistic and genuine consideration.”
The best interests of the child will be served by an order that his time with each of the parties be shared equally.
I do not ignore the evidence that there may well be an alliance between the child and the father and that historically there has been some animosity displayed by the child towards the mother.
I am not able to find that any aggressive behaviour of the child towards the mother is a reflection of the father’s attitude towards her, however, whilst there are different parenting styles, the current arrangement has indicated the child’s resilience in dealing with the different parenting arrangements in the two households.
There is some force in the concern expressed by the ICL that orders should be made which do not prefer one party over the other.
The evidence has been presented that either of the parties are not able to properly attend to the child’s day to day and immediate needs such as education and extracurricular activities.
The way forward, considering that there may be a need for the child to adjust to a changing domestic arrangement, is to put in place a graduated increase in time. I will make orders that the parties have equal shared parental responsibility and to increase the time the child shall spend with the mother by a further night to come into operation six months from the date of these orders and then for the parties to have equal time twelve months after. The import of the orders is to cause the child to spend equal time with each of the parties as and from eighteen months of the date of these orders.
The parties are agreed as to ancillary orders.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 13 May 2022
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