TADIC and CUPIC
[2013] FCWA 43
•22 APRIL 2013
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: TADIC and CUPIC [2013] FCWA 43
CORAM: WALTERS J
HEARD: 9-16 APRIL 2013
DELIVERED : 22 APRIL 2013
FILE NO/S: PTW 2123 of 2011
BETWEEN: BORIS TADIC
Applicant
AND
IVANA CUPIC
Respondent
Catchwords:
FAMILY LAW – PARENTING – family violence – Where mother subjected to denigration and abuse by father both prior to and after separation –Where father spends supervised time with the parties' child – Where father seeks to dispense with the requirement for supervision – Where single expert witness recommended that supervision should continue until father has been psychiatrically assessed – Where father seeks equal shared parental responsibility and mother seeks that she be granted sole parental responsibility – Where parties are wholly unable to negotiate anything – Where father has strong views, sense of entitlement and limited insight – Where father is preoccupied with his negative views of mother and her family – Mother granted sole parental responsibility – Orders made for supervision to continue until father has been psychiatrically assessed and has completed relevant parenting programs
Legislation:
Family Law Act 1975 (Cth), s 4, s 4AB, s 60B, s 60CA, s 60CC, s 61DA, s 64B, s 65D, s 65DAA, s 65DAC, s 65DAE,
Evidence Act 1995 (Cth), s 140
Category: Not Reportable
Representation:
Counsel:
Applicant: Self Represented Litigant
Respondent: Mr F Castiglione QC
Solicitors:
Applicant:
Respondent: G G Legal
Case(s) referred to in judgment(s):
A v A (1998) 146 FLR 188
B & B (1993) FLC 92-357
Chappell& Chappell (2008) FLC 93-382
Collu & Rinaldo [2010] FamCAFC 53
Goode & Goode (2006) FLC 93-286
Hungerford & Tank [2007] FamCA 637
Jets & Maker(2007) FLC 93-344
Johnson and Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
M & S (2007) FLC 93-313
Marsden & Winch (No 3) [2007] FamCA 1364
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
McLay & McLay (1996) FLC 92-667
Mills & Watson (2008) 39 Fam LR 52
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Pender & Haywood [2007] FamCA 1526
Re F – Litigants in Person Guidelines (2001) FLC 93-072
Re L, V, M & H (Children) [2000] 2 WLR 339
Re M (Contact Violent Parent) (1999) 2 FLR (UK) 321
Richards & Brown (2011) FamCA 662
Saxena & Saxena (2006) FLC 93-268
Sealey & Archer [2008] FamCAFC 142
Taylor & Barker (2007) FLC 93-345
W & W (2005) FLC 93-235
Preamble
1This case is about the parenting arrangements for [Senka Tadic], who is now four years of age. [Senka] was born in 2009. She has no siblings, and has lived with her mother since her parents separated in late 2009.
2The primary issues in the case were these:
a)Should there be an order for equal shared parental responsibility, or should Senka's mother have sole parental responsibility for her?
b)Should Senka live with her mother, or should she live partly with her mother and partly with her father?
c)If Senka is to remain living primarily with her mother, then what time should she spend with her father?
d)Should the time that Senka's father spends with her be supervised? Put another way, is there an unacceptable risk of harm to Senka if the time that her father spends with her is unsupervised?
3Senka's father represented himself at trial. Although English is not his first language, his communication skills were excellent (even if he was somewhat long‑winded). He is clearly an intelligent man, and his vocabulary, comprehension and oral expression were all well above average. He had clearly prepared for the trial carefully, and he participated in the process fully and comfortably. He cross-examined witnesses confidently. His attention to detail was striking, although occasionally misguided. I am satisfied that he had every opportunity to put his case and that he fully understood all aspects of the proceedings.
4Senka's mother was represented by Mr Castiglione QC.
5The trial occupied close to six days. Given that Senka's father represented himself, the Court had ample opportunity to observe and assess his demeanour, attitude to his former wife (and others) and style of communication. These observations led the Court to comment, during his closing address, that Senka's father was his own worst enemy. Significant features of his former wife's description of him in her evidence were starkly apparent; so, for that matter, were significant features of the single expert witness's description of and conclusions about him. In the broadest of broad terms, his presentation was troubling, and served to corroborate certain of his former wife's complaints about him. I shall say more about his evidence and demeanour later in these Reasons.
6The evidence contained in the affidavits and presented during the trial led irresistibly to the conclusion that Senka's parents are wholly unable to communicate effectively with each other. Although Senka's father tried hard to persuade the Court that the communication difficulties were largely (or at least partly) caused by his former wife's attitude to him (and, it seems, his family), the only reasonable conclusion to be drawn from the evidence as a whole is that he is primarily – if not almost exclusively – responsible for those difficulties.
7At the conclusion of closing addresses, I made orders to the effect that Senka is to live with her mother, and that her mother is to have sole parental responsibility for her. The orders require Senka's parents to communicate with each other about major long‑term issues that may arise and to endeavour to reach agreement as to how those issues should be dealt with, but Senka's mother will have the right to make the final decision if no agreement is reached.
8I am satisfied that the orders made at the end of the trial are in Senka's best interests.
9I propose to make further orders when these Reasons are published.
The husband was self represented
10Given that the husband was self-represented, I was very conscious of the obligation upon the Court to provide a fair trial – for both parties. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re F – Litigants in Person Guidelines (2001) FLC 93-072.[1] I applied those guidelines during the course of the proceedings, and am comfortable that the trial was fair. In summary:
e)Procedural fairness was afforded to both parties.
f)The “mechanics” of the trial, and the right of the husband to cross-examine witnesses, were explained to him.
g)Other relevant procedures were explained to the husband as they arose.
h)I explained to the husband that he had the right to object to inadmissible evidence, and explained to him – in very broad terms – the types of evidence that might be considered inadmissible.
i)Where appropriate, I attempted to clarify the substance of the husband’s submissions.
j)Where appropriate, I took steps as authorised by the Full Court in Guideline #9 in paragraph 253 of the decision in Re: F – Litigants in Person Guidelines.
[1] See, in particular, paragraphs 209-253 of the decision.
11In Saxena & Saxena (2006) FLC 93-268, Coleman J emphasised that the type of guidelines set out in the previous paragraph “were no more than the name implies” and that they “derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on”. His Honour added that the Court must be concerned with “the spirit rather than the strict letter of the guidelines”.
12In the present case, and as I have outlined above, the husband's English was very good, and he participated in the trial process fully, comfortably and confidently. I have no doubt that he fully understood exactly "what was going on" at all times. I also have no doubt that he fully understood the contents of all documents relied upon during the course of the proceedings. As senior counsel for the wife said during the course of his closing address, the husband participated in the trial "with verve".
Introduction and background
13In these Reasons, and unless otherwise indicated:
k)all statements of fact comprise findings of fact;
l)although they are now divorced, I have referred to the parties as the husband and the wife (and I mean them no disrespect by doing so) – because it is less confusing than referring to them as the applicant and the respondent; and
m)I have not drawn a distinction between proceedings or events in the Magistrates Court, 150 Terrace Road, Perth and proceedings or events in the Family Court of Western Australia (given that the two Courts operate "in tandem" and exercise similar jurisdiction).
14Although the law now refers to a child “spending time” with a person with whom the child does not live, I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
Significant dates
15The husband was born (in Croatia) in 1977. He arrived in Australia in 2007. He is employed as [occupation omitted].
16The wife was born (in Australia) in 1984. She is a [occupation omitted] solicitor.
17The parties began their relationship in early 2008. They commenced cohabitation when they married, [later in] 2008.
18Senka was born in [early] 2009.
19The parties separated in [late] 2009, but reconciled towards the end of January 2010. They separated again in March 2010, and have lived separately since then.
20According to the husband, the parties separated in July 2009 on a final basis. I prefer the wife's evidence in relation to the date of separation, however, and note that the parties continued to live together (even if the husband felt that the wife was spending far too much time at her parents' home) until shortly before Christmas 2009.
21A number of incidents featured heavily in the evidence of both parties. I shall refer to the incidents as –
a)the petrol station incident;
b)the Christmas tree incident;
c)the painting barbecue incident; and
d)the March 2011 incident.
The petrol station incident
22When the wife was approximately six months pregnant, the husband left her at a petrol station in the early evening and drove off. The couple had been arguing. According to the husband, the wife told him to "piss off" – so he did. The wife started to walk home, became fearful and rang her mother to collect her. The husband conceded that he did not return to check on her, or contact her at her parents' home for that purpose.
23During his closing address, the husband conceded that he had behaved inappropriately in the petrol station incident. At earlier stages of the trial, however, he seemed to have considerable difficulty accepting that someone might consider such behaviour to be immature and irresponsible.
The Christmas tree incident
24Shortly prior to Christmas 2009, the wife purchased and decorated an artificial Christmas tree. The husband was incensed that the wife had purchased an artificial tree and could not accept that anything less than a traditional, "real" tree should be set up in the parties' home. The husband removed the tree from the house and hid it from the wife, misleading her as to its whereabouts. The wife was extremely upset by the husband's behaviour and left the matrimonial home – taking Senka with her – to go to her parents' home. The Christmas tree incident was, in effect, the trigger for the parties' separation.
25The evidence reveals that the husband's behaviour on that occasion was irrational, petulant and immature. It also shows a disturbing inability or reluctance on the husband's part to compromise.
The painting barbecue incident
26The wife's mother purchased a painting for Senka, or for the parties to celebrate Senka's birth. The painting cost approximately $5000. The husband clearly resented the gift, which was placed in the front room of the parties' home. On the day after the Christmas tree incident (according to the husband), the husband took the painting and burned it on a barbecue, in the presence of his friends.
27As with the petrol station incident and the Christmas tree incident, the evidence reveals that the husband's behaviour was irrational, petulant and immature. The husband admitted that he should not have burnt the painting, but was unable to satisfactorily explain why he did so – although he spoke of it being a "symbol" of "everything bad in our relationship" or, in effect, what he perceived was the domination of his life by the wife's family. Using the term in a strictly lay sense only, there is a disturbing element of paranoia in the husband's behaviour on this occasion. I note, though, that the tests administered by Dr Watts revealed "a sharp spike on the paranoia scale". This assessment is one of the reasons why Dr Watts has recommended that the husband be psychiatrically assessed.
The March 2011 incident
28On 12 March 2011, an incident occurred which caused the wife to apply for (and obtain) a violence restraining order. The incident is described in detail in the transcript comprising annexure JP2 to the wife's affidavit.
29Put shortly, the husband had wanted to spend time with Senka, but the wife (for reasons discussed elsewhere in this judgment) was unwilling to allow him to spend time with her alone. On this occasion, the husband decided that the wife should meet [Y]. The wife did not know [Y], but the husband was (and is) convinced that [Y] is her half brother. The husband misled the wife as to where he was taking her. When it became apparent that he was taking her to a different place, the wife wished to terminate the contact and leave with Senka. The husband was not prepared to allow her to leave the car. The wife said that the husband "ran three red lights to get to [Y]'s house and pushed and shoved her into the house". During cross-examination, the wife conceded that the husband did not push her into the house, and that she did not enter the house. She conceded that the husband moved her towards the house, but that she did not travel more than two or three metres from the car. In my opinion, however, nothing turns on the discrepancy. Having arrived at the house, the husband "tried to take a screaming and crying Senka out of the wife's arms". Both the wife and Senka were hysterical. Ms [Lulic] intervened, and the husband eventually released the wife. The husband admitted that he had held the wife against her will.
30The wife said, and I accept, that the March 2011 incident "has scarred her for life". She said that she had never before been in a situation where someone had taken her liberty.
31I accept the wife's evidence in relation to the March 2011 incident as being substantially truthful. Although she may have been in error in describing some relatively small details associated with the incident, her broader description of it was credible and persuasive. It was corroborated by Ms Lulic's evidence at the VRO hearing.
32The March 2011 incident was the most serious manifestation of the husband's preoccupation with his belief that the wife has half brothers and that she must (as far as he is concerned) meet them and allow them to become part of her and Senka's life. In spite of comments made by the husband to the contrary towards the end of the trial, it appears to be a matter of complete indifference to the husband that the wife does not wish to meet these people. The husband's behaviour during the March 11 incident and his attitude to the wife's reluctance to have a relationship with a half sibling that she does not acknowledge, let alone know, is, in my opinion, a serious form of controlling, coercive and intimidatory behaviour. It is, without doubt, a form of family violence within the meaning and contemplation of that term in the Family Law Act 1975 (Cth).
33At a hearing before Magistrate Vander Wal on 13 September 2012, the husband said (13 September 2012 transcript, page 8):
[The wife's] got two brothers and they know why I'm here in court. One of the reasons [is] because I said my daughter will know the family, she will know the truth, and I don't care who doesn't like the truth, who's got skeletons in the closet, [the wife] knows that. She knows she is losing the battle, she knows everything, she is intelligent.
34The husband also made it clear during the trial that it was his intention to bring Senka into contact with the wife's putative half siblings at a time of his choosing. After hearing Dr Watts' evidence, the husband eventually suggested that he might adopt a more moderate approach, allowing Senka to choose for herself – at an appropriate age – whether she wishes to have a relationship with these people. I am not persuaded that the husband will be willing to wait until Senka reaches the age of at least 13 or 14 before raising the subject of the wife's putative half siblings. The husband's preoccupation with the subject is intense, and bordering on an obsession. It needs to be borne in mind, as well, that the husband bears deep and long-standing resentment towards the wife's family. To use a colloquialism, I have no doubt that he believes that they should be taken down a peg. The existence of unacknowledged children of the wife's father provides the husband with an opportunity (in his eyes) to demonstrate that the wife's family are hypocritical, and anything but the "good" (to use a term that the husband employed frequently during the course of the trial) people that they profess to be.
35One of the most disturbing aspects of the husband's evidence in relation to the March 2011 incident was the husband's refusal to take responsibility for the impact of his actions on the wife and on Senka. He insisted that it was the wife who made Senka upset, and not his behaviour. He suggested that the wife was holding Senka too tightly and that Senka became hysterical because the wife became hysterical. He had the greatest difficulty recognising that he had caused the wife to become afraid and to behave in a hysterical manner. Further, he seemed to believe that she could reasonably have formed the view that she did not have to accompany him to the address to which she was taken, and that she could have left Senka with him (in spite of the entire history of the parties' relationship from separation to that point in time) and simply walked away. For the husband to make such a suggestion (as he did) is preposterous.
36I do not propose to reproduce passages from the transcript of the VRO hearing which took place on 29 June 2011. The transcript comprises annexure JP2 to the wife's trial affidavit. I accept the evidence of the wife and Ms Lulic as it appears in the transcript and as it relates to the events of 11 March 2011. I note that the husband "more or less" agreed with Ms Lulic's version of events (see page 35 of the transcript).
Initiation of proceedings
37The husband filed an application initiating proceedings on 21 April 2011. In it, he sought an order for equal shared parental responsibility and orders providing for Senka to live with each of the parties in a shared care arrangement. He also sought other orders that are not presently relevant.
38In his case information affidavit (filed with the application initiating proceedings), the husband deposed to having concerns about substance abuse which impacts on the parenting of Senka. He said:
39The mother has on a number of occasions used illicit drugs and alcohol to excess.
40The wife filed a response on 11 May 2011.
41On the first return date of the parties' competing applications, they were ordered to attend a case assessment conference with a family consultant. The conference took place on 27 May 2011.
42A number of issues or themes arose or were discussed at the conference. Thus:
a)the wife –
i)raised concerns regarding the husband's "erratic, irrational and aggressive behaviour" and the impact of such behaviour on her and Senka;
ii)made reference to the Christmas tree incident and the painting barbecue incident;
iii)said that, although the parties were "reasonably amicable" after the separation and the husband would spend time with Senka every day to begin with, he has not been consistent with seeing Senka and began to verbally abuse the wife during visits and not focus on Senka;
iv)asserted that the husband cannot control his anger, and that he had been "controlling, angry, verbally and physically abusive towards her" during the relationship – including in Senka's presence;
v)alleged that the husband had denigrated her (mainly in Croatian), including in Senka's presence;
vi)said that the husband is "focused on his rights rather than the child's needs";
vii)said that she had previously been in a relationship with a person who later became a member of a bikie gang (but that her relationship with him had ended before he joined the gang);
viii)referred to the March 2011 incident and confirmed the evidence that she gave about it when applying for the VRO; and
ix)was concerned that the husband might have mental health issues, given his "aggressive, irrational and rapidly changing behaviour"; and
b)the husband –
i)alleged that the wife's' parents interfere in the relationship between the husband and the wife, and encourage her to "shut him out" of Senka's life;
ii)gave his version of the March 2011 incident, "denying any force and alleging [the wife] commenced screaming outside 'her brother's house' and hit him in the face and shoulders while the child was in her arms"; and
iii)alleged that one of the wife's previous partners was a member of a bikie gang.
43On 23 June 2011, interim orders were made for the husband to have supervised contact with Senka. The contact was to be supervised by Relationships Australia and was to occur "each week for a period of up to 3 hours". Other, largely procedural, orders were also made. An injunction was granted restraining both parties from denigrating each other to Senka, or in her presence or hearing.
Trip to Sydney (August 2011)
44Orders were made on 18 August 2011 to the effect that Senka live with the wife and that the wife have permission to take her to Sydney for a family wedding on the weekend of 27 August 2011.
Appointment of single expert witness
45On 14 February 2012, it was ordered – by consent – that Dr Phil Watts, clinical psychologist, be appointed single expert witness to report on a wide range of matters relevant to Senka's best interests. Pursuant to paragraph 5 of the orders made on that day, "the costs incurred in obtaining the single expert report" were to be "borne by [the wife]".
46I shall refer to the single expert report as "the family report".
47The family report is dated 17 June 2012. It is annexed to Dr Watts' affidavit sworn 18 June 2012. Dr Watts' qualifications and experience were not in dispute.
48Dr Watts met with the husband on 30 April 2012, and with the wife on 14 May 2012. After meeting Senka on 17 May 2012, he observed her with the husband on 26 May 2012 and with the wife on 27 May 2012. He was provided with a significant quantity of material, which he identified in the family report.
49The family report reveals that the parties recognised a number of issues leading to or reflecting disputes between them:
a)the wife's relationship with her parents;
b)"skeletons in the closet" (being the existence of the wife's putative half siblings, and the reluctance of the wife and her family to accept and have a relationship with them);
c)the March 2011 incident (which is related to the alleged skeletons in the closet);
d)the wife's alleged use of drugs and alleged association with bikies;
e)the husband's perception of the wife and her family as "child kidnappers"; and
f)the husband's overbearing and insulting behaviour towards the wife.
50Dr Watts described the husband as presenting with "exceedingly strong views on the situation which had quite high emotional content". He added that the husband "expressed a very strong sense of entitlement, for example describing arguments with [the wife] about her taking the child to her parents 'against his will' as kidnapping". The husband's views "presented as very black and white".
51The husband undertook a standardised psychological test Personality Assessment Inventory at the request of Dr Watts. According to the family report:
The most notable aspect of the PAI profile was a sharp spike on the paranoia scale and a moderate spike on stress. On the sub-scale analysis while all three paranoid scales were elevated the highest was on the persecution scale. In family court, if people have mild elevations on the persecution scale it is not unusual but elevations on all three paranoid scales is unusual. Also of note was on the schizophrenia scales the psychotic experience scale was quite elevated but the social detachment and thought disorder scales were not.
Such a profile indicates that he is likely to have significant suspiciousness and hostility in his relationships with others. He is quick to believe he is being treated inequitably and will hold a grudge against others even if the perceived affront is unintentional because he is likely to question a mistrust of motives of those around him. ...
52The family report continued:
The overall assessment was not indicative of mental illness but had a strong flavour of personality disturbance or disorder and there is a possibility of a delusional disorder although in the context of the family court there are some grounds to feel distrusting and suspicious.
The intensity of the presentation is such that I would be recommending a psychiatric assessment prior to unsupervised access being implemented.
53Dr Watts' observations of the wife were unremarkable. Her PAI profile suggested that "there is a tendency that she either minimises or is unaware of problems in areas of her functioning which may be less than optimal". It also suggested that she is "likely to be a confident and optimistic person with a clear sense of purpose and distinct conviction".
54Overall, Dr Watts found the wife to be "an intelligent and sensible woman whose views seemed to be more conciliatory than ... provocative". He concluded his assessment of the wife as follows:
... having read the restraining order hearing, the affidavits and talked to the parties, I consider her grounds to be reality based.
55Elsewhere in the report, Dr Watts wrote:
•Both parents are extremely loving and devoted towards [Senka].
•The bottom line of concern with [the husband's] parenting relates to some of the bigger issues of him doing what he thinks is appropriate, for example he has already said that [Senka] should know the [alleged] half‑brothers and a little like the incident where [the husband] took the mother to meet her [alleged] half brother without her even being aware, I believe constitutes a risk that the father will inflict his views irrespective of whether they are of emotional benefit or not.
•The main area of concern ... relates to aspects of [the husband's] presentation. His strong views, sense of entitlement and limited insight is a combination for the child to be exposed to quite significant emotional risk in that she will need to do things on his terms and not what is necessarily in her best interest. This would also extend to [the husband] saying inappropriate things about [the wife]. [The husband] would view it as fact but it will not necessarily be emotionally appropriate for the child.
•... the dynamics [of the March 2011 incident] are quite concerning with the lack of insight into the mother's or daughter's distress. Similarly, the burning of the painting as a retaliatory action is a concerning indicator.
•... [the father] needs to undertake an extensive course to address these aspects of his behaviour. The nature of these incidents while physically quite low in terms of violence reflects quite significant levels of domestic violence risk of the emotional/control type, therefore a course in domestic violence would be appropriate. ... This would need to be at least one of the longer courses in the vicinity of six months.
56Dr Watts' recommendation was as follows:
While I appreciate the recommendations I am about to make will increase the father's frustration and anger at the system, due to the level of paranoia assessed, and the intensity of his views, I am of the view that prior to changing the supervised contact regime the father needs to have completed both a men's group/domestic violence type course, and had a psychiatric assessment. He also needs to have completed one or both of the recommended parenting courses.
57The recommendation in relation to parenting courses resulted from Dr Watts' concerns about the husband's ability to set boundaries from Senka and tendency to "overindulge her". Having regard to the observations in the Relationships Australia reports, however, and taking into account the comments made by Dr Watts in his oral evidence, I am satisfied that the husband does have the ability to set appropriate boundaries for Senka and that he is unlikely to "overindulge" her in the future. Notwithstanding my findings in that regard, I do not disagree that the husband should attend an appropriate parenting course. The reality is that he has never (or almost never) cared for Senka on an unsupervised basis since the date of separation – when Senka was less than one year old. It can do the husband no harm to improve his parenting and care giving skills. I am certainly of the view that both parties would benefit from attending a suitable post-separation parenting course.
Trip to Croatia (September/October 2012)
58In mid July 2012, the wife filed an application in a case in which she sought orders granting her permission to take Senka to Croatia for a holiday in September/October 2012, and related orders dealing with the restructure of the husband's supervised contact to enable the trip take place.
59On 13 September 2012, the court ordered that the wife have liberty to take Senka to Croatia for the holiday. The wife was required, however, to keep the husband informed of any relevant travel arrangements and to facilitate make up time to compensate for the contact periods that the husband would lose.
60These orders were made by Magistrate Vander Wal after a defended interlocutory hearing. The husband represented himself at the hearing. The wife was represented by [Mr Y].
61A transcript of the hearing before the learned Magistrate comprises annexure JP20 to the wife's trial affidavit. It is clear that the husband's presentation before the learned Magistrate was very similar to his presentation at trial. He queried the family report, suggesting that the report writer ignored or did not give adequate weight to the material that he (the husband) provided. He also suggested that the report writer effectively ignored the wife's character imperfections.
62The hearing on 13 September 2012 dealt (principally) with the wife's application for permission to take Senka to Croatia for a five-week holiday in September/October 2012. In support of the application, the wife had indicated that she proposed to take Senka to see members of both her and the husband's family in Croatia. She had also indicated that she had a good relationship with the husband's family in Croatia.
63The husband opposed the wife's application to take Senka to Croatia. The reasons for his opposition are less than clear, but they included the fact that he was having supervised contact with Senka at that time and that he did not want to forego any contact periods (which would be necessary if the trip to Croatia were to take place). He also argued that the wife did not have a good relationship with his family in Croatia and that, indeed, they wanted to have nothing to do with her.
64During the hearing, the husband referred to a statement signed by six members of his family in Croatia. The statement – which I shall call the husband's family statement – comprises annexure E to the husband's trial affidavit (see also Exhibit H1, which includes a copy of the original version of the statement in Croatian). The husband's family statement is savagely critical of the wife. It is undated, but the translation certification is dated 26 August 2012.
65The husband clearly regarded his family statement as a significant piece of evidence. I propose, therefore, to reproduce it in these Reasons:
To the honoured Court, the members of the family Tadic in Croatia, by signing this document, would like to accentuate some very important facts.
1.The whole of Tadic family would, sincerely and with a whole heart, like to see [[Senka]], but only under one condition, that she is brought to Croatia by her father [the husband], which we hope will happen soon.
2.We have had enough [of] lies, games, frauds, tears and everything we went through and suffered in the last three years on account of [the wife] and her family, and would like to never again be contacted or bothered by anyone from family, especially [the wife], because neither us or [the husband] deserve it.
3.We would like to emphasise that [the husband] has, and always had, a complete support from his family in the struggle for his child, while, on the other hand, such support [the wife] never had. Moreover, she used our kindliness to be able to falsify claim to the Court that she contacted us, and we asked her about little [[Senka]], so we have [no] more trust in her or any member of her family.
4.[The wife] claims to want [Senka] to meet her entire family, both from mother's and father's side. If that is true, let [the wife] have [Senka] meet her two brothers and their families on father's side. Their names are [X] and [Y]. [X] lives in Croatia, and [Y] in Australia, just a few minutes from [the wife]. This would help [the wife] prove her good intentions towards their and our families.
5.We are unanimous in the decision to never have [the wife] come in contact with us, even if she gets a Court decision about coming to Croatia, to avoid us in that occasion, as we want no trouble with this person, or any persons of similar nature.
6.We know with certainty that [the wife] was involved with drugs, criminal gangs, that she has no, or respects, any cultural, moral, religious or human norms, and that most of her friends are either drug users, or persons similar to her.
Honoured Court, we plead that you take these our words very seriously, as we trust that you will see that this case is about the personality of [the wife], who skilfully plans, takes advantage of, and manipulates people's feelings, and is playing games with the Court and Court procedures, to do harm to our family and [the husband], member of our family in Australia. We thank you in advance for reading and listening to these our words. Thank you.
66The husband's family statement is signed by his father, mother, sister, aunt, sister-in-law and brother-in-law.
67The wife's father was in Croatia when the wife received a copy of the husband's family statement. She telephoned him on or about 7 September 2012 (approximately six days before the interlocutory hearing on 13 September 2012) and informed him of the contents of the statement. On 8 and 9 September 2012, the wife's father saw and spoke with some of the members of the husband's family who had signed the husband's family statement. According to his evidence, which I accept, they greeted him happily. On 9 September 2012, they advised him that they did not know that the wife had applied for permission to take Senka to Croatia for a holiday. When he asked them – directly or indirectly – about the husband's family statement (which he had not seen, but which the wife had told him about), they denied having signed any documents about Senka and the wife. The impression of the wife's father was that the members of the husband's family with whom he had contact were "excited" about the wife and Senka coming to Croatia (see exhibit W2).
68At the hearing on 13 September 2012, the husband conceded that the wife's father had made contact with his family in Croatia. He asserted, however, that the husband's father was told ("nicely") to leave the premises. The husband's assertion in that regard was clearly hearsay, however, and no evidence was presented (either at the interlocutory hearing or at trial) to support it. As indicated above, I accept the evidence of the wife's father as to the nature of his contact with the members of the husband's family while in Croatia.
69The husband also suggested that some harm may befall the wife, and perhaps Senka, if they were to travel to Croatia (13 September 2012 transcript, page 8):
I would just like to mention that if she does get a court order to travel to Croatia with my daughter, [Senka], she's going to have no approval from any member of my family and I don't want to be responsible, I've done my thing, I came here, I've just explained the way things are especially in Croatia, because she is planning to go to Croatia so it's something different.
Different culture, place where I'm born, other rules, there are so many people over there that don't want to see any member of that family, especially with my daughter with them after everything that they've done.
70Towards the end of the hearing, the husband emphasised to the learned Magistrate that the wife would not take Senka to see his family in Croatia if she were permitted to travel there. Somewhat confusingly in the light of the husband's family statement, he appeared to be critical of the wife for that. He then added (13 September 2012 transcript, pages 16-17):
[The wife] simply is banned from my family over there, simple as that. ... They don't want to see her. ... The documents are provided to the court [presumably, the husband's family statement] are simple and clear, she is not welcome, no one from her family. ... I think for my daughter there is no danger to be near my family ... but considering my daughter is too young she cannot independently go and visit persons or places, she's got to be with [the wife and the wife's mother], so they can't visit my family.
71The learned Magistrate asked the husband if he would be prepared to have a psychiatric assessment (as recommended by Dr Watts). The husband said that he was not prepared to undergo such an assessment. He was then asked whether he was prepared to consider doing the six-month anger management course that had been recommended. The husband's response was (13 September 2012 transcript, page 11):
No, I disagree with those recommendations from the bottom of my heart.
72The husband also told the learned Magistrate that he disagreed with the recommendation relating to his attendance at a parenting program.
73When considering the wife's application to take Senka to Croatia, the learned Magistrate recognised that the wife intended to travel for five weeks for the purpose of a family occasion and acknowledged that she had endeavoured to make arrangements for make up time for the husband for the two supervised contact periods that were likely to be missed. The learned Magistrate also noted the wife's links to Australia and took account of the fact that the husband had not suggested that the wife would not return Senka to Australia after the trip. As indicated above, orders were made allowing the trip to proceed.
Documents relied upon
74The husband relied upon the following documents:
a)his various applications and responses (filed 21 April 2011, 29 June 2012 and 20 February 2013);
b)his case information affidavit sworn 19 April 2011;
c)his trial affidavit (sworn 18 March 2013;
d)affidavit of [Blanka Lulic] sworn 14 March 2013; and
e)affidavit of Philip Scott Watts (the single expert) sworn 18 June 2012 (although the husband later asserted that he was only relying on "some parts" of Dr Watts' report).
75The wife relied upon the following documents:
a)her various applications and responses (filed 11 May 2011, 22 August 2012 and 27 February 2013);
b)her affidavits sworn 6 January 2013 and 25 February 2013;
c)affidavit of her mother, [Kata Cupic], sworn 6 January 2013;
d)affidavit of her father, [Filip Cupic], sworn 6 January 2013;
e)affidavit of her sister, [Lana Cupic], sworn 6 January 2013; and
f)the affidavit of Dr Watts.
76Both parties filed relevant case outline documents.
77Given that both parties relied upon Dr Watts' affidavit and report, I called him as a witness of the court and enabled each party to cross-examine him.
78A small number of exhibits were tendered during the trial.
79Senior counsel for the wife indicated that he did not seek to cross-examine Ms Lulic. The husband indicated that he did not seek to cross-examine the wife's mother and sister. It follows that the only witnesses who gave oral evidence were the husband and the wife, the wife's father and Dr Watts.
Orders sought
80As indicated above, the wife sought sole parental responsibility for Senka. The husband sought an order for equal shared parental responsibility.
81The husband sought an order to the effect that Senka should live in a shared care arrangement with her parents (involving equal time). During the course of the trial, however, he indicated that, in reality, he simply sought as much time with Senka as the Court would be prepared to grant him. He recognised that his contact was likely to be significantly less than week about or a similar shared care structure, and was comfortable with such an arrangement – provided that the contact is not to be supervised.
82The husband also sought a specific order to the effect that contact not be supervised.
83Finally, he sought an order that each party should pay his/her own costs.
84The wife sought orders to the effect that Senka live with her and have contact with the husband on the same basis as occurs at present – in other words, supervised contact at a contact centre for approximately two hours each fortnight (or extended time at the contact centre if it can be arranged). She also sought orders to the effect that the husband pay the costs associated with supervision and that he be restrained by injunction from physically disciplining Senka and from denigrating the wife or her family to Senka or in her presence. In addition, the wife sought certain costs orders.
Parenting Orders – The Law[2]
[2] This generic summary of the law is based on similar summaries in my decisions in Mills & Watson (2008) 39 Fam LR 52 and Jets & Maker(2007) FLC 93-344.
85Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Part VII of the Family Law Act 1975 ("FLA"). Much of Part VII reflects comprehensive amendments to the pre-existing law, which came into effect on 1 July 2006.
86The Full Court carefully analysed the structure and effect of a significant portion of Part VII in Goode & Goode (2006) FLC 93-286 It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to s 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
87Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long term issues in relation to the child” [s 64B(3)]. Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long term issue in relation to a child ─ although such a decision could involve a major long term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent) [See the definition of "major long term issues" in s 4(1)].
88If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long term issue regarding a child, then the relevant decision must be made jointly. Further, an order for equal shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long term issue, and to make a genuine effort to come to a joint decision [s 65DAC]. Such consultation is not required in relation to issues that are not major long term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent [s 65DAE].
89As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in s 60CA:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
90The objects of Part VII, and the principles underlying it, are set out in s 60B. They are important.
91The objects of Part VII are set out in s 60B(1). They are:
… to ensure that the best interests of children are met by:
•ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
92The principles underlying these objects are set out in s 60B(2). They are:
… that (except when it is or would be contrary to a child's best interests):
•children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
•children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
•parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
•parents should agree about the future parenting of their children; and
•children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
93Aboriginal or Torres Strait Islander children not only have a right to enjoy their culture, but they also have the right to:
a)“maintain a connection” with and “develop a positive appreciation” of it; and
b)be provided with “the support, opportunity and encouragement necessary to explore the full extent of that culture” (consistent with the child's age and developmental level, and the child's views) [see s 60B(3)].
94Given that all the expressed objects of Part VII are directed towards ensuring that a child’s best interests are promoted, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in s 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests.[3] The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
2.The primary considerations are set out in s 60CC(2). They are:
a)the benefit to the child of having a meaningful relationship with both of the his or her parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[3] If the court is considering whether to make an order with the consent of all parties, it is not required to have regard to all or any of the listed factors (although it may do so if it wishes) ─ see s 60CC(5).
95The expression "family violence" has a very broad definition [s 4AB]. It comprises "violent, threatening or other behaviour by a person that coerce is or controls a member of the person's family ... or causes the family member to be fearful". Examples of family violence include assaults (including sexual assaults or other sexually abusive behaviour), stalking, repeated derogatory taunts, intentionally damaging property, unreasonably withholding necessary financial support and preventing the family member from staying in contact with his or her family, friends or culture. The concept of exposing a child to family violence is also broadly defined, and covers behaviour which causes or permits a child to see or hear family violence or otherwise experience the effect of family violence.
96When applying the two primary considerations, the court must give greater weight to the second consideration (than to the first). In other words, the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence will outweigh the court's obligation to recognise the benefit to a child of having a meaningful relationship with both of his or her parents.
97The additional considerations are set out in s 60CC(3). They include:
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the extent to which each parent has taken (or failed to take) the opportunity to participate in making decisions about major long-term issues regarding the child, and to spend time or communicate with the child;
d)the extent to which each parent has fulfilled (or failed to fulfil) his or her obligations to maintain the child
e)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
f)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
g)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
h)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
i)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
j)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
k)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
l)any relevant family violence, or family violence order;
m)whether it would be "preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child"; and
n)any other fact or circumstance that the court considers relevant.
98The long list of additional considerations makes it clear that – among other things – the court is required to focus upon each party’s "track record" as a parent.
99Although the primary considerations are listed before the additional considerations, they will not always "outweigh" them.[4] Clearly, the primary considerations "should be accorded particular importance in determining what order will best promote the interests of the child", but they will not always determine the outcome of the proceedings.[5] Further:[6]
… (the Court is) obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as (it thinks) appropriate in arriving at the result most likely to promote the child's best interests. … (Particular emphasis must be placed on the primary considerations) not only because the legislature has identified them as "primary" but also because they are manifestly of the utmost importance in determining what outcome will best advance the child's best interests.
[4] Champness & Hanson (2009) FLC 93-407 at [101].
[5] Marsden & Winch (No 3) [2007] FamCA 1364.
[6] Marsden & Winch (No 3) [2007] FamCA 1364 at [77-78].
100In considering the first of the primary considerations (being the benefit to a child of having a meaningful relationship with both of his/her parents) the "preferred" approach is to "consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents", although an approach which involves examining evidence of the nature of the child's relationship as at the date of the hearing in order to make findings based on that evidence and to frame orders accordingly may also be relevant in certain circumstances.[7] Irrespective of the approach to be adopted, the benefit to a child of a meaningful relationship with his/her parents is not a legislatively defined presumption, or even an assumption.
[7] McCall & Clark (2009) FLC 93-405 at [117-122].
101The Full Court in Goode summarised the above process as follows:[8]
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined comprises the factors in sections 60CC ... The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.
[8] Goode & Goode (2006) FLC 93-286 at [10].
102Notwithstanding the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper.[9] Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper.[10]
[9] See, in a different context, McLay & McLay (1996) FLC 92-667 at 82,901.
[10] FLA s 65D(1).
103When making a parenting order, the court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility.[11] Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
[11] FLA s 61DA.
104The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence. In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.[12]
[12] FLA s 61DA(3); it is important to note, however, that the Full Court in Goode & Goode (at 78) held that the discretion in s 61DA(3) should not be exercised "in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult."
105In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility.[13]
[13] See s 61DA(4).
106Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise[14]), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable[15] and in the child's best interests. If it is both of these things, then the court must consider whether it should make an order to that effect.[16] If the court comes to the conclusion that an order for equal time should not be made, then it must then go on to consider whether the child spending "substantial and significant time"[17] with each parent would be both reasonably practicable[18] and in the best interests of the child. If it is both of these things is, then the court must consider whether it should make an order to that effect.[19]
[14] See, for example, Goode at [46] and [47], and Pender & Haywood [2007] FamCA 1526 at [44].
[15] How a court determines "reasonable practicality" is the subject of s 65DAA(5).
[16] FLA s 65DAA(1).
[17] "Substantial and significant time" is defined in s 65DAA(3).
[18] How a court determines "reasonable practicality" is the subject of s 65DAA(5).
[19] FLA s 65DAA(2); see also Goode at.[43] and [44].
107In MRR v GR (2010) 240 CLR 461, the High Court said:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order (for equal time). ... A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. ... If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. ...
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. (Emphasis added.)
108The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Part VII itself. In Taylor & Barker (2007) FLC 93-345, however, the Full Court said[20]:
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that section 60CC(1) provides that in determining what is in the child's best interests, the court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests.
[20] At 62; see also Sealey & Archer [2008] FamCAFC 142..
109The Full Court in Taylor & Barker added that failure to follow the above approach (which it clearly regards as "the logical approach") does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".
110In Mazorski & Albright (2007) 37 Fam LR 518, Brown J dealt with the “additional considerations” (in s 60CC(3)), prior to dealing with the primary considerations (in s 60CC(2)). In Moose & Moose (2008) FLC 93-375, Boland J (with whom May J agreed) approved of such an approach, saying that, in certain cases, it may help to focus the court's attention on relevant matters to be determined under s 60CC(2) if it first considers and makes findings about relevant factors under s 60CC(3).[21]
[21] See also Collu & Rinaldo [2010] FamCAFC 53 at [335].
111Having summarised the effect of the amendments to Part VII in paragraph 65 of its judgment in Goode, the Full Court then described the "legislative pathway" that "must be followed" in interim proceedings in paragraph 82. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought.[22]
[22] See, for example, Hungerford & Tank [2007] FamCA 637 and M & S (2007) FLC 93-313 at 81,376.
112The relevant steps (as modified for a final hearing, and taking into account the High Court's decision in MRR v GR) are as follows:
a)Identify the parties’ competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant s 60CC factors and (if possible) make findings about them.
e)Decide whether the presumption in s 61DA (that equal shared parental responsibility is in a child's best interests) applies.
f)If the s 61DA presumption applies, then consider whether it has been rebutted (because its application would not be in the child's best interests).
g)If the s 61DA presumption applies, and has not been rebutted, then consider both the following questions:
i)Is it in the best interests of the child to spend equal time with each parent?
ii)Is it reasonably practicable that the child spend equal time with each parent?
h)If both the above questions are answered in the affirmative, then consider making an order for equal time, but the court is not obliged to make such an order.
i)If the s 61DA presumption applies and has not been rebutted, but equal time is not in the child's best interests, or is impracticable, then consider both the following questions:
i)Is it in the best interests of the child to spend substantial and significant time with the other parent?
ii)Is it reasonably practicable that the child spend substantial and significant time with the other parent?
j)If both the above questions are answered in the affirmative, then consider making an order that the child spend substantial and significant time with the other parent, but the court is not obliged to make such an order.
k)In considering whether to make an order for equal time (or, alternatively, an order for substantial and significant time), the court is not required to assume that it is desirable that such an order should be made, or that the making of such an order is the "default" position (as it were) under the FLA. Instead, the court must concern itself with the reality of the situation of the parents and the child; it must make a practical assessment of whether equal time (or, alternatively, substantial and significant time) is both feasible and in the best interests of the child.
l)If the s 61DA presumption has been rebutted or does not otherwise apply, or if it does apply but neither equal time nor substantial and significant time are both feasible and in the best interests of the child, then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are "at large and to be determined in accordance with the child's best interests" (or, in other words, as a result of consideration of the objects and principles in s 60B and the factors set out in s 60CC).[23]
[23] Goode at 65.8.
113Throughout the entire process, the court must bear in mind that the child's best interests "remain the overriding consideration",[24] and that the child's best interests are to be “ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC”.[25]
Family violence[26]
[24] Goode at 65.11.
[25] Goode at 65.9.
[26] This generic summary of the law is extracted from my decision in the matter of Mills & Watson (2008) 39 Fam LR 52.
114I have already referred to the subject of family violence in my summary of the law relating to parenting orders set out above.
115"Family violence" is defined in FLA s 4AB, which is as follows:
(1)For the purposes of [the FLA], family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
a)an assault; or
b)a sexual assault or other sexually abusive behaviour; or
c)stalking; or
d)repeated derogatory taunts; or
e)intentionally damaging or destroying property; or
f)intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
116Nearly 20 sections of the FLA refer to family violence. In broad terms, they require the court to take family violence into account when considering a child's best interests, and require the court to ensure that any orders that it makes do not expose a person to an unacceptable risk of family violence. Some sections operate to facilitate the admission of evidence relating to child abuse or family violence. Other sections direct the court to take prompt action in relation to allegations of child abuse or family violence. Of particular significance, however, is the reference to family violence in s 60CC.
117I have referred to s 60CC (which deals with how a court determines what is in a child's best interests) elsewhere in these Reasons. Relevantly, I have referred to what are described as the primary considerations and additional considerations which the court must consider in determining what is in a child's best interests. The primary considerations comprise the benefit to children of having a meaningful relationship with their parents (on the one hand) and the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (on the other). The importance which the law places on the need to protect children from family violence (and the other behaviours to which I have referred) is such that s 60CC(2A) specifically directs the court to give greater weight to that primary consideration than to the other primary consideration (dealing with the benefit to children of having a meaningful relationship with their parents). In other words, if it is necessary to prevent children having a meaningful relationship with one of their parents (or to limit or impede such a relationship) in order to ensure that those children are protected from physical or psychological harm (from being subjected to, or exposed to, abuse, neglect or family violence), then that is what must happen. To use a colloquialism, the need to protect children from family violence trumps the benefit to children of having a meaningful relationship with the parent who is the perpetrator of the family violence.
118Family violence is also referred to (in a broad sense) as an additional consideration in s 60CC, as are family violence orders.
119In relation to the subject of family violence generally, the decision of the England and Wales Court of Appeal in Re L, V, M & H (Children) [2000] 2 WLR 339; is of particular relevance. In that case, Waller LJ emphasised “the key points” in the judgments of the other two members of the Court as follows:
The effect of children being exposed to domestic violence of one parent as against the other may up until now have been underestimated by Judges, and advisors alike;
It follows that alleged domestic violence is a matter which ought to be investigated, and on which findings of fact should be made because if it is established, its effect on children exposed to it, and the risk to the residential carer are highly relevant factors in considering orders for contact and their form;
In assessing the relevance of past domestic violence, it is likely to be highly material whether the perpetrator has shown an ability to recognise the wrong he (or less commonly she) has done, and the steps taken to correct the deficiency in the perpetrator’s character;
There should, however, be no presumption against contact simply because domestic violence is alleged or proved; domestic violence is not to be elevated to some special category; it is one highly material factor amongst many, which (factor) may offset the assumption in favour of contact when the difficult balancing exercise is carried out by the Judge applying the welfare principle and the welfare check list.
120Insofar as Waller LJ’s reference to the “welfare principle and the welfare checklist” is concerned, it is clear that the Australian counterparts of those considerations comprise the principle that the best interests of the children are to be the paramount consideration in a case involving parenting issues, and the factors set out in s 60CC of the Family Law Act 1975.
121In Re L, Butler-Sloss P said that:
It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally.
122Her Honour and the remaining member of the Court of Appeal (Thorpe LJ) also cited with approval the following passage from the judgment of Wall J in Re: M (Contact Violent Parent) (1999) 2 FLR (UK) 321:
Often in these cases where domestic violence has been found, too little weight in my judgment is given to the need for the father to change. It is often said that, notwithstanding the violence, the mother must nonetheless bring up the children with full knowledge in a positive image of their natural father and arrange for the children to be available for contact. Too often it seems to me the courts neglect the other side of that equation, which is that a father, like this father, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.
123As Butler-Sloss P summarised:
Assertions (to the effect that a parent who has behaved inappropriately has now changed), without evidence to back it up, may well not be sufficient.
124I completely agree with the comments made by Butler-Sloss P and Wall J in the passages cited in the previous three paragraphs.
Unacceptable Risk
125The concept of "unacceptable risk" is also relevant in the present context. The concept has its genesis in the decision of the High Court in M & M (1988) 166 CLR 69. In that case, the High Court was dealing with a parenting case in which there had been allegations of sexual abuse.
126The High Court said (at page 77,081):
Efforts to define with greater precision the magnitude of the risk which will justify a Court in denying a parent access to a child have resulted in a variety of formulations…this imposing array indicates that the Courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse (emphasis added).
127In B & B (1993) FLC 92-357 , the Full Court said:
…a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated: "Even in such a case, however, there may be a risk of disturbance to a child who is brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her". (Emphasis added.)
Therefore, if supervised access poses an "unacceptable risk" of harm (or "disturbance"), whether physical, emotional or psychological, it should not be granted.
128In A v A (1998) 146 FLR 188, the Full Court considered the concept of "unacceptable risk" in the context of contact proceedings. After referring to M & M and B & B, the Full Court said (at page 84,995):
The task which (the Court) was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband…
The term identified by the High Court in M & M as “unacceptable risk” provides the touchstone for such an inquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involved the assessment of the risk of future physical and/or emotional harm…
… the primary question which (the Court) should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father’s care.
129In Richards & Brown (2011) FamCA 662, Ryan J summarised the relevant principles to be applied in determining abuse allegations. In doing so, her Honour concluded the summary as follows:
31.The onus of proof in the civil standard of proof in accordance with s 140 of the Evidence Act. As the Full Court in Johnson and Page (2007) FLC 93-344 said, a Court will only make a positive finding that sexual or other abuse has happened when, by reference to s 140(2)(c) of the Evidence Act the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred”: W & W (2005) FLC 93-235.
32.If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. Where none, rather than some only, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established. Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard: Johnson and Page.
33.The findings made in the assessment of risk addresses part of the Court’s responsibilities. Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors. In M v M (at 76) the High Court said:
The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse and the balance of probabilities.
Taking the opportunity to participate in making decisions about major long-term issues regarding the child, and to have contact with the child
218To date, the wife has made all or almost all decisions regarding major long‑term issues relating to Senka. The father has made very little effort to involve himself in such matters, preferring to allow his antipathy to and mistrust of the wife and her family, the frustration engendered by their rejection of his sense of entitlement and his general feelings of resentment, to excuse him from such involvement – and then to justify such an approach. His attitude has led him to a position where, on the one hand he has written to the wife's solicitors demanding that they not communicate with him further ("please with a cherry on top do not send me anymore correspondence of any kind") and on the other hand he has seen fit to complain to the Court about the wife's refusal to keep him advised relating to matters relevant to Senka's welfare.
219Although the husband could have made a greater effort to spend time with Senka, I accept that he has seen her regularly since the order for supervised contact was made. Such interruptions to the contact arrangements as have occurred have been relatively minor. Prior to the making of the order for supervised contact, however, the husband clearly wasted significant parts of his contact time with Senka in insulting and arguing with the wife.
Meeting obligations to maintain the child
220I have discussed this subject elsewhere in these Reasons. It is clear that the husband has not met his obligations to maintain Senka. Although it does not excuse the husband's failure to meet his obligations, one of the reasons why he has not paid child support is because the wife indicated, directly or indirectly, that she did not require him to pay it. During the course of her evidence, the wife said that she neither wanted nor needed child support from the husband.
221I have taken this consideration into account but, in my opinion, it is not a significant factor either for or against the proposals of either party.
Facilitation and encouragement of relationship between child and parent
222The wife has sought to encourage Senka's relationship with the husband. She supervised contact herself for an extended period (thereby subjecting herself to taunts and insults from the husband on a regular basis, and rendering herself susceptible to his unwelcome and wholly inappropriate advances). I find that the wife has not sought to negatively influence the relationship between the husband and Senka, and that she certainly has not "kidnapped" Senka or deliberately prevented the husband from seeing her. When the wife was no longer able to personally supervise the husband's time with Senka, she proposed and facilitated supervised contact at a contact centre.
223The husband asserted that he is both willing and able to facilitate and encourage a close and continuing relationship between Senka and the wife. At one level, I am prepared to accept the husband's assertion. At another level, however, I have discomfort with the husband's capacity in that regard. The evidence reveals that the husband is volatile and unpredictable, and lacking in empathy and insight. Such is his antipathy towards the wife and her family that there are likely to be times when he will attempt to negatively affected Senka's relationship with them. The husband is unlikely to be able to "hold his tongue" – whether or not Senka is present – if he becomes sufficiently upset by something that he perceives that the wife or a member of her family has done. It is to be hoped that the husband's capacity to avoid the type of behaviour referred to above will be improved after attendance at the programs or courses referred to in the orders.
Effect of changes in child's circumstances
224The husband's initial proposal was for a shared care arrangement. On the basis of the evidence presented, that option must be rejected. It is in Senka's best interests for the husband to continue to have supervised contact with her until (at least) he has complied with Dr Watts' recommendations. For the next six months or so, therefore, there are not likely to be any significant changes in Senka circumstances.
225Senka has only ever lived with the wife, and she has lived with the wife's family for a very large part of her short life. Any change to that arrangement, unless orchestrated and managed by the wife with the assistance of her family, would be detrimental to Senka.
Practical difficulties and expense associated with contact
226There will be no significant change the current supervised contact arrangements until (at least) the husband has complied with Dr Watts' recommendations.
227It would appear, however, that some difficulties have arisen regarding the availability of the contact centre to provide supervised contact with the degree of regularity that currently adheres (being once per fortnight, for two hours). I am not persuaded that contact should take place other than in a strictly supervised environment at this stage. It follows that I will be requiring both parties to use their best endeavours to ensure that the frequency of supervised contact is not reduced.
228Unfortunately, if it should transpire that the contact centre is not available more frequently than, say, once every three weeks or four weeks, then the husband will have to have supervised contact on that basis. In my opinion, there is no alternative, because the need to protect Senka from exposure to family violence, and from harm generally, outweighs the benefit to her of an expanded (and arguably more meaningful) relationship with the husband.
Capacity to provide for the child's needs
229I am satisfied that the wife has the capacity to properly provide for Senka's emotional and intellectual needs in both the short and the long term – with or without the assistance of her family.
230It is likely that the husband is capable of providing for Senka's intellectual needs, but I find that he is not currently capable of providing for her emotional needs – one of which comprises the ability to have a free and unhindered, loving and close relationship with her mother (and her mother's family). It is to be hoped that the husband's capacity to provide for Senka's needs will increase after he has completed the courses referred to in Dr Watts' recommendation.
Maturity, lifestyle and background of the child and the parties
231Both parties are of Croatian heritage (the father being born in Croatia). Both parties speak fluent Croatian and support their Croatian cultural heritage.
232The evidence reveals that the husband is immature. Such immaturity plays a part in the husband's personality, and seemingly either causes or exacerbates his impulsivity and volatility. In my opinion, it also impedes the development of any insight on the part of the husband as to the true impact on the wife – and on Senka – of his outlook and his behaviour. To some extent, the husband's immaturity also nurtures and supports the preoccupations or obsessions discussed elsewhere in these Reasons.
233Perhaps the best example of the husband's immaturity is his refusal to do the courses and undergo the assessment recommended by Dr Watts. Even on his own case, the husband's behaviour has been troubling and less than satisfactory at times. A mature and responsible approach would have been to give careful thought to the recommendations and to recognise that there are good grounds for their inclusion in the family report. Instead, the husband saw fit to metaphorically chip around the edges of Dr Watts' report, hoping to minimise some of its impact at trial. In that endeavour, the husband was wholly unsuccessful. As was the case with the wife's evidence and the evidence of her father, the husband was able to mount a brave and partially effective attack on some relatively minor peripheral components of the witnesses' accounts, but wholly unable to successfully challenge any of the large and significant pieces of evidence.
Attitude to the child and to responsibilities of parenthood
234I accept that the mother has demonstrated a devotion to Senka's welfare and shown a positive attitude to the responsibilities of parenthood. The only qualification that I would add relates to the wife's comments regarding her unwillingness to claim or receive child support from the husband. I have discussed this subject elsewhere in these Reasons.
235The wife raised a great many criticisms of the husband's attitude to the responsibilities of parenthood, and many of those criticisms are fair. The husband has not contributed child support to the extent to which he has been able to do so. Further, the husband has left virtually all of the responsibilities of parenthood to the wife. Only time will tell if the husband will mature and begin to accept all the responsibilities of parenthood. To date, however, the husband has failed to protect Senka from family violence and failed to meet most of Senka's basic needs. Instead, he has been preoccupied with his own needs, and with his perception that the wife has unreasonably refused to submit to his will. His sense of entitlement has clearly impeded the development of a mature approach to the responsibilities and duties of parenthood.
Family violence
236I have dealt with the subject of family violence elsewhere in these Reasons.
237The VRO was granted over the husband's objections. It remains in force, at least for the next few months. The transcript of the VRO hearing reveals the extent and seriousness of the husband's behaviour. The most egregious example of family violence is the March 2011 incident, but it is not the only example. The husband has also subjected the wife to repeated derogatory taunts (and made threats to her), intentionally damaged or destroyed property (being the painting and the Christmas tree), and attempted to impede the wife in maintaining her connections with her family.
238I am concerned about the husband's psychological or psychiatric state, and troubled by Dr Watts' evidence regarding parties who have a strong and unreasonable sense of entitlement, particularly when coupled with obsessive preoccupations. Clearly, I am not an expert, but it is appropriate to record that the husband's demeanour and presentation during the course of the trial itself has concerned the Court. To his credit, the husband seemed to accept some of the comments made by the Court during the trial, and professed to having changed his view regarding some matters by the end of the trial. I am not persuaded, however, that the husband's sense of entitlement, and his preoccupations (for example, the characterisation of the wife and her family as "kidnappers" and the need to humble the family by revealing "skeletons in the closet"), are so easily cast aside.
239Put shortly, it is my view that a comprehensive psychiatric assessment of the husband is an essential prerequisite to an increase in the amount of time that the husband spends with Senka.
Orders least likely to lead to the institution of further proceedings
240In all the circumstances, and taking into account Dr Watts' recommendations, the Court has no alternative but to make orders designed to protect Senka from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence caused by the husband or as a result of his actions or inaction.
241In her case outline documents, the wife submitted:
The husband's lack of insight and fixed attitudes are the most troubling aspects, and it may be that if the husband seeks the required help he needs that the position may change. If the husband seeks the help required, it is the wife's position that she may then re-evaluate the risks to the child, which may not require any further proceedings.
242I propose to give the husband the opportunity to obtain "the help he needs". I also propose to give the wife the opportunity to re-evaluate the risks to Senka after the husband has completed the steps recommended by Dr Watts.
243During his closing address, senior counsel for the wife submitted that the court should consider supervised contact on a long term, or even indefinite, basis. I accept that the Court has power to make orders for supervised contact on a long-term basis, but I am not persuaded that it is in Senka's best interests to "shut the door" on the husband at this stage. True it is that his concessions towards the end of the trial are likely to have been made for strategic purposes but, in my opinion, the husband should be given the opportunity to confront and overcome the psychological or psychiatric issues referred to by Dr Watts and, in the fullness of time, perhaps move to unsupervised contact.
244The orders that I propose to make will provide for the introduction of unsupervised contact, but make it subject to intervention on the part of the wife if she is not satisfied that the progression to unsupervised contact is in Senka's best interests. In that way, there is a possibility of avoiding further proceedings as the wife contemplated in her case outline.
245In relation to the issue of parental responsibility, however, I am persuaded that the husband's proposal (for equal shared parental responsibility) is impractical and contrary to Senka's best interests. I have discussed the subject in more detail below. Suffice it to say, however, that I accept Dr Watts' evidence to the effect that the parties cannot communicate effectively and that they are unlikely to be able to negotiate arrangements if left to their own devices. In my opinion, an order for equal shared parental responsibility would guarantee further proceedings between the parties. The orders that I made on the final day of the trial will avoid that likelihood.
Other relevant facts or circumstances
246There are no other relevant facts or circumstances that have not been discussed elsewhere in these Reasons.
Conclusion as to most satisfactory proposal
247In my opinion, and
a)bearing in mind that Senka's best interests remain the overriding consideration;
b)taking into account the objects and principles set out in FLA s 60B; and
c)having regard to my discussion of the s 60CC factors above,
I conclude that in general terms, the wife's proposals are far more likely to be in Senka's best interests than the husband's proposals.
248I have referred to the issue of unacceptable risk elsewhere in these Reasons. The risks associated with the husband having unsupervised contact at this time are unacceptable. The aim of the orders that I propose to make is to convert an unacceptable risk of harm (in the sense discussed above) to an acceptable risk, thereby allowing a transition to unsupervised contact to occur. Much will depend, of course, upon the husband's conduct subsequent to the making of the orders and the result of the psychiatric assessment.
249One of the most striking aspects of the husband's case was his failure to put forward any clear proposals relating to his care of Senka in the event of the Court determining that she should have unsupervised contact with him – let alone in the event of the court determining that she should live with him in some kind of shared care arrangement. No details whatsoever were supplied in relation to accommodation, supervision, health, education and the like. This was in stark contrast to the overly detailed proposals set out in the wife's trial affidavit (which the husband had received well before the trial). As senior counsel for the wife said during his closing address, the husband is intelligent and could have (and should have) used the wife's affidavit as a blueprint for the type of information that the court might regard as important. He elected not to do so.
250Mr Castiglione also submitted in closing that the husband's inability to see how his intention to inform Senka about the existence of the wife's putative half siblings might impact on her was a matter of grave concern. Mr Castiglione likened it to opening an "emotional Pandora's box". He said that, when added to the husband's lack of empathy, attempts to denigrate the wife, determination to "prick the balloon of the Cupic family", likely subordination of Senka's best interests to his wishes, reluctance to "recalibrate his behaviour", strong views on many subjects, marked sense of entitlement, assessed level of paranoia, limited insight and tendency to (effectively) turn every molehill into a mountain, the only realistic option is a continuation of supervised contact – with sole parental responsibility to the wife.
Parental Responsibility
251As indicated above, the legislative presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has abused his or her child, or has engaged in family violence. Having regard to the March 2011 incident, and to other aspects of the husband's behaviour as discussed in these Reasons, it is clear beyond argument that the presumption does not apply.
252Even if the presumption relating to equal shared parental responsibility could be regarded as applying in the present case, it can be rebutted by evidence that satisfies the Court that it would not be in Senka's best interests for an order to be made to that effect. For the reasons that appear elsewhere in this judgment, I have formed the view that it is in Senka's best interests for an order to be made to the effect that the wife have sole parental responsibility for making decisions about Senka's major long-term issues.
253The effect of Dr Watts' evidence is that that equal shared parental responsibility cannot work. In my opinion, it is difficult to imagine the parties having constructive communication about Senka and her best interests – at least until the husband has completed the courses and programs which I propose to order. The evidence reveals that the wife's attempts to communicate with the husband have been unsuccessful, and I am not confident that any such efforts in the future would deliver a better outcome. Again, the position may improve after the husband has completed the courses and programs which I propose to order.
254In addition to the above, I find that the husband's personality is such that he is unwilling or unable to accept any decision which does not conform with his own views. Further, the evidence reveals that he is unwilling or unable to relate to the wife (and her family) constructively.
255I am aware that generic concerns regarding the potentiality of an impasse in decision-making brought about by the inability of one party’s view to prevail over that of the other, or regarding the limitation of communication between former partners who no longer like or respect each other, or even regarding the convenience (from, for example, a school's point of view) of being able to deal with one party instead of both … "are not – in themselves – sufficient to rebut the presumption of equal shared parental responsibility".[27] The Full Court in Chappell said, however, as follows:[28]
In order to rebut the presumption [of equal shared parental responsibility] it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child's best interests the Court must take into account the prescribed matters in sections 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child's best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, that the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. (Emphasis added).
[27] Chappell& Chappell (2008) FLC 93-382 at 82,843.
[28] Chappell& Chappell (2008) FLC 93-382 at 82,843.
256Leaving aside the question of whether the presumption actually applies, there can be no doubt that, in the present case, the application of the presumption would not be in Senka's best interests because the husband's track record and his statements during the course of the trial (even though he attempted to soften or modify them at a later stage) guarantee an extremely high probability of deadlock, which will inevitably lead to further proceedings.
257I find that the only practical and realistic order that can be made in relation to parental responsibility, and the order that best promotes Senka's best interests, is an order for sole parental responsibility in the wife's favour.
258I am satisfied, however, that the wife should consult the husband in relation to any decision to be made about a major long-term issue and that she and the husband should make a genuine effort to come to a joint decision about the issue. But the final word, as it were, should rest with her.
Orders
1.The wife have sole parental responsibility for the child, SENKA MARA TADIC born [day and month omitted] 2009 (“the child”).
2.The child live with the wife.
3.Notwithstanding paragraph 1 above, in exercising sole parental responsibility in relation to major long-term issues, the wife must:
a)consult the husband in relation to any decision to be made about the relevant issue, such consultation to be by way of letter, email or SMS text message (but not limited to such forms of communication);
b)make a genuine effort to come to a joint decision about the issue; and
c)in the event that the parties are unable to come to a joint decision about the issue, notify the husband of any decision relating to the issue within seven days of making such decision.
4.The husband must forthwith do all acts and things necessary to attend upon a psychiatrist as nominated by the wife for the purpose of the preparation of a report providing an assessment of his psychiatric state, such report ("the Report") to deal with the following matters:
a)the husband’s relevant history (including relevant medical history);
b)the husband’s psychiatric, psychological and emotional health and functioning;
c)any relevant diagnosis; and
d)if appropriate, suggested treatment or management, and the likely prognosis.
5.The wife must provide to the psychiatrist, as soon as practicable, copies of:
a)these Reasons for Judgment; and
b)the single expert witness report prepared by Dr Watts and dated 17 June 2012.
6.The husband and the wife otherwise be at liberty to provide to the psychiatrist copies of all documents (whether or not filed in these proceedings) that they may consider relevant.
7.The husband must authorise and direct the psychiatrist to read and give such weight as he/she considers appropriate to the documents provided by the husband and the wife pursuant to these orders, and must authorise and direct the psychiatrist to have at least one interview with the wife and to provide a copy of the Report to the wife contemporaneously with its provision to the husband.
8.The cost of the Report be borne by the husband and the wife in the following proportions:
a)the husband: two thirds; and
b)the wife: one third.
9.The husband and the wife must:
a)attend and complete, as soon as practicable, an appropriate post separation parenting program ("the Program") at an organisation as nominated by the Director of the Mediation and Counselling Service of the Family Court of Western Australia or his/her nominee;
b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
c)pay and otherwise be responsible for all costs associated with the Program; and
d)provide an appropriate certificate of completion of the Program to the other party.
10.The husband must:
a)attend and complete, as soon as practicable, an appropriate structured parenting course (such as the Triple P and the One, Two, Three Magic courses) ("the First Course") at an organisation as nominated by the Director of the Mediation and Counselling Service of the Family Court of Western Australia or his/her nominee;
b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the First Course ;
c)pay and otherwise be responsible for all costs associated with the First Course; and
d)provide an appropriate certificate of completion of the First Course to the wife.
11.The husband must:
a)attend and complete, as soon as practicable, an appropriate domestic violence/anger management program (of no less than three months duration) ("the Second Course") at an organisation as nominated by the Director of the Mediation and Counselling Service of the Family Court of Western Australia or his/her nominee;
b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Second Course;
c)pay and otherwise be responsible for all costs associated with the Second Course; and
d)provide an appropriate certificate of completion of the Second Course to the wife.
12.Subject to paragraph 13 below, paragraphs 1 to 6 (inclusive) of the orders made in the Magistrates Court, 150 Terrace Road, Perth on 23 June 2011 ("the supervised contact orders") remain in full force and effect.
13.Notwithstanding paragraph 12 above, the supervised contact orders be discharged at the expiration of 60 days after the husband has:
a)obtained the Report and ensured that the wife has received a copy of the Report; and
b)completed the Program and the First Course and the Second Course and provided the wife with appropriate certificates of completion in relation to the Program and the First Course and the Second Course ("the discharge date"); and
c)provided the wife with written advice of arrangements he has made for spending time with the child, including the address and telephone number of the husband's primary residence, together with the names of any other occupants of the said residence.
14.With effect from the discharge date, the husband spend time and communicate with Senka as follows:
a)for the first three months: for a period of four hours on one day of each weekend;
b)for the next three months: for a period of seven hours on one day of each weekend:
c)for the next three months: each alternate weekend from 10.00 am on Saturday to 5.00 pm on Sunday; and
d)for the next three months: each alternate weekend from 5.00 pm Friday to 5.00 pm on Sunday.
15.Both parties have liberty to apply in relation to the implementation of paragraph 14 above, and in relation to the continuation of the spend time arrangements after the completion of the period contemplated in paragraph 14 above.
16.Notwithstanding paragraphs 13, 14 and 15 above, the wife have liberty to apply during the 60 day period referred to in paragraph 13 above for orders designed to delay or prevent the commencement of the spend time arrangements set out in paragraph 14 above.
17.The husband must:
a)advise the wife immediately in the event that the child suffers any serious illness or injury during her time with the husband; and
b)authorise any medical professional upon whom the child may attend from time to time, to communicate with the wife regarding the child's condition and/or requirements.
18.The husband, his servants and agents be and are hereby restrained by injunction from:
a)abusing, insulting, belittling, rebuking or otherwise denigrating the wife; and
b)discussing these proceedings,
to, with or in the presence or hearing of the child, and from permitting any other person to do so.
19.Subject to these orders, all extant parenting orders (including the orders made on 16 April 2013) otherwise be discharged.
20.Both parties have leave to file an application in a case in relation to costs, together with written submissions (limited to a maximum of 10 pages), within 28 days.
I certify that the preceding [258] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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