Sykes and Sykes
[2013] FamCA 922
FAMILY COURT OF AUSTRALIA
| SYKES & SYKES | [2013] FamCA 922 |
| FAMILY LAW – CHILDREN – PARENTING ORDERS – Where final parenting orders were made by consent in 2010 – Where the father seeks that the 2010 orders be discharged and new orders be made – Where the mother opposes the father’s application but proposes that the 2010 orders be varied – Where both of the parties were self-represented. FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Best interests – Where the Court considered the presumption of equal shared parental responsibility and whether, in this case, the presumption had been rebutted – Where the Court found that it was in the child’s best interests to make an order for sole parental responsibility in relation to significant long term decisions. FAMILY LAW – CHILDREN – WITH WHOM A CHILD LIVES – Best interests – Where the father seeks that the child lives with him and where the mother seeks that the child lives with her – Where the child has a half-sister who lives with the mother – Where the father wishes for the child to live and attend school in Sydney and the mother wishes for the child to live and attend school on the Central Coast of New South Wales. FAMILY LAW – FAMILY VIOLENCE – Where in the past there was an incident of family violence perpetrated by the father against the mother – Where the incident was not given such significant weight as to outweigh the Court’s greater concern with respect to the mother’s inability to foster the child’s relationship with the father. |
FAMILY LAW – FINANCIAL PROCEEDINGS – SETTLEMENT IN RELATION TO MARRIAGE – Where final property orders were made in 2010 – Where each of the parties now seek to have those orders varied – Where neither party sought an order pursuant to s 79A of the Act – Where on the evidence there was found to be no ground which could have invoked s 79A of the Act – Where the applications for financial orders sought by each of the parties were dismissed.
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPLICANT: | Mr Sykes |
| RESPONDENT: | Ms Sykes |
| INDEPENDENT CHILDREN’S LAWYER: | Independent Children’s Lawyer |
| FILE NUMBER: | SYC | 950 | of | 2009 |
| DATE DELIVERED: | 27 November 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 30 & 31 October 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Neville |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | KDB Holmes Solicitors |
Orders
IT IS ORDERED
That all previous parenting orders in relation to the child X born … 2006 be discharged.
That the child X (“the child”) born … 2006 shall live with Mr Sykes (“the father”).
That the father shall have sole parental responsibility in relation to significant long term decisions for the child.
That the father and Ms Sykes (“the mother”) shall each have parental responsibility in relation to day to day matters when the child is in their care.
That prior to the father making any decision relating to a matter, other than a day to day matter, the father shall, except in the case of an emergency, give the mother 14 days’ notice in writing, by letter, text or email, of his decision and consider the mother’s views expressed in response before making any decision and advise the mother of his decision before the decision is implemented.
That during school terms, the child shall spend time with the mother each alternate weekend from after school on Friday until the commencement of school on Monday (or on Tuesday if the weekend is a long weekend) and the mother shall collect the child from school on Friday afternoon and return her to school on Monday morning (or on Tuesday if the weekend is a long weekend).
That in the event that Mother’s Day falls on a weekend when the child would be in the care of the father, then the child shall spend the weekend of Mother’s Day with the mother, foregoing the following weekend.
That in the event that Father’s Day falls on a weekend when the child would be in the care of the mother, then the child shall spend the weekend of Father’s Day with the father, foregoing the following weekend.
That in each school holiday period at the end of Terms 1, 2 and 3 of each school year, the child shall spend the second half of each holiday period with the mother.
That in the Christmas school holiday period commencing at the end of Term 4 in 2013 and in each alternate year thereafter, the child shall live with the mother from 9.00am on 26 December for a period of days which represents half of the school holiday period and the mother shall return the child to the father at 9.00am on the final day of her half of the school holiday period.
That in the Christmas school holiday period commencing at the end of Term 4 in 2014 and in each alternate year thereafter:
11.1The child shall live with the mother from after school on the last day of Term 4 until 9.00am on 26 December, when the mother shall deliver the child to the father; and
11.2The child shall live with the mother for a second period of days concluding at 9.00am on the day before the child commences school the following year, with the second period of days to be calculated to ensure that overall the child spends one half of the Christmas holiday period with her mother.
That for the purpose of all school holiday periods:
12.1School holiday periods shall be calculated from the day immediately after the last day the child attends school until the day immediately before the child attends school in the following term.
12.2Changeover, when the child is not collected from or delivered to school, shall take place at 9.00am at McDonald’s Family Restaurant … unless the parties otherwise agree in writing by letter, email or text.
That the parent with the care of the child at any time shall ensure that the child is able to make and receive telephone calls to and from the other parent at any reasonable time on Monday, Wednesday and Friday.
That the parent with the care of the child shall ensure that the child telephones the other parent on 24 December before she goes to bed and on 25 December not later than 8.30am and on the child’s birthday not later than 8.30am.
That each parent shall keep the other informed of any injury or illness which the child may suffer in his or her care.
That each parent shall authorise any medical practitioner upon whom the child attends to provide information to the other parent.
That the father shall authorise any school which the child attends to provide to the mother such information as she may request to be provided or forwarded to her.
That each parent is restrained from denigrating the other parent or any member of the child’s family when the child is in his or her care.
That the applications for financial orders found at paragraphs 5 to 9 inclusive of the father’s Amended Initiating Application filed 23 April 2012 are dismissed.
That the applications for financial orders found at paragraphs 1 to 16 inclusive of the mother’s Response filed 28 February 2011 are dismissed.
That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sykes & Sykes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 950 of 2009
| Mr Sykes |
Applicant
And
| Ms Sykes |
Respondent
REASONS FOR JUDGMENT
THE PROCEEDINGS
Before the Court are applications arising out of the marriage of Mr Sykes (“the father”) and Ms Sykes (“the mother”) in relation to financial matters and parenting arrangements for their child, X (“the child”), born in 2006.
The parties married in 2005, separated in 2008 and were divorced in 2010.
The mother filed an application for property settlement on 20 February 2009. The matter was first before the Federal Magistrates Court (as it then was) in March 2009 when procedural orders were made in relation to property settlement. On 23 November 2009 the father was directed to file an amended response setting out the parenting orders which he sought and an Independent Children’s Lawyer (“ICL”) was appointed.
On 4 January 2010 the parents saw Ms S, a Family Consultant, and a Memorandum was prepared for the Court.
On 2 July 2010 a Family Report was released. The report was prepared by Ms M, also a Family Consultant.
On 12 July 2010 the parties resolved the parenting issues and orders were made by consent. The effect of those orders was, broadly, that the child, who was three and a half years old, lived with the mother and spent time with the father on a gradually increasing program. Notably, among a raft of machinery provisions, there was an order that the mother be restrained from moving the child’s residence outside the Sydney metropolitan area.
On 18 August 2010 the father filed a Contravention Application, alleging that the mother had, within a short time after the parenting orders were made, contravened the orders. The first alleged contravention occurred on 31 July 2010. It is unclear from the record whether that application was dealt with. A second Contravention Application was filed on 29 September 2010 alleging contraventions between 31 July 2010 and 5 September 2010.
On 20 August 2010 final orders were made by consent in relation to the property of the parties.
On 28 January 2011 there was a further conference with a Family Consultant, Mr L, and a Memorandum was prepared.
The mother filed a Contravention Application on 25 March 2011.
Both applications were heard by Federal Magistrate Altobelli (as he then was) on judgment delivered on 28 June 2011. His Honour, having commented on the extreme conflict between the parties and the detrimental effect on their daughter, found that the mother had contravened the orders on 31 July, 7 August, 1 September and 5 September 2010 without reasonable excuse. His Honour found that the father had contravened the orders on 6 September 2010, 9 October 2010, 15 October 2010 and 6 January 2011.
On 1 May 2012 a second Family Report, prepared by Mr L, was released. By this time the parties had the benefit of two conferences and two full Family Reports.
The matter was listed for final hearing on 18 March 2013 but that hearing was administratively vacated on 3 December 2012 and hearing dates were allocated on 11 March 2013 for three days.
The parties continued their dispute, both in relation to their daughter and their property. Between 13 July 2010 and 8 February 2013, the record suggests that the parties appeared 20 times in the Federal Magistrates Court (as it then was).
On 29 January 2013 (a day when the parties were at Court), in circumstances which will be fully examined later in these reasons and without any notice to the father, the mother removed the child from her school near her home in a southern Sydney suburb, and enrolled her at the G School in town K on the Central Coast of New South Wales.
The father filed an application returnable on 6 February 2013 seeking the return of the child to her school. The mother contested the father’s application for the child to be returned. Judgment was delivered on 8 February 2013 and the child was ordered to attend her former school. On that day, the matter was transferred to the Family Court of Australia.
On 28 October 2013 a third Family Report, prepared by Ms M, was released. The final hearing before me commenced on 30 October 2013.
THE FINANCIAL MATTERS
On 25 August 2010 final orders for property settlement were made in the Federal Magistrates Court (as it then was). Before me, both parties pursued applications to vary those orders. The father’s application was to enforce the orders and to vary them.
Each filed evidence to justify a variation of the orders, which have not been put into effect. Pursuant to the consent orders, the mother was entitled to retain the home, provided that, within six months of the date of the orders, she refinanced the loans secured against the property and provided the father with a stamped and executed transfer. In the event that the mother failed to comply with the time limits relating to the refinancing and transfer, the property was to be sold and the orders specified the division of the proceeds.
The mother did not comply with the orders within the required time and the transfer and discharge authorities for the loans were forwarded to the father by letter dated 12 April 2013. The father refused to sign the documents and required the sale pursuant to the orders.
Before me the father sought to enforce the orders for sale but to vary the orders for distribution of the proceeds.
The mother sought to vary the orders so as to retain the property and she sought the payment by the father to her of certain sums.
Neither party sought an order pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) and a reading of their affidavit material in support of their applications did not reveal any ground on which s 79A could have been invoked. Accordingly, the parties were advised that their respective applications to vary the orders would be dismissed.
The father’s application to enforce the orders could be regarded as an application for the appointment of a trustee for sale. The order he sought was: “That this court appoint someone to oversee the sale of the property [address stated]”.
The father’s application needs to be amended and to comply with the requirements in the Family Law Rules 2004 (“the Rules”). The existing application should be amended and will be dismissed.
THE PARENTING PROCEEDINGS
The Court was greatly assisted by an ICL.
Each of the parties, who represented themselves in the hearing, filed an affidavit.
The Court had the advantage of three Family Reports and two memoranda from Family Consultants. The most recent Family Report, prepared by Ms McM, was released only days before the trial and Ms M also gave evidence at the hearing. She was the same Family Consultant who prepared the Family Report released on 2 July 2010. Thus, the Court had the advantage of very recent interviews and evidence in relation to the family and to Ms M’s observations of the family three years ago and at the present time.
Ms M was cross-examined and her evidence was unshaken although challenged, particularly by the mother. Where, in these reasons, I have set out the evidence of Ms M, I accept her evidence. The author of the second Family Report, Mr L, was not required for cross-examination.
The father sought orders that the child live with him and that he have sole parental responsibility for her. He proposed that the child spend each alternate weekend from Friday afternoon until Monday morning and half of all school holidays with the mother.
The mother sought orders that the child live with her on the Central Coast and attend G School. She proposed that the child spend time with the father on alternate weekends with the time starting after the child’s sporting commitments finished. In the event that the child lived with the father, the mother sought orders that the child live with her every weekend. The mother did not specifically deal with holiday time but was not heard to oppose the father’s suggestion of half holidays with each parent.
HISTORY
The history of the relationship between the child and her parents is difficult to set down. The evidence was imprecise and, at times, confusing.
When the parties commenced their relationship in February 2005, the mother had a child, Y, who was born in 1996. Y lived with the parties until they separated and was known by the parties’ surname. The mother and Y’s father separated in 2001 and Y had no relationship with her father.
When the child X was born, in 2006, the mother went back to work on a part-time basis and sometimes from home after a short period. The father stayed at home and cared for both of the children. It is not clear how long that arrangement lasted; the father says six months and the mother says the period was three months. I find that the father cared for the child after she was born for at least three months. The mother returned to full-time work in February 2007.
When the parties separated on 6 March 2008, the child was a little over two years of age. The mother and the children stayed in the former matrimonial home at suburb H which was jointly owned and was to be, and remains, the subject of continuing dispute.
Between separation and November 2008 they arranged the child’s care between them. Neither complains about those arrangements.
In November 2008 there was an incident where the father went to the home and the parents argued, it would seem, about money. The father was holding the child in his arms. He says that the mother pushed a camera in his face, he pushed her away and she dropped the camera which was damaged. Leaving the property he pushed over a fountain. The father was charged with assault and damage to property. He pleaded guilty. In his affidavit the father says: “This was the biggest mistake of my life and one that I deeply regret”.
An interim Apprehended Domestic Violence Order (ADVO) was issued for the protection of the mother and the child. The father applied to the Court to remove the child from the order. The mother opposed that application. The mother alleged that the father was taking illegal drugs. The father took a drug screen. The mother asked for an undertaking that he not use drugs. He signed the undertaking. The mother did not allow the father to see the child. In cross-examination the mother said that her reason for not allowing time with the child was that the father would not give the undertaking in relation to drugs.
That was clearly not true. On 2 January 2009, the father wrote to the mother’s solicitors, saying:
It has now been three weeks since I sent you a signed copy of your clients undertaking along with a copy of a drug screen that I had done. I am wondering why I have not heard from you.
The letter concluded:
In regard to access with [the child], it has now come to the point where I feel I need to give you a deadline of two (2) weeks (Friday 16th January, 2009). If I do not hear from you by that date, I will be initiating legal procedures.
On 3 March 2009 the father was placed on a bond and an ADVO was made for the protection of the mother for two years.
After the November 2008 incident, the difficulties about the father spending time with both children commenced.
Tendered in the mother’s case was a hand written affidavit sworn by the father on 29 August 2009. He records:
On Sunday 7-6-09, I awoke to find a text message on my phone from [the mother]. It was sent in the middle of the night and said, “Been out with some old friends tonight. Most can’t believe we no longer together, thought we were a great couple. Such a pity.” I replied to her that it is a pity, but it is a tragedy that a little girl can’t see her Daddy. A handful of messages went back and forth until I received one that said, “if you had negotiated or settled (property) it would all be resolved.
The Memorandum prepared by the Family Consultant, Ms S, following the interview with the parties, including sessions with the children X and Y, on 4 January 2010 records that the father told Ms S that the mother had withheld both children after the November 2008 incident and that he had not spent time with either of them for the whole of 2009. Having regard to the matters deposed to in his affidavit, that statement was not correct, but I accept that his time with the children had been limited and curtailed by the mother.
Recent arrangements had been put in place allowing the father to spend four hours each week with the children. The Family Consultant observed X with the father, noting that the child demonstrated an open affection towards her father and that his behaviour towards her was child focussed, relaxed and age appropriate. The Family Consultant recommended that the child have more time with her father and that there be a graduated and staged approach to overnight time for the child with her father.
A Family Report was prepared by Ms M on 1 July 2010. By that time the father and the child were spending time together on Tuesdays and both Y and the child spent time with the father on Saturdays. The father was working part-time to allow him to spend time with the child. The Family Consultant observed that the child was very comfortable with her father:
She chatted with him, laughed with him, made frequent eye contact with him and was happy to sit on his lap. [He] interacted with [the child] in an age appropriate manner and they both appeared to enjoy being together.
Ms M records the mother making complaints about the father. These include that he is working more hours than he admits, so as to avoid paying child support, and that his step-brother, who the father says does not live with him, has a criminal conviction. The mother told Ms M that she had employed a private investigator to ascertain the father’s work hours and who lived in his house.
In relation to the incident in November 2009, Ms M observes that the mother and Y see this incident as extremely significant and that the mother took the opportunity provided by this incident to distance him from her life and that of the children. Ms M observed that the mother could have viewed the father’s behaviour in the light of their post-separation conflict and chosen to minimise its effect but rather, it is likely that she has done the opposite and used this event to undermine Y’s relationship with the father. Y made a number of comments that suggested to Ms M that, if the mother were willing to encourage her to spend time with the father, Y’s relationship with him could be rebuilt. That, Ms M said, would be in Y’s best interests.
Ms M commented that the father’s focus was on his battle with the mother rather than understanding what is in the child X’s best interests and that it seemed likely that the mother will have great difficulty in facilitating the child’s relationship with her father.
Ms M recommended that the child’s time with her father increase so that, by the time she started school, she would be spending each alternate weekend and one night in the intervening week with the father.
Between 4 September 2010 and 22 October 2010, in circumstances which are disputed, the child lived with her father. Sunday 5 September 2010 was Fathers’ Day. The orders of 12 July 2010 provided for the child to spend the weekend of Fathers’ Day with the father from 4.00pm on Friday until 4.00pm on Sunday. For part of that period the mother went on holiday to an overseas destination to celebrate her fortieth birthday. She advised the father by letter (undated) that she intended to take a holiday and would be away from 19 September to 13 October 2010 and asked if he would care for the child. The father was not told that the mother had overseas.
On 22 August 2010 the father wrote to the mother acknowledging receipt of her notification about her holiday and saying:
…if you do take this holiday, I couldn’t possibly take that long off work. But I would like to work together with whoever is going to be looking after [the child] and have her for a larger percentage of time during that period.
Whether or not any concluded arrangement had been reached for the father to care for the child during the period the mother intended to be on holidays is not clear. The events are open to the interpretation that the mother decided to leave the child with her father and give him no alternative but to care for her so that she could go on holidays. The mother offered no alternate explanation.
It is difficult to piece together the sequence of events from the parties’ affidavits. The father says that the mother failed to collect the child on 5 September 2010. The mother does not deal with the event in her affidavit. Thus she gives no explanation for her failure to pick the child up after Fathers’ Day and no explanation for failing to collect her when she returned from her holiday, presumably on 13 October 2010.
On 22 October 2010 the matter was before the Federal Magistrates Court (as it then was) and the child was returned to the mother. Orders were made that the child live with the mother each Thursday after day care until 7.30am on Monday and with the father from 7.30am on Monday until the commencement of day care on Thursday. An order was made for the preparation of a Family Report.
The mother brought an application for contravention in relation to the father’s alleged non-compliance with the parenting orders in having the child in his care. That application was heard by Federal Magistrate Altobelli (as he then was) in conjunction with the father’s contravention application, as is set out earlier in these reasons. In his judgment, delivered on 28 June 2011, his Honour said:
The mother’s evidence is that for part of the period i.e. 19 September to 13 October, on a holiday [overseas]. The father says he intended to and wanted to return [the child] but the mother did not want her back. The father says he was at times reluctant to keep [the child] for all of the relevant period.
The mother agrees that after she filed for recovery, she received advice from the police not to try to get [the child] back. I must say that is remarkable advice if that is what in fact the mother was told. This was clearly a highly stressful period for [the child]. Both parents acted with remarkable, indeed breathtaking insensitivity to her and massive lack of insight. Both were, I am satisfied, playing games with each other, trying to hide their real intentions whist second-guessing what the other’s intentions were.
His Honour found that the mother could have collected the child at any time but insisted that the father return her.
The mother appeared to be oblivious of the effect on the child of her disappearing out of the child’s life for almost seven weeks. When asked in cross-examination whether those events may have affected the child, she said that the events demonstrated that the parents could not communicate and co-operate. As to any effect on the child, the mother acknowledged that the child may have been affected, saying “I think it is one of her problems”, but she also said that she was not completely to blame for any effect on the child.
When the parties, the child and Y next met with a Family Consultant on 28 January 2011, the Memorandum by Mr L notes that:
According to the father [the child] has settled well into the current aprox. (sic) equal time arrangement. According to the mother this is not the case. She reports [the child] as being: somewhat withdrawn since Oct (sic) this year; behaving in a furtive manner such as appearing to “shoplift” in shops and being overly worried about issues such as spilling a drink.
Observations indicated that [the child] has familiar attachment relationships with both parents and with her half sister [Y]. A perhaps significant feature of her behaviour throughout this morning was wanting to know where her parents and sister were located – she seemed to need reassurance that they would be where they were supposed to be. This may be a reaction to the events of October 2010 when she did not see her mother for around six or seven weeks and perhaps also to not seeing her father for a considerable period when she was a toddler.
Contrary to what she told the Family Consultant, the mother in cross-examination said that the child thrived in the arrangement, whereby the father cared for her from Monday to Thursday, and that the shared care arrangement, in her view, was working.
The child was to start school in 2012. She was living with the father from Monday morning to Thursday afternoon. On 10 September 2011 the father sent a text to the mother asking if she would agree to the child being enrolled at U School. He said, inter alia: “I realize we have not come to an agreement, but think she needs to be at least enrolled, even if she does not end up going to that school”. The mother replied to the effect that she did not agree with enrolling the child at U School and that she “would not be comfortable signing the enrolment form”. The father enrolled her at U School, which was closest to his home.
The mother enrolled the child at H School, which was closest to her home. She did not consult the father prior to doing so.
On 13 October 2011 the father sent a text to the mother advising her that the child was enrolled at U School and advising the dates of the parent information session in November. The mother replied by stating, inter alia: “[The child] is enrolled at [H] school. I posted the confirmation letter to you last week with the details of parent meetings”. The father responded to the effect that he had received no letter and he again asked for the child to go to U School because it was closer to his home and because the mother was planning to sell the H home. The mother did not reply.
On 7 November 2011 the father sent a text message asking for details of the child’s dance concert saying he would love to see her dance. The mother responded in relation to other matters but not the dance concert. The father sent another text message stating “And dance concert?”, to which the mother replied: “If you had told me you wanted to go earlier no prob but tickets sold out now. Sorry [signed]”. On 14 November 2011 the father texted: “Could you pls give me name of [the child’s] dancing so I can try get a ticket to her concert. Ta”. The mother replied: “Tickets are sold out. And I don’t think it would be good to put [the child] in an uncomfortable situation. Maybe when we have a better relationship can we do joint functions. Thanks [signed]”.
Also on 14 November 2011 the father sent a text message to the mother reminding her of the parent day at U School on Wednesday. He said that he and the child would really like the mother to come. The mother responded: “Would have really liked to have some input into her school and not just been told your decision was the only option. Yes very sad for [the child]”. The father responded: “Is only option, as she is with me 4 weekdays per week. You are the one who wanted weekends all to yourself. Also house will be sold come May next year”.
On 25 November 2011 the mother sent a text message about “[The child] big school visit” at H. There ensued a series of text messages between the parties. The mother was intransigent.
When it appeared that an impasse had been reached and that the child would not be able to start school at all, the father agreed to her attending H School, despite that school being about 20 minutes’ drive from his home where she lived on most school days.
On 5 April 2012 an incident took place at the home where the mother and the children lived. The mother was not present. The father’s evidence is that the child was in his care on that day and that he did not have her sports uniform. The mother does not give any evidence in her affidavit about this incident but she tendered, in her case, a page of an affidavit sworn by the father which sets out his version of events which, in the absence of any contrary evidence, I accept.
The father says he sent a text to the mother on 30 March 2012 to remind the mother to bring the sports uniform on Monday when she handed the child over to him. The text message was in evidence. On Monday 2 April 2012 the father sent a further text message asking if he could collect the sports uniform and joggers from Y that afternoon. That message was in evidence. No reply was made by the mother to either message. A third text message was sent but received no reply.
On Monday afternoon the father, with the child, went to the mother’s home. No-one was there. They drove off and saw Y on her way home so they returned. Y screamed at the father but eventually agreed to take the child into the house and change her into her sports uniform. There was further screaming. Y made a complaint to the Police, the result of which was the issuing of an interim ADVO naming Y, the child and the mother as protected persons.
On 10 April 2012 the father attended at the Local Court and argued that the child should be removed as a protected person in the interim ADVO. The Magistrate agreed, removed reference to the child and listed the matter for a defended hearing. At the hearing the ADVO was dismissed. Y lodged an appeal which was listed for hearing on 24 August 2012 at the District Court and dismissed. The mother, in her oral evidence, said that she was proud of Y for pursuing the appeal.
A further Family Report was prepared by Mr L, a Family Consultant, and released on 1 May 2012. At the time of the interviews, the child was living with her father from Monday to Thursday and with her mother from Thursday afternoon until Monday morning. The issues were noted as being: “Whether it would be in [the child’s] best interests to live primarily with her father or live with the parents on a more or less equal time basis”.
On 18 May 2012 the orders were varied so that the child lived with her father from Monday to Thursday in each alternate week and from 3.00pm Saturday to before school Tuesday in the intervening week.
In late 2012, on the child’s birthday, the father sent a text message to the mother at 9.35 am saying: “I have tried to call [the child] for her birthday. I will continue to try calling all day”. The mother did not respond. Between 10.50am and 6.02pm the father called the mother 18 times. She initially denied that he was calling the correct number, which seems a curious position to take having regard to the earlier text message. Her position was variously that she didn’t hear the phone, that she was out of the house, that they were at the beach for the child’s party and did not take the phone with them, or that Y had the phone. She said that Y told her that the father had called and that she (the mother) assumed that the father had spoken to the child. Whatever may have been the reason, the mother did not ensure that the child spoke to her father on her birthday. Her reason for that failure was that the father was supposed to come to the mother’s house in the morning to see the child. The father suggested that the mother had told him he was not welcome at her home. She denied that suggestion but it is more likely that she told him he was unwelcome than that she invited him to attend for the child’s birthday.
The father tendered the text messages that passed between the parties between 22 June 2011 and 26 August 2013. Between 10 May and the end of 2012, the messages, with a few exceptions, indicate appropriate communication, although the level of hostility between the parties is palpable. Nothing in the text messages explains the mother’s behaviour in removing the child from H School at the beginning of the first term of 2013.
On 24 January 2013, the mother made an application to enrol the child and Y at G School In cross-examination, the mother asserted that she discussed the application for enrolment with the father, before it was made. I do not accept that evidence. She would not speak to him on the telephone or face to face and there was no text message. Ultimately, she conceded that she first informed him of the enrolment at 7.00 am on the morning the child was to start school at G School.
The mother was unable to explain why, after making the application on 24 January 2013, she did not inform the father.
The parties were in Court on 29 January 2013. On the same day, the mother was contacted by G School and asked to attend an interview. She did not tell the father but attended the interview and was offered a place for the child and Y to start the following day.
At 7.00 am on the morning of Wednesday 30 January 2013, the mother telephoned the father and told him that the child would not be attending H School any more, that she was enrolled at a school on the Central Coast and that they (the mother, Y and the child) would be moving.
At 7.38 am on 20 January 2013, the father sent a text to the mother asking for the name of the school at which the child was to be enrolled.
The mother in her oral evidence said that she arranged for the school to forward copies of reports and notices to the father. That was not true. The child’s enrolment application was in evidence. In the mother’s handwriting, the front page is inscribed: “Private Application Details not to be disclosed discussed with father without permission please.” On the application form, the mother gave the father’s name but none of his contact details including his address nor phone numbers.
In answer to the question about parenting orders which might be relevant, the mother wrote: “Current Family Law Proceedings on foot”. She did not provide a copy of the orders of 12 July 2010 or 18 May 2012. She did not include the fact that the parties had joint parental responsibility or the fact that she was restrained by injunction from moving the child’s residence outside the Sydney Metropolitan Area. She did not inform the school that she was required by the orders to request that any school which the child attended to forward copies of reports and notices to the father.
For the next five days, the child attended G School. In order to be at school by 8.30 am, the mother, the child and Y left home at about 5.00 am, arriving in the Central Coast at about 7.30 am. The mother said she did not wake the child but took the child out of bed and put her in the car in her pyjamas. The child changed into her school uniform in the car. They had breakfast before the child was delivered to school.
In the evenings, they left the Central Coast at about 5.00 pm after an early dinner and arrived home at about 7.00 pm unless there were traffic problems. The mother said, variously, that the child would fall asleep in the car and the mother would put her to bed when they arrived home or that she showered when she got home.
Asked to concede that the regime would have been exhausting for the child, the mother said that her tiredness was due to it being the first week of school. She would not concede that subjecting the child to a 14 hour day was in any way inappropriate. Rather, the mother sought to justify her actions saying that she knew the parties would have to negotiate a new parenting plan and that she thought the Court would be assisted if she took matters into her own hands. The mother said that she honestly believed that, in enrolling the child at G School, “we were moving forward”.
In the Family Report dated 28 October 2013 Ms M says: “…she does not seem to see her actions in January 2013 as misguided or not in [the child’s] interests.”
The mother was entirely unconcerned that by her actions she breached the orders made by the Court.
The father made an application to the Court seeking the child’s return and an order that that she live with him. On 8 February 2013, Federal Magistrate Monahan (as he then was) ordered that the child be re-enrolled at H School, that the parties be restrained from changing the child’s school and that the child spend time with her parents in accordance with the orders of 18 May 2012 and 12 July 2010.
The child returned to H School on 11 February 2013. Between 11 February and 19 March 2013, the father sent 22 text messages to the mother and one to Y providing information about the child and asking when the mother would be telephoning or contacting the child. Not one message received a reply.
On 12 February 2013 the mother’s solicitors wrote to the father saying:
We are instructed that our client is unable to continue to comply with the Orders of 18 May 2012 with respect to the time [the child] is to spend with each of the parties during school term.
No reason was given for the mother’s inability to spend time with the child. It was proposed that, pending final determination of the proceedings, the child spend each weekend with her mother.
On 13 January 2013 the mother and Y moved into rented accommodation on the Central Coast. She did so knowing that the child would be attending H School and that the child’s time with her mother would be severely curtailed if the mother moved away from H. She left her home at H empty. She has refused to provide the husband with her address and his contact with her is by a post office box. Although she has continued to work in Sydney, she has not disclosed where she works.
On Wednesday 13 February 2013 the father sent an email to the mother’s solicitors noting, inter alia, that the child should have been in her mother’s care and making a counter proposal that the child spend time with him every second weekend from 3.00pm on Saturday. Negotiations continued. On 25 January 2013 the mother’s solicitors filed a Notice of Ceasing to Act.
The mother in her oral evidence said that she sent text messages to the father asking to see the child but that he texted in reply that there was no agreement. That evidence does not accord with the text messages. Between 11 February and 19 March 2013 there was no message from the mother.
The parties were in Court for a Directions Hearing before a Registrar on 18 March 2013. On 19 March 2013 the mother sent a text message to the father saying that she would pick the child up from after school care and have her every weekend. The father responded with an offer of time for every second weekend, picking up from after school care on Fridays and returning the child to school on Monday morning, and half of the April school holidays. The mother did not respond.
On 20 March 2013 the father sent a text message saying “Please let me know what you are doing. I want everything in writing thanx”. The mother did not respond. He sent another text message at 6.38 am on 22 March 2013 saying: “[Ms Sykes]. Pls. What’s happening today. It’s not fair to [the child] to not know what’s going on”. The mother responded: “I will be picking [the child] up from school and returning her to school Monday as arranged. Thank you.”
There were further text messages on 22 March 2013 where the father asked for the mother’s address and the mother refused to provide it. A reading of the entire correspondence on 22 March 2013 suggests that the father was trying to make arrangements for the child to see her mother and the mother was intent on scoring points.
The parents reached an agreement that the father would deliver thechild to Central Railway Station on the Friday afternoon where she was to be collected by her mother and returned her to school on Monday morning by the mother.
The mother resumed seeing the child on 22 March 2013 having not seen her for a little over six weeks. There is no explanation from the mother for her failure to contact the child, to speak to her or spend time with her for that period. She was cross-examined by the father on that issue and her evidence was that he was sending text messages to a phone on which text messages could not be received. The father pointed out that she later responded to text messages sent to the same number as was clear from the bundles of text messages that were tendered.
Since 22 March 2013, the mother has spent time with the child, mostly on alternate weekends. The parents have agreed to exchange weekends on occasions. The father says that the mother has spoken to the child on the telephone two or three times each week and she appears to agree with that proposition, although she complains that her other calls are often not answered or cut off.
It is against this factual background that the best interests of the child fall to be considered.
DISCUSSION
Section 61DA(1) of the Act sets out the presumption that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. Pursuant to s 61DA(2), the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
In the circumstances of this case, where the father has been found guilty of assault of the mother and an ADVO was imposed for a period of two years, it is arguable that a finding of family violence is applicable and that the presumption of equal shared parental responsibility has therefore been rebutted.
Section 61DA(4) provides:
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.
In the present matter, Ms M agreed that in order for equal shared parental responsibility to be exercised in a way that will be effective, it is necessary that the parents have effective communication; that they are able to share information between them; that they are able to listen and consider the views which each expresses; and that they each have a level of trust of the other. It was Ms M’s evidence that none of those factors is evident here.
I accept the submission of Counsel for the ICL that these parents have engaged in parallel parenting, which is most notable in the actions of each of them in enrolling the child at school in 2012. On that occasion, the father was at least prepared to discuss with the mother the reasons for his choice of enrolment whereas the mother was not prepared to engage in any consideration of his views.
Similarly, the mother’s actions in enrolling the child at G School, without any notice to the father until the first morning when the child attended at school, is evidence of her inability (or her refusal) to communicate with the father about this most significant aspect of the child’s welfare and her complete refusal to take into account his views in relation to such a significant decision.
In those circumstances I am satisfied that, whichever parent the child lives with, that parent should have sole parental responsibility for significant long term decisions. This finding accords with the recommendation of Ms M.
Having determined that equal shared parental responsibility is not appropriate for the child, I am not required to consider whether or not the child should have equal or substantial and significant time with each of her parents.
The Court is required, as a primary consideration under s 60CC(2) of the Act, to consider the benefit to the child of having a meaningful relationship with both of her parents. That is, a relationship which is important, significant and valuable to the child. The task here is to determine what orders can ensure that the child maintains such a relationship with both of her parents. There is no doubt that she currently has a meaningful relationship with both of her parents. Each loves and cares for her.
I am also required to consider as a primary consideration, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. I propose to consider those matters in the context of the considerations set out in s 60CC(3) of the Act.
The only objective evidence in relation to the child’s views is that which is contained in the Family Report of 28 October 2013. The child was interviewed by Ms M on 3 October 2013. She was significantly distressed during the interview. The child told Ms M: “I want to live with mummy”. The report notes that the child appeared very distressed and seemed inconsolable. The child then left the Court with her father for a short time. When the father returned with the child, he told Ms M that the child had said to him: “I told the lady that I wanted to live with Mummy”.
Ms M was asked what weight should be given to the child’s indication of her wishes having regard to her presentation at the time of the interviews. It was Ms M’s view that the child was in such a distressed state when she made those comments, that it was difficult to say whether those were her true wishes and whether she knew what she meant by what she said. It was the evidence of Ms M that any reliance upon the child’s statement as an expression of her true wishes needed to be tempered by the distress that the child was observed to be experiencing at the time.
Ms M was told that the mother had given evidence that the child had recently said to her (the mother) that she had told the lady (meaning Ms M) that she wanted to live with the mother. Ms M said that the child would be extremely aware that her mother wants her to live with her and that she is a child caught between two parents, so her wishes may be a reflection of what she feels her mother would like.
Ms M observed the child’s relationship with each of her parents and with her half-sister, Y, in the course of the interviews for the preparation of the Family Report.
In relation to the mother and Y, the Family Report records that the child was clearly happy to see them and, when she saw them in the waiting room, she ran to them and embraced them. The Family Report records that when the child was observed with her mother and Y, both formally and informally, she appeared very relaxed and very keen to be with them. The mother and Y were very focused on the child and her wishes during both the formal and informal observations and, when there was any suggestion that she be separated from her mother, unless she was reassured that her sister would be with her, the child became extremely distressed. The child’s distress at those times was such that it was almost impossible to communicate with her.
When the child was observed formally with her father she appeared to be very comfortable with him. She and her father chatted while they played and the father interacted with the child in a child focused manner. The Family Report observes that, at the commencement of the interview process, although the child looked somewhat distressed when her father left the childcare room, she was able to separate from him without any apparent significant distress. When the child left the Court with her mother and sister (as she was going to spend the weekend with them) she seemed happy to leave with them and was able to separate easily from her father and hugged him goodbye.
In the course of the interview sessions, when Ms M attempted to have a short interview with the child, the child said that she wanted her mother. She appeared very distressed and seemed inconsolable. Ms M suggested to the child that she be taken to her father and the child seemed comfortable with this. Ms M records:
When [the child] saw her father, she threw her arms around him and snuggled into him while he reassured her that everything would be alright. [The child] seemed to settle very quickly when comforted by her father. She and her father then left the Court for a short time.
[The child] returned to the court with her father and seemed reasonably relaxed. She then went to lunch with her mother. After she returned from lunch she was very unwilling to leave her mother to go to the childcare. She became increasingly distressed and her mother was unable to help her settle. Her level of distress was very high and, given this, it was decided not to attempt to interview her again or for her to be in childcare without either her sister, mother or father.
When asked what conclusions could be drawn from the differing ability of the parents to settle the child, whilst prefacing her remarks with the fact that she had not completed a thorough attachment assessment, Ms M said that the child seemed more able to be comforted by her father than she was by her mother. Ms M said that when observed at Court for the report, the child presented as an extremely insecure child whose relationship with her mother seemed to be characterised by significant anxiety.
Ms M said in her oral evidence that for a child of the child’s age, her degree of stress was much more than what one would expect from a younger child who would need to be in the presence of her mother to feel secure. She said that the child, at her age, should be able, if she has a healthy attachment to her parents, to separate from a parent and still have a sense of who that person is as a stable person in her life.
In her oral evidence, Ms M said that the relationship with the child’s mother was associated with a fair bit of anxiety so that her attachment to her father probably has less insecurity than her attachment to her mother.
When asked by the father whether the quality of the child’s attachment to her mother could be attributed to the occasions upon which the mother had left the child, the Family Consultant said that attachment difficulties can come from a range of factors, such as quality of care, but that absences at a crucial stage could cause children to feel very insecure about their relationship to a parent.
The child was sufficiently comfortable with, and confident of, her father to tell him that she had told Ms M that she wanted to live with her mother. Ms M said:
When [the child] was extremely distressed at the Court, she was receptive to being comforted by her father even though she had asked for her mother. She seemed to be reassured by the physical comfort her father gave her and the way that he spoke to her.
Ms M also said:
[The child’s] apparent readiness to tell her father [that she wanted to live with her mother] seems to indicate that she feels safe with her father and is able to share her conflicted feelings with him.
I accept the evidence of Ms M that it is likely that the child’s most secure attachment is to her father.
There is no doubt that the child has a strong, loving relationship with her half-sister, Y. However, this relationship has to be weighed against the evidence of Ms M that, in the ordinary course of events, Y will move to adult concerns and not be so frequently available to the child. Even at the present time, Y has a weekend job and goes out with her friends on Saturday night when the child is with her mother.
The evidence suggests that, to the extent that the father has failed to spend time with the child, this has been because the mother did not facilitate his doing so.
There have been two significant occasions when the mother, who on each occasion was the child’s primary carer, has failed to parent the child. The first occasion was in 2010 when, between 4 September and 22 October, the mother left the child with the father. For some of that time she travelled overseas on holiday but she gives no explanation for her being absent from the child’s life for the whole period, for leaving the child with her father after Father’s Day on 5 September (when she was not leaving the country until 19 September) and for failing to collect the child when she returned on 13 October 2010. The period of the mother’s absence on that occasion was a significant time for a little girl to be without her primary carer.
The mother, inexplicably, again failed to spend time with the child after the child returned to H School when, despite what I am satisfied were the best efforts of the father, she chose not to avail herself of the time which she was offered with the child.
In the Family Report dated 28 October 2013, Ms M reports:
[The mother] did, however, acknowledge that she had not attempted to have contact with [the child] for the first five or six weeks that she had been in her father’s care from the beginning of February. She said that her solicitor had advised her not to make contact with [the child] for this period of time. [The mother] said that [the father] had done things such as take [the child] to her [the mother’s] home when he knew she was not there so that [the child] would come to believe that her mother had abandoned her.
The mother denied that she had made those statements to Ms M.
In cross-examination, Counsel for the ICL asked Ms M about that conversation. Ms M confirmed that the conversation had occurred in the manner in which it was recorded and said that she recalled it and was quite surprised by what the mother said.
Since the child was returned to H School, the mother has failed to pay child support.
If the child were to live with her mother and half-sister on the Central Coast, then she would be deprived of the father, to whom I am satisfied she has the stronger attachment, but would have the benefit of a day to day relationship with her mother and her half-sister.
If the child were to live primarily with her father, she would be able to see her mother and half-sister each alternate weekend. I accept the evidence of Ms M that this would be sufficient for the child to maintain her relationship with Y.
In relation to the time that the child should spend with her mother in the event that she lives primarily with her father, Ms M gave evidence that there needs to be a balance between the child maintaining a relationship with her mother and having the sense of security and stability that she needs in her father’s care. Ms M said, and I accept, that given the practicalities of the mother’s living circumstances and the distance between the parties’ residences, fortnightly weekends with the mother should be enough for the child to maintain her relationship with the mother.
Ms M said that, if the child is able to become more secure, then her relationship with her mother should improve. Ms M characterised the relationship between the child and her mother as “associated with a lot of anxiety”. Ms M expressed the view that the child has more than the usual need for stability because of the unstable history of her shared care and the conflict between her parents.
Ms M characterised the child’s primary need at the present time to be for a secure and stable home in which she can grow and develop. She expressed the view that, for the child, alternate weekends would probably be as much as she could cope with and would give the child the opportunity to become more secure in her primary care environment.
Because of the mother’s decision to live on the Central Coast when the child and her father are living in the southern suburbs of Sydney, it will be inevitable that the child will have to travel to see either of her parents. Because the mother works in Sydney (although she refuses to tell either the father or the Court where she works) she can collect the child from school and return her to school. Ms M strongly recommended that changeovers for the child take place in a neutral environment and the school would be appropriate.
Ms M suggested that, if necessary, changeovers could take place at a contact centre, such being the level of conflict she observed between the parties, but that is not a reasonably practical solution. When it is impossible for the parties to effect changeovers to and from school it should happen at a neutral location. The father suggested that McDonalds at T is approximately halfway between the child’s two residences and that, failing agreement, it will be the changeover venue for holiday changeovers.
The matter of greatest concern in relation to the child is the capacity of her parents to provide for her needs, most importantly her emotional needs.
Both parents agree that in 2012, the child was having difficulties at school and that her reading, in particular, was below the standard which she should have achieved. They both agree that in 2013, at H School, the child was enrolled in a special reading program. The child’s reading has significantly improved and both of the parents expressed their pleasure at her achievement. Some credit is to be given to the father who has had the care of the child during school days and who has worked with her at home on her reading, but I accept the mother’s submission that the majority of the credit should be given to the child’s teachers.
The area of greatest concern for the child is the willingness and ability of each of her parents to foster and promote her relationship with the other parent. The Court has the advantage of memoranda and family reports commencing on 4 January 2010 and finishing on 28 October 2013. It is a further advantage that the Family Report dated 2 July 2010 and the Family Report dated 28 October 2013 were both written by Ms M and, therefore, the Court has the advantage of a longitudinal view of this family.
In the Memorandum dated 4 January 2010, Ms S identified problems with communication between the parents but does not suggest that there was, at that time, an inappropriate level of conflict between them.
In the Family Report released on 2 July 2010, Ms M reported that, during the short time she spent with the parents together, there was a great deal of tension and hostility between them and that they almost immediately got into a disagreement about which of them was the applicant and which the respondent. That dispute appears to be continuing, as the mother raised, in her submissions, her disquiet that the father had been the applicant for the purpose of the hearing before me.
Ms M said that she found the father, in particular, very hard to communicate with during the initial session and observed that he seemed to take exception to each question that she asked, whether it was directed to him or to the mother.
When interviewed separately, the father presented differently and seemed much less hostile. He identified difficulties in communication and specifically told Ms M that the mother refused to communicate with him. The father told Ms M that the mother was “a control freak” and “would not compromise”. It was his view that the mother had influenced Y against him.
The mother, on the other hand, was extremely critical of the father. She told Ms M that Y thinks the father is “two faced”; that he “contributed nothing” to the children after separation; that he had had the electricity disconnected at her home; that he is working more hours than he says he is in order to minimise the amount of child support he is paying; and that his father and step-brother (whom she said has a criminal conviction) also live in the house, although the father says his step-brother does not. The mother told Ms M that she had employed the services of a private investigator to ascertain the father’s work hours and who is living in his home.
The mother was unable to comment on the child’s current relationship with her father other than to say that the father “loves her in his own way”. She told Ms M that since the child has been spending time with her father again she is no longer toilet trained and suggested that this might be related to the child feeling stressed when she is with her father.
She said that the father was happy to do the fun things with the child rather than involve himself in the more serious aspects of being a parent, such as homework. She said that the father wants to see the child because “he is lonely” and that she was worried that the father will “go back to drugs”. The mother said she was particularly fearful of this because the father’s step-brother was a convicted drug dealer.
The mother told Ms M that she was worried about the father’s “values” and the possible “negative effects” that they may have on the child. She said that “he puts his family needs above the child’s needs”, that according to the father “his family are always right”, and that “he always chooses them”. The mother said that the father “on his own is ok” but that she worries about his family and the friends that he has.
The mother said that she tries to communicate with the father but that he refuses to make any compromises and accuses her of breaking orders when she tries to alter arrangements to accommodate the children’s needs. The mother said that the father wants any changes in arrangements to be put in writing and she commented that “he does not try to talk to me”.
Y, who at the time of the report was 14 years old, told Ms M that she did not like the father coming to her netball games and did not want to spend any time with him. She told Ms M about the father becoming angry and that she was worried that he might do that again.
Y said that she used to trust the father but does not trust him anymore. Y expressed the concern to Ms M that the father “could just take her [[the child]] and run away with her” and added “he is capable of that”.
The mother told Ms M that Y has never really missed having a relationship with her own father. Y saw her father about three times a year until she was three years old. The mother said that the paternal grandmother was vindictive because she had sought and obtained orders that Y spend one weekend a month with her. The mother acknowledged, however, that Y is spending little time with her grandmother.
In relation to both of the parents, Ms M reported:
[The mother] is having considerable difficulty in accepting that both [Y] and [the child] would benefit from having a significant and meaningful relationship with [the father] and [the father] is having difficulty understanding how [the child’s] developmental and emotional needs would make it extremely difficult for her if she were to be removed from her mother’s care and placed in his care given that she has been cared for by her mother since November 2008. [The father] may also not realise the impact of his rather combative communication style on [the mother] and their co-parenting relationship.
In relation to the father, Ms M reported that his attitude seems to be more focused on his battle with the mother than in a consideration or understanding of what is in the child’s best interests.
Ms M expressed the view that the mother has clearly not encouraged Y to have a close relationship with her father or her paternal grandmother and that it seems likely that the mother will have great difficulty in facilitating the child’s relationship with her father.
Ms M expressed the view, which I accept, that both of the parents seemed totally absorbed in their inter-parental battle.
The family were next seen by a Family Consultant on 28 January 2011 by which time the child was in an approximately equal time arrangement, spending time with her father from Monday to Thursday. The Family Consultant, Mr L, recommended the preparation of a full report.
That report became available on 1 May 2012.
The father is reported to have criticised the mother for keeping the child “on the dummy” even though she was then five and a half years old. He noted that the child did not have a dummy when in his care. He reported that the child did not have tantrums and oppositional behaviours when in his care and observed that, when she is with him, she has “half a minute tantrums” and then apologises. The father told Mr L that the mother had been “trying to ‘build a sexual assault case’ against him” and alleged that the mother was prone to “strange” and aggressive behaviour. The father told Mr L that the child “definitely loves her mother”.
The mother told Mr L that her parents separated when she was two years old and “never spoke to each other after that”. The mother told Mr L that the father was creating financial difficulties for her because “he wants me to lose the house so that he gets custody of [the child]”.
She was of the view that the father undermined her parenting of the child by giving her freedoms that are not permitted in the mother’s household, withholding information about school events and activities, sabotaging her involvement with the child’s preschool, school and extra-curricular activities and generally spoiling the child.
She reported that the child says such things as “I’ll get my daddy to buy it for me” and “[d]addy doesn’t make me do that”. The mother blamed the father and his undermining of her parenting for the child having extreme tantrums and becoming increasingly defiant and aggressive.
The mother told Mr L that in conversations she has overheard between the child and Y, when the child says such things as “I’ll get my Daddy to buy it”, Y responds “[y]our Daddy didn’t do that for me”. The mother acknowledged that, in the context of exchanges between Y and the child, Y says negative things about the father. Although the mother denied talking to the child about her father in negative or derogatory terms, she accepted that the child may have inadvertently overheard telephone calls in which such things may have been said.
Y told Mr L that “once [the father] left the family he didn’t talk to me or [the child]” and that “[he] gets rewarded for kidnapping [[the child]].” Y also said that “He took her on Fathers (sic) Day weekend” and that “at one point in his life he was taking drugs”. Further, Y said that the father “lies about everything and he is trying to destroy everything in my life” and that he “makes mum pay for everything and she couldn’t afford the [school] fees”.
Mr L expressed the view that Y’s comments were uniformly negative and resentful. Worryingly, Y described the child as increasingly secretive and, because of this, Y wonders “what he is doing to her that she doesn’t want to talk about”. The Family Consultant suggested to Y that this sounded as though she might be referring to something of a sexual nature and Y agreed that that is one of her concerns.
Overall, the mother’s and Y’s views about the father were more negative in their second interviews than in their first interview.
The child told Mr L “I love my mummy and I love my daddy” and “mummy and daddy don’t like each other very much”. When drawing a picture of her family, the child said to Mr L that “mummy wouldn’t like daddy in the house”, “daddy wouldn’t like mummy in the house” and “[[Y]] wouldn’t like daddy in the house”.
Mr L referred to the parents’ chronically conflicted relationship and expressed the view that, having regard to her attachment history, including a potentially traumatic separation from her mother in 2010, the child appears to be displaying signs of insecurity.
The parents again were interviewed by a Family Consultant, Ms M, in October 2013 for the preparation of the report dated 28 October 2013. The father told Ms M that he and the mother are unable to communicate and said “things are so bad between us that I was not even able to say happy birthday to [the child] when she was with her mother on her birthday”.
The father was critical of the mother in relation to the ADVO proceedings instituted by Y and said that the mother puts things in Y’s head and had probably suggested to Y that he was stalking her. The father told Ms M that the child knows “mummy and daddy don’t get on” and added that she knows that her mother “hates me” and said that he tells the child that he does not hate her mother.
In relation to the mother, Ms M reports that the mother spent much of the interview speaking about events which had taken place prior to the previous report and noted that at times it was hard to follow what she was saying. The mother is reported to have spoken at length about financial disputes between her and the father. That observation is consistent with the mother’s affidavit material prepared for the hearing before me, where she dwells on past financial matters at length.
The mother told Ms M that the father had “stalked” both her and Y.
She said that the child gets into trouble for telling her father things about what happens when she is with her mother and that the father sends the child to her room when the child “tells him things about me”.
The mother said that the father thinks he is doing a good job with the child and acknowledged that he seemed to be devoting a lot of time to her, but said that she did not think he was doing it for the best of intentions but rather “for revenge, to hurt me”.
The mother said that the father is “needy” and that he “needs [the child]”. She commented that it “is not about him”.
The mother told Ms M that, after discussions with a counsellor, she has realised that the father has a personality disorder and that, for him, “it is all about power and control”.
The mother said that the father is responsible for her losing her job earlier this year as, according to her, he had been ringing her up at work. She said that the father had a vendetta against her and expressed the concern that if the child were to continue to live with her father “she will have mental health problems”.
The Family Report records:
[The mother] said that she has not had contact with her own father since she was two years old. She said that she thinks, “it was better back then” when children did not have to cope with “going backwards and forwards between two parents”. She commented, “I had a home and I knew who I was”. She added “nowadays children get caught in the middle”. She said that it has never been a problem for her that she did not have a father. She does not think that [Y] has any issues with not having had a relationship with her father.
Y, then aged 17, told Ms M that the child “is different now that she lives with her father”. Ms M reports:
[Y] said that she thinks that [the child] could still see her father “if she wants to”. She, however, said that [the father] “lies a lot” and that when he comes to Court he is “good and perfect” but that he is not really like this. She said that he will do “anything to make our lives miserable” and he uses her and [the child] to hurt their mother and has broken the AVOs which have been in place. She said that, although [the father] knows that she does not want to have anything to do with him, he had followed her to her home and told her that he wanted clothes for [the child]. [Y] said that on that occasion [the father] had told her that she was “horrible” and that she would “never get anywhere in life”. She said this incident had led her to apply for an AVO against [the father].
[Y] commented, “[The child] loves her dad but one day she [[the child]] will realise what he is really like”. She said [the father] “is nothing like the person he is in Court”. [Y] described her mother as “an amazing person who does everything right”.
The Family Report records the view of Ms M in the following way:
Although [the mother] made frequent comments about how she has facilitated [the child’s] relationship with her father since she and [the father] separated, she expressed a preference for parenting arrangements in which a child of separated parents has one parent and one home and not move between their parents’ homes. Given her expressed view of separated parents co-parenting and her past actions, it is extremely unlikely that [the mother] has supported [the child’s] relationship with her father.
[The mother] and [Y] expressed an almost totally negative view of [the father]. [The mother] seems to interpret any of [the father’s] actions which could be seen as positive, in a very negative way. For example while she acknowledges that he seems to be putting a lot of time and effort into caring for [the child], she said that [he] is doing this for the wrong reason. She also believes that any positive behaviour he might exhibit at Court is “an act”. It is highly likely that if [the child] were to live with her mother, she would be exposed to ongoing negativity about her father which would damage their relationship.
In contrast, Ms M observes in relation to the father that “[he] said nothing that indicated he would not be supportive of [the child’s] relationship with her mother if [the child] were to continue to live with primarily with him”.
A reading of all of the reports and memoranda suggests that over time the father’s hostility towards the mother has abated. I accept the evidence of Ms M that the father would be supportive of the child’s relationship with the mother.
In contrast, over time, the mother’s hostility has, if anything, increased. I accept that it is highly unlikely that she would support the child’s relationship with her father in the event that the child lived with her.
Although Ms M suggested that Y, who is now completing Year 11, would probably, as she is older, move away from the child and that their very close relationship is likely to undergo a change, given that Y’s circumstances will change, I find that it is likely that in the mother’s household, the child will be subjected to Y’s negative view of the father and that she will not receive any support from Y in her relationship with her father.
The mother’s actions in enrolling the child at G School should also be considered. The mother was prepared to subject the child to an exhausting regime, in her first week of school, of 14 hour days. She did not concede that she was in any way at fault in having taken that step. The mother seemed incapable of looking at the consequences of her decision to enrol the child at G School from the child’s point of view and was driven entirely by her own wishes.
In relation to the issue of family violence, there was one incident in 2008 shortly after the parties separated.
In the Family Report dated 2 July 2010, Ms M said, and I accept, in relation to this incident:
However, as both [the father] and [the mother] acknowledge it was a one off event and [the father] has never acted in a threatening manner towards either of the children or her before. [The mother] could have viewed [the father’s] behaviour in the light of their post separation conflict and chosen to minimise the trauma that [Y] may have experienced as a result of being exposed to [the father’s] behaviour. It is likely that she has done the opposite and has used this event to undermine [Y’s] relationship with [the father].
I do not consider that an incident of pushing, in 2008, should be given such significant weight as to outweigh the extreme concerns which I have expressed in relation to the mother’s ability to foster the child’s relationship with her father.
Having regard to all of the matters which I have considered, I give greatest weight to the aspect of the ability of each parent to foster and facilitate the child’s relationship with the other parent.
The child should live with her father and spend alternate weekends and half of her school holidays with her mother. The father will have sole parental responsibility for the child with respect to significant long term decisions.
I accept the mother’s evidence that, whatever arrangements are made for the child, they should be precise and not allow for differences of interpretation. In relation to the Christmas period, because of the distances between the parents’ homes, changeover will take place on the morning of 26 December so that each parent will have the child in his or care for the whole Christmas period each alternate year.
Given the distances of travel between the parents’ residences, it is not practicable to make specific orders for birthdays and special events that might fall on school days. Insofar as those events fall on weekends, the event will be spent with the parent who would usually care for the child pursuant to the Orders set out above.
I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 27 November 2013.
Associate:
Date: 27 November 2013
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Family Law
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