Taylor and Sage

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAYLOR & SAGE

[2016] FCCA 80

Catchwords:
FAMILY LAW – Further tranche of litigation about 5 year old boy – entrenched mutual dislike on part of both parents – both parents lacking insight – assertions of violence and poor parenting skills made by mother against father – father wholly self-exculpating – truth somewhere between parties’ positions – lack of concentration on child’s best interests – excellent family report – orders made largely as proposed by family report writer.

Legislation:

Evidence Act 1995, s.128

Family Law Act 1975, ss.4A, 60CC

Goode v Goode [2006] FamCA 1346

Applicant:

MR TAYLOR

Respondent:

MS SAGE

File Number:

MLC 10643 of 2010

Judgment of:

Judge Burchardt

Hearing dates:

19 & 20 November 2015

Date of Last Submission:

20 November 2015

Delivered at:

Melbourne

Delivered on:

25 January 2016

REPRESENTATION

Counsel for the Applicant:

Ms Byrnes

Solicitors for the Applicant:

Carew Counsel Pty Ltd

Counsel for the Respondent:

Mr Whitchurch

Solicitors for the Respondent:

Starnet Legal Pty Ltd

ORDERS

All previous parenting orders be discharged.
Mr Taylor and Ms Sage have equal shared parental responsibility for the child, X.
If the parents are unable to make significant decisions by agreement about X’s education and health, the mother is to decide what is in the best interest and inform the father of her decision.
In the event that the parents are unable to agree on who attends an event with X, the parent who is more involved in the activity is to accompany X to the relevant event.
X is to live with his mother.
X is to spend time with the father:
(a)In one week from Friday after school to Sunday at 6:00 pm; and
(b)In the alternate week one night from Thursday after school to Friday morning at the commencement of school.
(c)For (religion omitted) (which falls on two occasions per year) in each year:
(i)On the first occasion of (religion omitted) (known as (religion omitted)) from 5:00pm the day before the first day of (religion omitted) until 3:00pm on the first day of (religion omitted); and
(ii)On the second day of (religion omitted) (known as (religion omitted)) from 12:00pm on the first day of that occasion of (religion omitted) until 9:00am on the second day of that occasion of (religion omitted);
with the dates of (religion omitted) to be advised by the father to the mother by SMS text message in each year once the dates for (religion omitted) for that year have been determined.
(d)On the child’s birthday from 2:00pm to 7:00pm or as otherwise agreed between the parties.
(e)On 2016 and each alternate year thereafter, from 7:00pm on New Year’s Eve to 7:00pm on New Year’s Day. ;
(f)From 9:00am on Father’s Day until before school Monday;
(g)Such further and other times as agreed between the parties.
X spend half the short school term holidays with his father as agreed, but in default of agreement in the first half of the school holidays.
During the long January school holiday period X spend alternate weeks with each parent.
Orders 7 and 8 are based on the condition that the father is not working and is available to spend time with X during the school holiday periods.
X’s overnight time on his alternate weekend will expand to Monday morning at commencement of school from 2017.
That the father’s time with the child pursuant to order 6 is suspended as follows:
(a)From 9:00am on Mother’s Day until 9:00am on the day immediately following Mother’s Day;
(b)In 2015 and each alternate year thereafter, from 7:00pm on New Year’s Eve to 7:00pm on New Year’s Day.
That for the purposes of changeover on a non-school day the mother and the father (or their nominee as confirmed by way of SMS text message prior to the changeover occurring) collect the child from the front of the (omitted) Bank (within view of the CCTV range) at (omitted) Shopping Centre, or such other location as may be agreed in writing including SMS text message and email communication.
That in the event that the mother or father travel overseas without the child, the mother or father’s immediate family be given an option to spend time with the child for a period of no less than a 10 hour block per week at times to be agreed and failing agreement from 7:00am to 5:00pm on a Saturday during the father’s usual time with the child, with the changeover arrangements to be conducted by one of the father’s sisters.
That if either party wishes to travel outside the State of Victoria, during the time provided for in these orders unless agreed otherwise and provided that the travel does not interfere with school unless agreed, they provide to the other party at least 21 days written notice of their intended travel with the child, including copy itinerary, copy return tickets and contact details for the child during the intended travel, with the telephone communication to be facilitated with the other parent during this time.
That the parties keep each other notified at all times of the child’s treating medical practitioners and their contact details.
That the mother and father do all acts and things and sign all necessary documents to provide (and not revoke) an authority and direction to the child’s medical practitioners to promptly forward to the other party copies of all reports, letters and notices ordinarily received by parents and that the mother and father be at liberty to discuss the child’s medical condition and treatment with the child’s treating medical professionals.
That each party notify the other as soon as practicable of any accident or illness requiring the child to have any medical treatment or hospitalisation, other than treatment of a minor or routine nature.
That the mother and father, their servants and agents be restrained by injunction from:
(a)Denigrating the other parent, or any member of their household and/or family; or
(b)Discussing these proceedings or showing any documents from these proceedings to, or in the presence of the child.
That each party notify the other party as soon as practicable of any enrolment in an extracurricular activity or sporting activity and these orders shall act as authority for the other party being permitted to attend that activity.
That the parties keep each other notified of any change of address or telephone number within 7 days of any such change.
That the father be permitted to liaise directly with the child’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child’s progress.
That these orders act as authority for each party to be at liberty to attend at the child’s school for the purposes of any function or activity normally attended by parents.
Both parents attend a Post Separation Parenting Course such as Relationships Australia, Melbourne Family Relationships Centre, (omitted), (omitted): or Life Works (omitted), (omitted).
The mother to attend counselling with a family therapy focus to support manage the changing needs for X in his relationship with the father as X matures. The mother to consult with her medical practitioner to identify a suitable counsellor to undertake this work with her.
The father to attend family based counselling to understand the importance for X’s emotional and psychological wellbeing that his relationship with the mother remains respectful. The father to consult with his medical practitioner to identify a suitable counsellor to undertake this work with him.
That neither party take the child to a counsellor, psychologist or the like without written consent of the other parent.

IT IS NOTED that publication of this judgment under the pseudonym Taylor & Sage is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10643 of 2010

MR TAYLOR

Applicant

And

MS SAGE

Respondent

REASONS FOR JUDGMENT

Introductory

This is another tranche of litigation between two parents who cannot abide one another and in my view as a result of that fact are unable to agree about the best interests of their son, X, born (omitted) 2010.
The positions of both parties have shifted from time to time. The father seeks a week about regime and the mother seeks essentially to maintain the current orders, which involve X spending four nights per fortnight with his father. It is her position that the question of equal time can be revisited when X is 10 years old. Additionally there are other arguments about special days and the like.
For the reasons that follow, I am going to make orders in accordance with the recommendations of the family report writer, Ms S.

The family report of Dr J dated 7 November 2011

The parties have been litigating about X since he was six months old. The father filed an Initiating Application on 17 October 2000, which ultimately led to property orders by consent and, more relevantly for these purposes, final parenting orders made by consent on 16 November 2011. The orders included a requirement that the parties participate in dispute resolution counselling, something which has never in fact occurred.
It is sufficient for these purposes to note that Dr J observed at page 6 about the mother:
“Her account was very loose and not very coherent. She seemed to glide over conflicts and problems and could rarely give examples to support her contentions.”
Dr J concluded on page 7:
“Ms Sage impressed as a woman with a superficial, personality style. She seemed to have some significant personality problems. She impressed as rather naïve and showing some dependent personality traits. She appeared to show a strong need to be liked by others, but also seemed to have some difficulty with emotional regulation.”
Dr J was by no means entirely complimentary about the father, Mr Taylor either. On page 7 she described him as:
“… Mr Taylor was pleasant, cooperative and friendly, but showed some superficial thinking and egotistical approach.”
That observation was made in a context where the father was proposing that X live with him and his mother rather than with Ms Sage, a striking position given that X had up until then lived entirely in the primary care of his mother and was only 10 months old. At page 8 Dr J concluded:
“Assessment of Mr Taylor suggested that he is a man with rather traditional ideas and values. He impressed as rather egotistical, but struggling to understand his circumstances.”
Dr J conduced psychometric testing on both of the parents and reported on page 10:
“Ms Sage’s scores on this scale suggest that she appeared motivated to portray herself as being exceptionally free of common shortcomings, reluctant to admit to minor faults and perhaps not even willing to admit these faults to herself. People who score in the range shown by Ms Sage often also show a tendency to minimize any negative impact that their actions may have on other people or herself. Given her high level of defensiveness, her scores on the PAI could not be interpreted due to the significant distortion and minimization of difficulties she showed. Her scores on this scale were consistent with my clinical impressions of her.”
In respect of Mr Taylor, Dr J also said on pages 10-11:
“Mr Taylor’s results on the positive impression management scale also showed that he may not have answered in a completely forthright manner. His responses on this scale suggest that he tended to present himself in a consistently favourable light and relatively free of common shortcomings to which most individuals will admit to.
Despite the level of defensiveness noted, there were some areas indicated on his PAI profile where Mr Taylor described problems of greater intensity than is typical of even the most defensive respondents. These areas include a possible history of antisocial behaviour and failures in close relationships.”
It should be noted that these extracts were by no means all that Dr J had to say, and in the ultimate despite reservations (particularly about the mother’s psychiatric state, something ultimately resolved by the report of Dr S) Dr J recommended a continuation of the time regime then extant, which involved X living primarily with his mother.
Dr J concluded on page 12:
“It is my opinion that neither parent shows very much insight into how their son might be experiencing their relationship. I also have grave doubts about their capacity to prioritise their son’s needs and improve their relationship on their own. I would strongly recommend that these parents avail themselves of professional assistance in the form of someone who can perform a dispute resolution function and provide psychoeducation on an ongoing basis.”
Doubtless these observations influenced the final outcome of the proceedings in 2011.
I have set these extracts out at some length because in my opinion, having seen the parties give their evidence in this proceeding, Dr J’s assessment of the parents was entirely accurate. It entirely accords with the materials taken as a whole and the evidence that the parties gave and their demeanour while giving it.

Matters that are either agreed or not the subject of controversy

Despite the strongly felt nature of the controversy between the parties and the at times lurid allegations each makes against the other, quite a number of matters are not the subject of dispute. The father was born on (omitted) 1983 and works as a self-employed (occupation omitted). The mother was born on (omitted) 1979 and is engaged in home duties. The parents commenced cohabitation in 2006 and underwent an (religion omitted) marriage on (omitted) 2006.
For whatever reason, and this was the subject of some dispute in the earlier proceeding, the parties never underwent or registered a civil marriage. This matter was the subject of complaint on the mother’s part during her interview with Dr J.
X was born on (omitted) 2010 and the parties separated on 9 November 2010. The mother obtained an Intervention Order on 10 November 2010 and the father filed his Initiating Application in the Court on 17 November 2010.
From the start the mother’s case was one of strenuous assertion that the father had been violent to her during the marriage, verbally abusive, had threatened to kill both her and X and had generally behaved in a controlling and violent way. The father’s material categorically denied any violence whatever and asserted mental ill health on the part of the mother. Each of the parties has to an extent from time to time made assertions of mental ill health against their former partner.
I have re-read the entirety of the file including the affidavit material filed in the proceedings that ended in 2011. In the main this consists of staggeringly repetitive accusations and denials, all properly characterisable within the generalised description I have given immediately above.
Notwithstanding all these virulent criticisms of one another, the final orders made on 16 November 2011 by consent (and at a time when both parties were legally presented) provided for equal shared parental responsibility and for the child to live with the mother. A graded process of spending time was put in place by which the father’s time gradually increased as he got older, and from the age of 3 provided for time each alternate Friday from 9.00 am until 7.00 pm on Sunday in one week and from Thursday 7.00 pm until Friday at 7.00 pm during the other week.
Holiday blocks were to be for no less than two occasions per calendar year for two nights and three consecutive days. For (religion omitted) in each year the father’s weekend time was extended from 8.00 am Friday until 8.00 pm Sunday using the same cycle and there were orders that split the two (religion omitted) celebrations. Further orders were made for birthdays and Father’s Day and the like.
Changeover was required to take place from the front of the (omitted) Bank at (omitted) Shopping Centre, (omitted). The parties were both to do such things as were necessary to engage in reportable non-confidential dispute resolution counselling forthwith.

The affidavit material filed in this tranche of proceedings

The father filed his Initiating Application on 14 April 2015. Essentially he sought a regime of equal time, that changeover remain as it was and that he obtained some more time at (religion omitted). Interestingly, he did not seek an order for dispute resolution counselling.
The father’s Affidavit filed contemporaneously with his Initiating Application repeats some of the earlier history. It notes that X is in prep at (omitted) Primary School and is progressing well, that the father had re-partnered with Ms L born (omitted) 1990 and that they married on (omitted) 2014 and have a child, Y, born (omitted) 2014.
The Affidavit notes that because X has commenced primary school his time on Fridays with the father has been diminished because he is at school from 8.45 am until 3.05 pm each day.
Otherwise the Affidavit in my view is self-serving in its terms and does not take the matter much further. The father asserts a desire on X’s part to spend more time with him. He alleges that the mother does not encourage his relationship with X and attempts to undermine his role as a father (very much in the same tenor as the materials in the earlier proceeding), complains that the mother has made false allegations about him to the police and generally extols the benefits of more time for X with his father.
The mother’s first Affidavit filed on 10 July 2015 is a paragraph by paragraph response to the father’s Affidavit. As in the case of the father’s Affidavit material it involves in the main what in my opinion are lurid overstatements of minor matters of disagreement. The mother does refer at paragraph 14 to an allegation that on 5 September 2014 the father swore at her at changeover in the presence of the child. She also deposed (paragraph 19) to the child witnessing a time, “before the September incident, where the father spat at me when I attended for changeover.”
It is really not appropriate to dignify this response with any greater detail. The Affidavit is wholly self-exculpatory and wholly accusatory in its terms of the father.
The father’s responding Affidavit filed 4 September 2015 in my view likewise takes the matter no further, although of course it gives his version of the disputed events involving such matters and disputes as to who attended X's Auskick final. It should be noted that the father’s new wife, Ms L, filed an Affidavit also on 4 September 2015 but as she has not been called to give evidence I give it no weight.
The mother filed a further Affidavit on 5 November 2015. Once again it is a detailed response to the father’s Affidavit. I note that since the September 2014 incident the mother does not get out of the car at changeovers and the child is left to simply get out and go to his father. There are complaints about the father’s care of the child and also assertions that X in March 2015 informed the mother that Ms L had exposed her private parts to him and on another occasion told him to touch her breasts. Once again it is not appropriate to dignify these and other lurid assertions with further recitation.
The father’s final Affidavit filed 13 November 2015 is, together with annexures, fairly substantial. He responded I note to the assertions that he had had sex with his wife in the presence of the child by appending photographs of the bath where it was said this may have taken place, to suggest that it would not have been practicable.
Against this background of generally self-serving and frankly somewhat dispiriting materials, it is a relief to turn to the family report of Ms S dated 21 September 2015.

Ms S’s family report dated 21 September 2015

Ms S’s report commences by detailing the history of the parties’ relationship, their current arrangement for X and the applications and proposals of the parties. Ms S noted correctly that the allocation of parental responsibility was not in dispute.

Ms S noted that the father had no concerns for X in his mother’s care. She assessed Mr Taylor’s proposal at paragraph 11 (pages 6-7 of the report) as follows:
“… Mr Taylor believed it was important for X’s ongoing happiness and wellbeing that he spends equal time with both his parents. He thought this was particularly important for X now that he has commenced school and he is old enough to manage substantial blocks of time spent between the two households. Mr Taylor further stated the birth of Y, aged nine months, has been a significant development in X’s familial relationships and he believed it was important X has the opportunity to strengthen his sibling relationship with Y.”
I note, without setting it out in full, that the father dismissed all of the mother’s concerns as to X’s emotional safety at the time of the Changeover incident. He said there was no evidence that he had ever been threatening or violent towards Ms Sage during a changeover and that therefore changeover should remain as it was.
I further note at paragraph 21 Ms S recorded:
“Mr Taylor stated he had no concerns for he and Ms Sage continuing to have equal shared parental responsibility for X. He described his relationship with Ms Sage as “civil”.”
I note further that at paragraph 23 when Ms Sage’s allegations as to X being exposed to sexual material were put to Mr Taylor and Ms L, they both denied altogether that this was so.
The interview with Ms Sage unsurprisingly revealed the sort of concerns that the mother had expressed about the father and Ms L in her affidavits. I note that at paragraph 31 in dealing with changeover Ms S reported:
“Ms Sage reported finding changeover times a risk for her own safety and she believed this impacted on the ease with which X transitioned between parents. Ms Sage said she was intimidated when Mr Taylor “spat” at her at a changeover time and twelve months ago Mr Taylor dragged X from her arms.”
This was what promoted the mother’s view that changeover should be in a Police Station.
At paragraph 34 Ms S traversed the mother’s account of the Auskick end of year break up. The noteworthy part of this aspect of the report is in paragraph 34 where Ms S recorded:
“As a consequence of the parents not being able to come to an agreement that enabled X to attend this event, his needs appear to have been overshadowed by parental issues.”
Ms S interviewed X twice during the assessment process and what he said he wanted changed in that in the first interview X wanted to live with his mother and spend less time with his father, but in the second interview he outlined a pattern which went close to alternate nights with each parent. Ms S opined at paragraph 36 that his first answer was initially impacted by his relationship with his mother and I think this is entirely likely.
At paragraphs 37-38 Ms S noted:
“37. The tension in X’s engagement with his parents was observed when X first entered the waiting area with his mother and saw his father was also present. He stood between both parents and appeared to be unable to make a decision about which parent he would go to. Once his mother gave him permission to greet his father, he happily moved toward Mr Taylor. It would appear that at times X’s experiences are compromised by the tension between his parents. Given X’s age he does not have the complexity of thought to understand he can have an alternate experience of his father to that of his mother. X was observed to take his cues from his mother with whom he has a trusting relationship and her hesitancy about Mr Taylor resulted in X being unable to freely approach him on initial greeting. It is important to X’s emotional development and ability to engage in healthy relationships with both parents that Mr Taylor and Ms Sage support X in a safe relationship with the other parent.
38. X was aware of the dysfunction in the relationship between his parents and said his mother “stays in the car” so his father doesn’t scream at her and his father says “rude words” which makes him “feel sad”. It would appear that X is directly impacted by his parent’s inability to manage their feelings when together, for X he is particularly impacted by his father’s anger towards his mother. It is important for X’s sense of stability and security with both parents that Mr Taylor’s interactions with Ms Sage are respectful.”
An interview with Ms L was unremarkable.
Ms S interviewed the maternal grandmother, Ms H. The only significance of this interview is that it shows the hostility of the grandmother to the father and his family.
Ms S noted at paragraph 48 that Y when with X was entirely focused upon him. Although X was somewhat more reserved, Ms S concluded that Y was clearly used to a positive response from him and this was indicative of a developing healthy relationship between them.
An interview with the Principal of (omitted) Primary School showed that X has engaged well in classroom activities and is progressing appropriately. I note that Mr B reported Ms Sage describing Mr Taylor as intimidating but he found Mr Taylor to be appropriate at all times in his interactions with Mr B and the school staff.
At paragraphs 53 and following Ms S concluded:
“53. X’s views about where he lives and how much time he spends with either parent changed depending on which parent he had spent time with. Prior to the observation session with his mother X reported a wish to live with her and see his father for a limited time. Following time spent with both parents, X’s thoughts changed and he wanted to live equally with each parent. X’s change in thought fits with the first observation of a little boy standing statue like, half way between both parents and unable to go to either until his mother gave him permission to engage happily with his father. X’s primary relationship is with his mother. It would appear X seeks her support to engage with his father. Given Ms Sage’s concerns that X’s care needs are not adequately met when with his father, her hesitancy about this relationship impacts directly on X’s ability to engage with his father when she is present.
54. As a five year old child X does not have sufficient developmental maturity to make informed decisions about his future in relation to his family. However, his statements supported by his behaviours, indicate he has a healthy relationship with both his mother and father. He also appeared to enjoy his relationship with his half sister who is nine months of age, X was confident in his interacts with his stepmother, although this relationship did not appear to be as familiar to him as that of his father.
55. X is the only child of Ms Sage. Since X’s conception by IVF, it is understandable that her focus has been on his health and wellbeing. During the assessment there were no concerns noted for X in Ms Sage’s care. Mr Taylor confirmed X’s wellbeing in the care of his mother as she has tended to X’s care and wellbeing since his birth. Ms Sage reported a range of concerns for X in the care of both Mr Taylor and Ms L.
56. Ms Sage was concerned that X was at risk with his father as Mr Taylor undertook a range of parenting tasks in a manner she believed was unsafe, unhealthy and required X to lie to her. During the assessment X described his father as involved in his home and school life and none of his statements substantiate Ms Sage’s concerns for X’s safety in Mr Taylor’s care. Mr B, X’s principal, described X as a child actively able to engage in class independent of which parent he had spent the previous night with. X was always clean and neatly presented, he had an adequate school lunch and there was no concern for his attendance or that his readers had not been read. Ms Sage’s concerns appear to be based on her worries rather than a significant risk to his safety when spending time with Mr Taylor and Ms L.”
The report then goes on to traverse the concerning assertions made by the mother about the exposure of X to inappropriate sexual conduct and themes when in the father’s care. I note however that Ms S pointed out that the Department of Health and Human Services (“DHHS”) has not been contacted (and neither party have taken the opportunity to make further submissions which I made available to them following receipt of material from the Department) and the school had not identified any concerns for his safety in either parent’s care.
The report went on to note that if the mother’s assertions about sexual conduct were true this would be very concerning, but if they were not then her actions raised concerns for her ability to support the development of an appropriately healthy relationship between X and the father and his family. In paragraphs 59-60 Ms S continued:
“59. During the assessment process there was no information gathered which would support the allegations made by

Ms Sage that X was exposed to sexual themes. X did not indicate any concern about his relationship with his father or stepmother. Nor did he report his father or stepmother engaged in inappropriate behaviours generally, or of a sexual nature. Neither parent raised concerns that X’s behaviours are sexualised, nor did Mr B, X’s principal, identify X’s language or behaviour at school had sexual themes. Mr Taylor and Ms L presented as mature and appropriate adults who denied the allegations that X was unsafe when in their care.
60. On balance, it would appear that Ms Sage has made claims about the risk to X in the care of Mr Taylor and Ms L is not reflected in X’s experience or in reports to Child Protection. There is insufficient evidence that such a misreporting of events is a indication of a concerning deterioration in Ms Sage’s mental health, particularly as X’s school teacher and principal report Ms Sage to be an engaged and appropriate parent. It would appear Ms Sage is a parent who is struggling to think about X spending increasing amounts of time away from her and with his father. In the case there are no further allegations of risk and the court supports this assessment, a recommendation for Ms Sage to attend counselling may also be considered. Counselling with a family therapy approach may assist her to contain her concerns for X and encourage him to move confidently between both parental homes.”
Having traversed the father’s presentation in a generally favourable way, Ms S went on at paragraph 63 to say:
“Given X’s age and developmental need to have a pattern of care that is structured and routine, it is recommended he live with his mother and spend significant and substantial time with his father during the week and on weekends. That for the period X is at primary school he spend alternate weekends with Mr Taylor. In the first week from Friday after school to Sunday at 6 pm to allow X time to settle and regulate into his routine in his mother’s care in preparation for school on Monday. In the second week X to continue to stay one night with his father on a Thursday night from after school on Thursday until the commencement of school on Friday. Once X turns ten years of age and is better able to sustain longer periods away from his mother’s care an increase in the number of nights he spends with his father in the school week to be negotiated by the parents via Family Dispute Resolution. When X is in secondary school and old enough to sustain the routine of alternate weeks spent with each parent, that this option might be considered and X’s views and preferences about his living arrangements be explored.”
The report went on to recommend half the short school holidays and a minimum of two weeks in the long January school holidays with the father on the condition that the father was not working and was present for the majority of the time. The report recommended the parties be able to take X on holidays, on notice, and those important days such as (religion omitted) and New Year’s Eve alternate between the parents. The report did not recommend a change to a Police Station for changeover. Given the difficulties the parents have in actually exercising joint parental responsibility, Ms S recommended a Post Separation Parenting Course and a regime for attendance at significant events.

The submissions made and the evidence given at Court

What follows is not of course a transcript. It is taken from my notes.
Counsel for the father first indicated that the father might need an s.128 Certificate under the Evidence Act 1995 (“the Evidence Act”) as he had been interviewed by the Police and faced proceedings in early 2016. Otherwise counsel outlined the father’s proposal for week about time and more time during the (religion omitted) celebration. Counsel outlined the father’s immediate proposal which is Thursday to Friday one week and Thursday to Monday in the other week, this moving to equal time from the start of 2017.
Counsel for the mother confirmed that she seeks the orders recommended by the family report writer, although she conceded that in 2017 the father’s overnight time progress from Fridays to Mondays.
The father was called and adopted his Affidavits as true and correct. Under cross-examination the father conceded that he has spent regular time with the child since the agreed orders at the end of 2011. Much of what he had to say was unremarkable. I note that at one stage he said simply, “I want more time with my son,” although he conceded that X was very attached to both his parents.
When taxed with the amount of Child Support he pays, the father asserted that he did not know how much he earns each week because his accountant does all the work associated with the records of his business. This evidence was given in a fashion I found palpably unbelievable. The thesis that a self-employed man has no idea how much he earns only has to be stated to be rejected.
When further questioned about the amount of time he worked each week, the father said it could be 10 hours or it could be 30 hours and he would take a week off even when the child was at school. The father’s answers while giving this evidence were aggressive and I regret to say that I found his demeanour such that I found the answers quite unbelievable.
The father confirmed that he issued his current Application because he wanted to spend more time with his son and wanted him to spend more time with the father’s family. He noted that the forthcoming hearing in February 2016 was for a contested hearing.
The father was adamant that despite the family report recommendations there should be week about in the long summer holidays. He also confirmed that he was going to (country omitted) for two and a half months with his wife and daughter and his father, the latter of whom was paying for the holiday. The father confirmed that X has no contact with his mother while he is with him, but was willing to agree to such contact if the mother did so also. He said he (it was not clear whether he meant X or himself) did not mention his mother’s name in the father’s house.
He said he had moved on and that the child could talk about his mother if he wished. He does not ask X what happens to him when he is with his mother but asks what he does at home. He asks what he has to eat. The father said that he and the mother could not communicate. He said, “She slaps an Intervention Order on me and I go to court and get it thrown out.” He said the parties needed family counselling.
When asked why he had not introduced the mother to his new wife, he said, “We can’t talk. At changeover the mother stays in the car.” When pressed as to what he wanted four years ago, the father’s answers were aggressive and unbelievable. He further said that he does not discuss the current Intervention Order proceedings with his wife. He said he only discusses these with his solicitor. This answer was in my view ridiculous. Of course he would discuss such an important matter with her. The fashion in which the father gave these answers leads me to disbelieve him.
The father denied spitting on the mother at changeover in the past. When it was put to him that he was aware that the mother was fearful of him he replied, “So she alleges.” He said, “We had arguments when we were together.” He then asked counsel rhetorically, “You tell me you’ve never argued with your wife.” This remark, made in a sneering and aggressive way, did the father no credit.
The father said he had never been disrespectful to the mother but that they could not communicate. He said both forgot to focus. The father conceded that the mother has been the primary carer of X all his life but said he was secure in both homes. He said, “I want more time with my son. He is older. Anyone would. There is nothing about the mother’s care of the child I complain about.”
The father said counselling would be helpful but when asked why this had not occurred he said it just has not happened. When it was pointed out that Dr J had recommend counselling he said he would be willing to do it.
The father said that he and his wife encouraged a loving relationship between X and his sister. The father reiterated the various complaints he had made in his affidavit about the Auskick incident. He said the only time he knew where the footy was taking place was when the mother wanted to go to the presentation night. He said this was his time so the mother did not go.
The father admitted that he had not agreed with the mother’s request for a holiday in Queensland because she wanted to go in February. He did however say that she had been to Queensland three to four times and he had agreed. I would interpolate again and say this was one aspect of the father’s evidence that was given in a convincing manner and I accept it.
In re-examination the father was taken again to the regime of time he was proposing. He said, “When the child is 10 I will have missed all his young life. I missed three months when we separated and lost a lot.” The father’s comments were wholly self-orientated. It is all about what he perceives as “his” time.

The evidence of the mother

The mother adopted her Affidavits as true and correct. She confirmed that she agreed with Ms S’s recommendations. She agrees with equal time in the summer holidays 2016 to 2017 but seeks blocks of one week. She agreed that overseas travel and interstate was acceptable provided there was make up time.
Under cross-examination by counsel for the father, the mother did not agree that the 2011 orders had been followed in respect to holidays. She said she had asked for two holidays and that the father makes it very difficult. The father does not agree with times and dates and makes everything very difficult for her. The mother gave an extensive account of her alleged difficulties in obtaining the father’s agreement to holidays, but in my view her answers were unresponsive to the questions put and argumentative in their character.
The mother said overnight Sunday could commence in 2017. For her changeover was a problem. She said that X was too young to sustain a further night with his father at the moment.
The mother had hinted darkly at criticism of the school Principal, suggesting that his teacher had questioned the child about his father. She took issue with whether or not X had done his homework but said that X was not saying things that she wished to hear. She did not accept that what X had told her might be in any way unreliable.
The mother confirmed that X is very nervous around the two parents because he knows something is not right between them. She says she had tried everything and told X that, “He is your father,” and always tells him that, “He is your father and that is good.” The mother agreed with telephone contact and also agreed for make up time in respect of holidays. She was adamant that four nights was the maximum the child could spend with the father.
The mother confirmed that she supported equal shared parental responsibility. She denied being obstructive in relation to X’s treatment by a psychologist. She confirmed that she had not herself seen a counsellor but would consider this in the future. She would accept family counselling.

The mother repeated concerns about X’s safety in his father’s care and it should be noted that I found this evidence unconvincing. When taken to her Notice of Risk filed on 10 July 2015, which asserted no risk of family violence or abuse and indeed no risk otherwise at all, the mother replied that this had been prepared by her solicitor without instructions and she was not aware of it. This answer is palpably untrue. I do not accept it. The mother was legally represented at the time by a reputable firm of solicitors. It is wholly apparent that they would not have taken such a step without instructions.
The mother said things had changed since July 2015. The father was still controlling her by text messages and never agreeing. She always had to give in. He would find out stuff about her through her son. These observations were mainly based upon what her son told her.
The mother was cross-examined about the incident in September 2014. She was also taken to the so-called spitting incident which she says X still remembers. While the mother’s evidence in a number of respects was unsatisfactory, she was categorical that the father did spit on her and this was evidence given with conviction which I accept.
Otherwise the cross-examination was in my view generally unremarkable although I note that the mother seeks that (religion omitted) be divided, being a three day period in each instance. The theme of her evidence was essentially that she always has to give in to the father who is controlling, although she conceded that the father loves X and that X loves his sister.
Although the mother agreed that Police Stations would attract undesirable people, she said that changeover should occur at a Police Station as there was no other choice. She thought a Post Separation Parenting Course was a good idea and would be prepared to undertake one whether the father did or not.
In re-examination the mother tendered exhibit R1 being a copy of the Interim Intervention Order made on 7 October 2015. Following the tender of this document I acceded to an Application for further cross-examination. The mother said a psychologist had told her to apply for an Intervention Order. She tendered as exhibit A2 her statement to the Police and said that the father’s conduct should not be continuing.

The evidence of Ms S

Under cross-examination by counsel for the father, Ms S confirmed that she had been contacted by the mother on 29 September 2015. She did not recall telling the mother to go to the DHHS. She did not tell her to get an Intervention Order.
When asked about the flow of information to the mother from X, Ms S said that if X started the conversation that would be okay but if started by a parent it can be a problem. She was unable to say who started this particular conversation.
Ms S confirmed that the child watches his parents and required approval to go to his father. He was trying to work out what his parents expect. He has an engaged relationship with both parents, but the parents stop him from engaging as he would prefer. X is doing well at school and the Principal is pleased with his progress. He is not having major problems at the moment but things may become problematic if his parents continue as they are.
X is a delightful child and Ms S did not see any behaviours of a child who is struggling. A professional intervention of an appropriate sort would not damage the child if there were six sessions.
Although the mother worries about X when he is away from her, there was no way in which X could be described as enmeshed with his mother. Ms S had no concerns about the child’s relationship with his father or stepmother. She was opposed to changeover at a Police Station which was inappropriate. It would be the last choice. Children tend to be anxious as Police Stations are uncomfortable places. Ms S continued to support equal shared parental responsibility.
Under cross-examination by counsel for the mother, Ms S confirmed that she did not recommend week about time. She said that if there was an absence of agreement, the mother’s views should prevail on questions of education and health. When it was put to her that McDonald’s might be an appropriate place for changeover, Ms S replied that (omitted) is open on Saturdays or changeover could be left as it is. She was inclined to leave matters as they are but if there were risks there might be difficulties. In any event McDonald’s might be problematic because of the interaction between the parents.
Ms S was asked about counselling and responded that it was important that the parents interact with X’s psychologist, if there is one. Also it would useful if they went to the same person but this could be problematic because there could be alignment. This was an important matter.

Observations about the credit of the witnesses

I have already observed in passing some aspects of the evidence of both the father and the mother that were thoroughly unsatisfactory. I regret to say that neither impressed me as being a person of sufficient insight to be able to objectively recall events in a fashion that truthfully analysed what had occurred to them. Both were at times unresponsive, argumentative, and in the father’s case aggressive.
Some of the answers they gave were palpably unbelievable. In a general way it is sufficient to say that both were very poor witnesses whose evidence must be approached with considerable caution. For that reason these reasons for judgment have concentrated upon the evidence of Dr J, and more particularly Ms S.
Ms S was an excellent witness. She is a professional of considerable experience giving her evidence within her area of expertise. She was scarcely challenged in cross-examination and to the extent that she was, she was not moved from her conclusions.

Findings on the facts

It will be noted that I have dealt in a relatively cursory way both with the parties’ affidavits and their oral evidence. The evidence they gave is entirely consistent as I have earlier indicated with Dr J’s impressions of them. Both lack insight and are self-orientated to the detriment of their child.
As I find during the relationship between the parents, the father would have been at the very least perceived by the mother to be controlling and abusive. I am not able to say that he has actually assaulted her. He has certainly never been convicted. What is palpable however is that the mother is genuinely fearful of him. That the father has expressed doubts about this speaks volumes for his lack of insight.
Where I am more certain in my findings is the father’s behaviour at changeover in 2014. I entirely accept that he spat at the mother as the mother says he did. His conservative upbringing and views led him to condemn the mother’s more freestyled clothing and I have no doubt that he called her a disgrace and spat at her. Furthermore I have no doubt that he swore at her at the very least upon the occasion in September 2014 as the mother asserts. I repeat I have seen both the parties give their evidence and this aspect of the mother’s evidence is one I accept.
I have no doubt that the father continues to be perceived by the mother as controlling and difficult. I accept the father’s assertion that at the least provocation the mother is likely to go to third parties, and I note that Ms S denied telling the mother to seek an Intervention Order and otherwise denied the mother’s assertions about the September 2015 incident. This conclusion reflects very poorly on the mother’s credit as a witness overall.
As is so often the case, I think the truth is somewhere between the parties’ positions. On the one hand the father is not the blameless, non-violent, non-aggressive person he makes himself out to be. On the other hand he is nowhere near as bad as the mother asserts.
It is understandable as Ms S noted that the mother should have a very keen concern about this longed for son (he was after all conceived by IVF) and that she worries about him when he is not in her care. Lacking insight as she does, she attributes all sorts of misconduct to the father. The objective evidence shows that X is perfectly appropriately looked after when in his father’s care both by his father and his stepmother.
Given these findings, which can be taken to apply as it were in a global way to the mutual accusation and self-exculpation of the parties, it is appropriate to proceed by reference to the statutory pathway.

The Statutory Pathway

The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65]    In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)    the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends and holidays; and
(b)    the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.    The child’s best interests remain the overriding consideration.”

Section 60CC(2)(a); the primary considerations

Everyone agrees that it is the child’s benefit to have a meaningful relationship with both of his parents. As I find, and this is a matter

I will return to under s.60CC(3), the mother’s capacity to foment

a meaningful relationship between X and his father is undeniably questionable, but at least in principle she concedes the benefit of the child having a good relationship with his father and his father’s family.
In this case there is however a need to balance that desirable relationship with the need to protect the child from physical

or psychological harm or from being subjected to abuse or family violence (within the broad definition in s.4A of the Family Law Act 1975 (“the Act”)). Pursuant to s.60CC(2A) I am required to give this second consideration greater weight.

The additional considerations; section 60CC(3)(a)

Everyone agrees that X is simply too young for his views,

to the extent that they are expressed, to be given any significant weight.

I note the concerning pattern that emerged during the interviews with Ms S where it is clear that whether subconsciously or consciously first his mother and then his father produced different outcomes within a short period of time so far as X’s expressed wishes were concerned.

Section 60CC(3)(b)

The child has a well-established relationship with each of his parents. Ms S’s report could not be clearer. It is concerning that the child needs the mother’s approval to even go to his father when the parents are together but notwithstanding this reservation, it is clear that the child has a good relationship with each parent. Indeed, unless I misunderstood the matter, for all their mutual criticism each of the parents appears to concede this. Additionally X has a good relationship with his stepmother (although it is less developed) and appears to have an emergent and very satisfactory relationship with his half-sibling, Y.
Although there has been some glancing reference to extended families, and it is clear from Dr J and Ms S’s reports that each of these parents is closely interrelated with their extended families, there is nothing to suggest that X has anything other than at least a satisfactory relationship with those members of each of his parents’ extended families with whom he comes into contact. It is not possible to say how frequent this contact is, although I note the father conceded that X has slept in a number of different households when in his care, but it must be more than wholly fleeting.

Section 60CC(3)(c)

There is no doubt that each of these parents have taken such opportunities as are available to them to participate in making decisions about making longer term issues in relation to X and to spend time and to communicate with him. Indeed this case arises at least in large part out of the desire of each parent to have more (in the case of the father) or certainly no less (in the case of the mother) time with X.

Section 60CC(3)(ca)

The mother has always been X’s primary carer. The parents separated when he was only a few months old. Given that X is now at school and doing well, notwithstanding the various difficulties in his life, it stands to reason that the mother has more than adequately fulfilled her obligations. The father has endeavoured to play a role in X’s life since separation. His first Application to the Court was filed a matter of days after separation itself.
Given the conclusions of Ms S which I entirely adopt, it must be accepted that the father has at least adequately addressed most of his obligations. One area in which I found his evidence wholly unconvincing as I have earlier stated is the measure of support he gives the mother. I am comfortably satisfied that it is more probable than otherwise that the father deliberately minimises his declared earnings to reduce the Child Support he has to pay. A man who goes as far as to say he does not know how much money he makes is not a man one can believe.

Section 60CC(3)(d)

The very significant increase in time that the father seeks for this still very young child reflects a measure of his lack of insight. Given the evidence of Ms S and her recommendations it is clear that an immediate move to equal time is wholly contraindicated. The effect upon the child would be deeply disturbing. As Ms S observed he needs a regular and settled lifestyle in the primary care of his mother.
Although much has been made of X’s attraction to his half-sibling (albeit that it was the half-sibling who was more demonstrative in Ms S’s presence) the half-sibling is still very young and the relationship must of necessity be a developing one. While I certainly bear it in mind, it is not a matter that should give rise to the outcome the father seeks.
It should further be noted that equal time regimes are generally thought to work better when parents can cooperate well and are attended by considerable difficulty where they do not. This case is a classic illustration of the latter sort of case.
It should be noted that it was my clear impression that the father’s emphasis upon his desire for more time with his child was very much self-focused. There was a great deal of emphasis of, “I want more time with my son. By the time he is ten I will have missed half his young life.” The father’s application is not about X’s best interests. It is about the father’s desire to have the child in his care more often.

Section 60CC(3)(e)

There is no difficulty so far as the expense is concerned of X spending time with either of his parents. There is a real practical difficulty with this child communicating with either parent when he is in the household of the other. The clear picture I get is that apart from the various questioning processes to which X is subjected (and I am quite satisfied that it happens to an extent at least in both households) the general tenor of the evidence of both parents is that there is little, if any, talk of the other parent when X is in their own care. This reflects the hostility between the two parents.
These practical difficulties must be addressed in X’s best interests. I will be ordering the parties not only to undergo a Post Separation Parenting Course but to fulfil the order originally made in 2011 to seek out and obtain the benefits of counselling to assist them in their interrelationship. Neither party in any way satisfactorily explained why this had not occurred already.

Section 60CC(3)(f)

Although the parties (in particular the mother) had much to say by way of criticism of the other, it is clear from the evidence as a whole that X is well cared for in both households. To the extent that there is any objective evidence, it is to this effect and I give full weight to the reports made by the school Principal to Ms S and to Ms S’s conclusions as set out earlier.
The only reservation I should make clear is that already indicated, namely that while the father is well able to look after X’s physical needs, he needs to appreciate that it is X’s emotional needs that should be at the forefront of his considerations, not his own. Although there is but little said about Ms L, the father’s new wife, there is nothing to suggest that she is not able to provide such appropriate care as may be necessary from time to time.

Section 60CC(3)(g)

I have already, regrettably, had occasion to comment more than once about the inadequacies in the personalities of the two parents. The remarks expressed by Dr J do not need to be set out in full again. They conform entirely with my own assessment of these two self-oriented and somewhat immature individuals, both of whom markedly lack an element of insight. Nonetheless they are the parents that X has and whatever their weaknesses it is clear that they both love him and can provide for him.

The deficiencies in their personalities however cannot be wholly ignored as this is what has given rise to the conflict between them and the incipient difficulties that X is starting to experience as a result.

Section 60CC(3)(h)

This is irrelevant.

Section 60CC(3)(i)

This has probably already been dealt with sufficiently. Each of these parents has an understandable but obsessively proprietary sense of ownership of X. As I find that is what this conflict is in large part about. It is understandable since they both love him but their attitude to the responsibilities of parenthood is coloured by the extent to which they are unable to put their own differences aside to concentrate on X’s best interests.

Section 60CC(3)(j)

There has clearly been family violence at least when the father spat on the mother and swore at her. I have no doubt that the parties exposed X at the very least to significant arguments when they were together. Nonetheless while these are concerning matters, they are largely historical. The proceedings due to come on in February 2016 arising as is said from the incident in September 2014 are ones about which it is not possible for me to make any conclusive findings.

Section 60CC(3)(k)

As I understand it, there is an Intervention Order presently in place but this will be the subject of a contested hearing in February 2016

(it should be noted that it is not quite clear to me even despite the exhibits filed whether this is a proceeding for a breach of an Intervention Order or simply a contested Intervention Order itself. It does not matter for present purposes).

Section 60CC(3)(l)

I have noted with some concern Ms S’s assertion that the question of equal time might be revisited when X turns ten. These parties do not need further litigation and more particularly X does not need the stress that it will impose on his parents and then on to him as a result, even to the extent that they are both able to quarantine X from their dispute. Given their past history of failure to do so, I would doubt that this would be the case.
What the parties really need is to address their interpersonal difficulties in a constructive way concentrating not upon their own mutual dislike but X’s best interests. The Post Separation Parenting Course and counselling which I am going to order represent a far better way forward. If X eventually decides he wants more time with his father, plainly the parents will need to address that and hopefully in a cooperative and sensible way. The orders that I make will be final orders and change should evolve only hopefully by consent.

Section 60CC(3)(m)

In my view there are no other matters that are relevant.

Conclusion

In the circumstances described it is clearly appropriate to make the orders that Ms S has recommended. The spend time regime will be that indicated for 2016 in her report. I note that the mother conceded that X’s overnight time on his alternate weekend could expand to Monday from 2017 onwards and I see no reason why that should not occur.
I do not for these reasons indicated propose to make the orders suggested by Ms S in relation to what happens when X turns 10 years of age.
School holiday time will be as recommended by Ms S. It should move to half school holiday time in the long summer holidays in 2017. In that instance the time should be week about.
The dispute about observing the celebration of the (religion omitted) twice per year simply reflects the desire of each parent to have the child with them on these important occasions. There is nothing indicating one way or the other that the orders either parent seeks is other than to benefit the parents and the families rather than X himself. In the absence of further agreement (and there was some suggestion in the mother’s counsel’s closing submissions that there might be such agreement) the existing regime will continue.
So far as changeover is concerned I accept the evidence of Ms S. A Police Station is a last resort and for all the difficulties that have obtained we are not at last resort stage.
I accept the recommendations of Ms S that the parties attend a Post Separation Parenting Course. I also accept that the mother should attend counselling with a family therapy focus to support and manage the changing needs for X in his relationship with his father. I will make the order suggested by Ms S.
I will make the similar order sought by Ms S in relation to the father. I am also minded, notwithstanding these orders, to repeat the order made by consent in 2011 for both parents to attend upon Reportable Dispute Resolution Counselling, (although I have not included it in the draft Orders). It may be thought that this might involve an excessive quantum of counselling for the parties and I will hear the parties as to that aspect of the matter.
I have prepared draft orders to give effect to these conclusions but will give the parties an opportunity to consider them and make any further submissions before final orders are taken out.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 25 January 2016

[2016] FCCA 80

25 January 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness